Madras High Court
Suriya Narayana Iyer vs Palanichamy on 13 September, 1996
Equivalent citations: (1997)1MLJ95
JUDGMENT S.S. Subramani, J.
1. Defendant in O.S. No. 100 of 1982, on the file of Subordinate Judge's Court, Tenkasi is the appellant.
2. Respondent herein filed the above suit for the following reliefs:
(a) pass a decree of declaration of the plaintiff's right to be in possession as cultivating tenant in the plaint schedule lands;
(b) pass a consequential decree of permanent prohibitory injunction against the defendant restraining him and his agents from interfering with the plaintiff's possession and enjoyment of the plaint schedule lands permanently;
(c) award the costs of this suit to the plaintiff; and
(d) grant such other relief or reliefs as the Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.
3. In the plaint schedule, two items are included. They are, 60 Cents in Survey No. 46 and 1-70 acres in Survey No. 48 with all trees therein [Italics]. It is the case of the plaintiff that the plaint schedule lands belong to the defendant, and the plaintiff is cultivating the said lands with the help of his family members. He is a recorded tenant and his name has been registered in the Record of Tenancy Rights. He has been in continuous possession and enjoyment of the plaint schedule lands for the past about 26 years, and all these years he has been paying 20 'Kottahs' of paddy as annual rent to the defendant. He has not committed any default. It is said that he has raised coconut trees in a portion of the plaint schedule lands soon-after he took lease of the property with the permission and on the request of the landlord/ defendant. It is further said that the plaintiff is enjoying the coconut trees as one of the conditions of the lease and the 'pattom' of 20 'Kottahs' of paddy cover the land in which coconut trees and are cannot trees have been raised by the plaintiff. Plaintiff has further stated that on 10.3.1979J defendant proposed to take away the portion of the land in which coconuts stand from his possession and lease it to some other person, and also threatened to evict the plaintiff forcibly in case of objection. It is said that the defendant has no manner of right whatsoever to dispossess the plaintiff of the plaint schedule lands arid the trees therein. The plaintiff is also enjoying the lands and trees owned by the defendants and lying adjacent to the plaint lands. Plaintiff has taken steps to record his name as tenant with regard to that piece of land. He took possession of that adjacent piece of land with an extent of 37 cents subsequent to March, 1973. It is on the basis of these allegations, the suit was filed for the above reliefs and court-fee was paid under Section 25(d) of the Tamil Nadu Court-Fees and Suits Valuation Act.
4. The defendant, appellant herein, filed a written statement stating that the description of property is not correct and in the 60 cents and 1.70 acres situated in Survey Nos.46 and 48, there are no trees. The trees are situated only in the adjoining portion, and improvements was not the subject-matter of Record of Tenancy Rights proceedings. He said that adjoining 1 acre 70 cents of land, the appellant is owning another property included in Survey No.47, and in that property there are various coconut trees which belong to him exclusively and the same are not included in the tenancy claimed by the plaintiff.
5. On the above pleadings, the trial Court raised the following issues for consideration:
(1) Whether the plaintiff is a cultivating tenant of the plaint schedule lands and whether he is in possession and enjoyment of the same?
(2) Whether the plaintiff is entitled to the relief of declaration and injunction?
(3) Whether the trees are included in the lease?
(4) To what relief is the plaintiff entitled?
6. The trial court examined the parties and marked Ex. A-1. After examination of parties, a Commissioner was deputed, who prepared Ex. C-1 Report and Exs. C-2 and C-3 Plans. It came to the conclusion that on the basis of Ex. A-1, plaintiff is a cultivating tenant and, relying on the Commissioner's Report, it came to the conclusion that the trees are also included in the property. It further held that there is no bar for granting a declaration since, the matter has already been adjudicated by the Record Officer and the plaintiff claims only that right which is already determined under Ex. A-1. Since the plaintiff apprehended interference in his right declared under Ex. A-1, the relief is not barred under Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (X of 1969). The suit was, therefore, decreed as prayed for.
7. When the matter was taken in appeal, lower appellate court also confirmed the finding and dismissed the appeal.
8. It is against the concurrent judgments of both the courts below, this second appeal is filed.
9. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:
(1) Whether the suit as framed for declaration and injunction is maintainable? and' (2) Whether the declaration and injunction regarding the tenancy right over the 'thope' portion on paddy rent is legal and justified?
10. In the meanwhile, plaintiff filed an application before the Special Deputy Collector, Revenue Court, Tirunelveli, for fixation of fair rent under Section 9 of the Tamil Nadu Cultivating Tenants Payment of Fair Rent Act, 1956. On receipt of the application, the appellant filed an application for staying the proceedings in the fair rent application in view of the pendency of the Second Appeal. The stay application was dismissed by order dated 20.1.1988. the same is challenged in the revision petition.
