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[Cites 36, Cited by 3]

Madras High Court

T.K.Ayub vs Mohammed Hanif on 23 March, 2010

Author: R.Mala

Bench: R.Mala

       

  

  

 
 
  IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2010
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
C.R.P.(NPD).No.2328 of 2004
& C.M.P.No.17529 of 2004

T.K.Ayub			  	       .. Petitioner
Vs.
1. Mohammed Hanif
2. Mohammed Halid
3. Jameelabi				      .. Respondents

	Civil Revision Petition against the order dated 16.3.2004 in E.A.No.157 of 1999 in E.P.No.237 of 1998 in O.S.No.50 of 1977 on the file of the Principal District Munsif Court, Pondicherry.
	For petitioner : Mr.T.P.Manoharan
 	For respondents: Mr.T.R.Rajagopalan,
		         Senior Counsel for Mr.T.R.Rajaraman

ORDER

The Civil Revision Petition arises out of the order of dismissal, dated 16.3.2004 in E.A.No.157 of 1999 in E.P.No.237 of 1998 in O.S.No.50 of 1977 on the file of the Principal District Munsif Court, Pondicherry.

2. The petitioner has filed E.A.No.157 of 1999 under Section 47 read with 151 of the Civil Procedure Code, to dismiss the Execution Petition in E.P.No.237 of 1998, as the decree dated 21.6.1977 in O.S.No.50 of 1977 is unexecutable, unenforceable and nullity in law, stating that the trial Court has no jurisdiction to entertain the suit and so, the decree itself is non-est in the eye of law. Further, the petitioner pleaded that even after the decree has been passed, the respondents herein as decree-holders, earlier filed E.P.No.279 of 1980, which was allowed, against which the petitioner herein filed C.M.A.No.5 of 1981 before the Principal District Court, Pondicherry, in which, there was an endorsement made by the decree-holders not