11. Learned Counsel for the petitioner concerned that since the second appeal itself is coming up for final disposal, nothing survives in the revision petition and the same may be treated as infructuous. Accordingly, the civil revision petition is dismissed as having become infructuous. No costs.
12. In the second appeal, learned Counsel for the appellant contended that the suit being one for declaration of the plaintiff's right to be in possession of the plaint schedule items as cultivating tenant, and for a consequential injunction, there is a statutory bar under Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act X of 1969). Section 16-A was added by Amendment by Act 34 of 1972. It reads thus:
No civil court shall have jurisdiction in respect of any matter which the record officer, the District Collector or other officer or authority empowered by or under this Act to determine no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act.
[Italics supplied]
13. Exclusion of jurisdiction of civil court is not to be readily inferred unless it is specifically or by necessary implication excluded. Section 9 of the Code of Civil Procedure deals with the same. The bar of jurisdiction under Section 16-A (extracted above) is in respect of those matters which the Record Officer, District Collector or other officer or authority empowered by or under that Act, has to determine. The matters that have to be determined by those Officers are provided in Section 3 of that Act. Sub-section (2) of Section 3 says that the Record referred to in Sub-section (2) shall contain the following particulars, namely, (1) the survey number or sub-division number, extent and local name, if any; (2) the name and address of the landowner; (3) the name and address of the intermediary, if any; (4) the name and address of the tenant cultivating the land; and (5) such other particulars may as, be prescribed. For preparing a record of tenancy rights which should contain these facts, a procedure is also provided under that Act.
14. The scope of Section 16-A of the said Act came for consideration by a Full Bench of this Court and the decision is reported in Periathambi Goundan v. The District Revenue Officer, Coimbatore and Ors. (1980) 2 M.L.J. 89. The question that arose for consideration was, whether the bar under Section 16-A will apply to suits that were instituted even before the amendment Act of 1972, and also how far the Civil Court's jurisdiction is ousted by virtue of that provision. The Full Bench said that in respect of suits instituted before the Amendment Act 34 of 1972, the Civil Court will have jurisdiction to decide all matters and the bar under Section 16-A will not apply. But in respect of suits filed after the Amendment, it has been held in paragraphs 36 and 37 of the said judgment (at pages 101 to 103 of the Reports) as follows:
We shall now proceed to consider the first aspect of the matter. As far as the first aspect is concerned, as we have pointed out already, we have to ascertain the matters covered by Section 16-A with reference to the other provisions of the Act dealing with the matters to be determined by the authorities functioning under the Act. Two provisions in the Act which are relevant in this behalf are Section 3(2) and Section 14(1), which we have extracted already. Section 3(2) of the Act refers to the particulars which the record, directed to be prepared under Sub-section (1) thereof, should contain, while Section 14(1) provides for a certified copy of a record being annexed to an application made in pursuance of the provisions of the enactments enumerated therein. The object of the Act as well as the provisions contained in Section 3(2) makes it clear that a Record Officer or the Appellate or Revisional Authority has to determine the following matters - (1) the survey number or sub-division number, extent and local name, if any, of the land let for cultivation by a tenant; (2) the name and address of the landowner; (3) the name and address of the intermediary, if any; and (4) the name and address of (he tenant cultivating the land. It may be prima facie stated that these are the four matters which are required to be determined by the Record Officer or the appellate or revisional authority under the provisions of the Act. However, the necessity to determine these questions may occur in the context of different controversies and not purely on a specific dispute with respect to these particulars alone. Even the determination of the particulars enumerated in Section 3(2) cannot be in isolation in respect of any one particular matter but can only be in the context of preparing the approved record showing the particulars in respect of the land and who is the tenant and who is the landowner. For instance, the statutory requirement for the preparation of a record under the Act is that the land must have been let for cultivation by a tenant. A controversy may arise whether the land has been let for cultivation by a tenant at all. The question to be considered is, whether the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act so as to bar the jurisdiction of the civil Court under Section 16-A. From the language of Section 3(2) it cannot be stated that the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act, though the determination of that controversy is basic and fundamental to the exercise of the jurisdiction by the Record Officer and the other authorities under the Act. The very object of the Act is to provide for the preparation and maintenance of record of tenancy rights in respect of agricultural lands and therefore if there is no tenancy in respect of a land, there is no question of any further particulars being determined. This aspect is made clear even from the definition of the expression "landowner' occurring in Section 2(5) of the Act, because, according to the said definition, 'landowner' means the owner of the land let for cultivation by a tenant and includes the heirs, assignees or legal representatives of such owner or persons deriving rights through him. Consequently, the controversy as to whether a particular piece of land has been let for cultivation by a tenant or not is one constituting the jurisdictional issue which a Record Officer has to decide before he can determine any other matter under the Act. But that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, because to hold so will enable the statutory authorities to assume jurisdiction by erroneously deciding the jurisdictional issue. If the controversy arises, the authorities functioning under the Act have necessarily to decide the same, because a decision on that controversy alone will determine the jurisdiction of the authorities functioning under the Act. If the decision is that the land has been let for cultivation by a tenant, then the Record Officer will have jurisdiction to determine the further particulars provided for in Section 3(2) of the Act. If, on the other hand, the decision of the controversy is that the land has not been let for cultivation by a tenant there is no question of there being any tenancy rights in respect of the said land and consequently, there is no question of the Record Officer ascertaining or determining any further particulars in this behalf. Therefore, if such controversy arises, that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, and any determination of that controversy by the authorities can be said to be only incidental to the assumption of jurisdiction by the authorities under the Act. Subject to this qualification it can be held that once the Record Officer or any other authority functioning under the Act has come to the conclusion that the land has been let for cultivation by a tenant, the matters provided for in Section 3(2) have to be determined by the Record Officer, or other authority functioning under the Act, and to that extent the jurisdiction of the civil court is barred under Section 16-A of the Act.
With particular reference to the facts of this case, as the Record Officer had jurisdiction to decide the name and address of the tenant cultivating the land, if there are competing claims by two person that they are cultivating tenants he had necessarily to decide that question. In all matters which may arise incidental to the determination of the matters mentioned in Section 3(2), the Records Officer or the appellate or revisional authority cannot be said to have exclusive jurisdiction and with reference to those matters, the jurisdiction of the civil court cannot be said to have been barred or ousted under Section 16-A of the Act.
15. The above principles were reiterated by Ratnam, J. (as he then was) in the decision reported in Pankajam and Ors.v. Chinnasamy Naidu (1984) M.L.J. 345. After extracting the relevant passage in the decision of the Full Bench of this Court (referred to supra), the learned Judge held thus:
...As seen earlier, the lower appellate Court had declined to grant the relief of declaration in favour of the respondent that he has right to enjoy the properties as a cultivating tenant. Though the relief is couched in the form of declaration, it really involves an adjudication and recognition of the rights projected by the respondent as a cultivating tenant and declaring such rights in favour of the respondent. Admittedly, in this case, proceedings had been taken under the Act and at the earliest point of time the respondent was registered as a cultivating tenant, but without notice to the appellants and as a result of an appeal preferred by the appellants, that order came to be set aside and the matter was remitted. Though subsequent to the remit order, the respondent claimed that he was recorded as a cultivating tenant, yet, that order has not attained finality.
In this case, the very letting of the suit properties to the respondent for cultivation had been disputed and though it may be that the authorities have to decide that question as a jurisdictional fact before considering the other matters which would be relevant under Section 3(2) of the Act, yet, those are all matters over which the Record Officer or the other authority functioning under the Act alone will have jurisdiction and the civil court cannot go into those questions. If the civil court cannot proceed to investigate whether the respondent is a cultivating tenant or not then equally it cannot declare that he has such rights. The lower appellate court was, therefore, quite justified in holding that having regard to the provisions of the Act, the relief of declaration could not be granted in favour of the respondent. The consequential relief of injunction, if at all, could be granted only upon a finding that the respondent is a cultivating tenant. If the court cannot go into that question, then it does not appear as to how the court can proceed to protect the alleged possession of the respondent as a tenant against the appellants 2 and 3, who are the real owners of the properties. The consequential relief of injunction depends upon the adjudication with reference to the status of the respondent and when that cannot be done by the civil court even according to its own finding, then the consequential relief also cannot be granted. It has to be remembered that the relief prayed for by the respondent in the suit was not for a bare injunction as was the case before Ramanujam, J. in Palanisami v. Ramaswami Gounder. The considerations adverted to by the learned Judge in the course of his judgment do not apply to the instant case where the suit is not one for a bare injunction. The illustration given in the judgment of the Full Bench already extracted and the decision in Ponnusami v. District Revenue Officer, North Arcot, would cover this case.
16. On the basis of the above binding precedents, let us consider how far the contention of the learned Counsel for the appellant can be accepted.
17. I have already extracted the section wherein the jurisdiction is regarding those matters which the authorities under the Act have to determine. 'Have to determine' means a matter which is not already adjudicated and the matter which is pending issue which calls for a decision. If the matter is already decided, even the Record Officer or the authorities under the Act cannot again re-determine the issue on the principle of res judicata. The principles of res judicata applies not only to civil court but also to all forums the decisions of which will affect the rights of parties. Once the status of a person, whether he be a cultivating tenant or not, is already determined by I the record officer it cannot be re-agitated before the f authority and the exclusion of jurisdiction applies only to those cases. It does not arise for consideration in respect of a matter regarding which a decision has already been taken by the authority and only a consequential relief is prayed for in pursuance of such a decision. The civil court is also not adjudicating the rights between plaintiff and defendant as to whether he is a cultivating tenant or not, or deciding any matters provided under Section 3(2) of the Act. The civil court is only accepting Ex. A-1 and it has to consider only the question whether the plaintiff is entitled to a relief consequent to Ex. A-1. The bar under Section 16-A of the Act will apply only when an adjudication is required. If there is already an adjudication, the rights of parties are governed by that decision. The principle of res judicata prevents a new investigation and also prevents a new decision on the same set of facts.
18. In this case, plaintiff alleges that after Ex. A-1 defendant attempted to interfere with his possession and, therefore, wants to get a declaration that his possession as a cultivating tenant be protected. Section 16-A of the Act is not a bar for granting the said relief. The contention of the learned Counsel for the petitioner/(appellant) cannot, therefore, be accepted. But, this finding on substantial question of Law No. 1 is not sufficient to dispose of the second appeal.
19. While stating the facts, I have already extracted the schedule of property wherein it is said that the extent of the property leased is 60 cents in S. No. 46 and 1.70 acre in S. No. 148. The trees therein are also included and shown in the Schedule. In paragraphs 4 and 6 of the plaint, it is further alleged that the plaintiff has raised coconut trees with the consent of the defendant, i.e., the appellant herein, and in paragraph 6, it is said that even in respect of the adjoining land also, he has taken possession and there are coconut trees therein. A reading of Ex. A-1 shows that it is only a bare land for which record or tenancy right is given. Trees are not mentioned therein. No evidence has also been let in to show that in Ex. A-1, trees were also the subject matter of the proceedings. Even though in paragraph 4 of the plaint, it is said that it was the plaintiff who has planted the coconut trees with the consent of the landlord, when he seeks a declaration that he is a cultivating tenant in respect of the trees also, the claim seems to be inconsistent. If it is his case that he planted the coconut trees, there cannot be any question of landlord and tenant in respect of those trees. It is only an improvement made by him, and in spite of the planting of coconut trees, the quantum of lease is only 20 'kottahs' of paddy. Admittedly, the property is a paddy land, a portion of which has now been converted into a coconut thope. When the appellant (defendant) disputes the claim of the plaintiff that he is a tenant in respect of the coconut trees also, a question arises for consideration whether he is a cultivating tenant in respect of those trees also. To that extent, there will be a bar under Section 16-A of the Act.
20. When this fact was suggested to the learned Counsel for the respondent, he said that the trees are part of the land and, therefore, it need not be separately described. If that he so, the statement in paragraphs 4 and 6 and the schedule cannot be correct. Courts below were of the view that the trees form part of the land and therefore declaration could be granted on the basis of Ex. A-1. When there is nothing in evidence to show that the trees were also the subject matter of Ex. A-1 proceedings the findings of the courts below cannot be accepted.
21. To substantiate his case that trees also form part of the land, learned Counsel for the respondent relied on Ex. C-1 Report and Exs. C-2 and C-3 plans. Even though the same were prepared in the presence of Superintendent of Survey and also in the presence of parties, a reading of the Report makes it clear that the same was done without any measurement. That apart, from the Report it can be seen that portion of Survey No. 47 is also being treated as portion of Survey No. 48. In paragraph 3 of the Report, the Commissioner has said thus:
The portion marked as F, D, E, G is part of S. No. 47, but it has formed part of S. No. 48 and the plaintiff has raised plantain crops in it....
Even though the extent is marginal, one thing is clear, namely, that the Commissioner has taken note of some property which is not the subject-matter of record of tenancy right proceedings. When there is a dispute as to whether the trees are included in the survey numbers which are the subject-matters of Ex. A-1 proceedings, and when Ex. A-1 does not show that the same was also taken into consideration while preparing the record of tenancy rights, it can only be concluded that the plaintiff cannot get a relief in respect of the trees. The suit is one for declaration of his right to be in possession as a cultivating tenant. That means, his status as a cultivating tenant is to be declared in respect of the trees also, and an injunction is sought for only as a consequence of that declaration. The decision reported in (1984) 1 M.L.J. 345, applies to the facts of this case and, therefore, the court will have any jurisdiction in respect of that portion of the claim put forward in the plaint. Question No. 2 has to be therefore answered in favour of the appellant.
22. In the result, the second appeal is allowed in part. There will be a decree of declaration of the ' plaintiff's right to be in possession of 60 cents in S. No. 46 and 1 acre 70 cents in S. No. 48, excluding the trees. In respect of the trees, since civil court has no jurisdiction under Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (X of 1969), all the findings in respect of the same are vacated, and no relief is granted in respect of the trees. A decree is granted only in respect of the bare lands in those survey numbers. Parties will suffer their own costs in the second appeal.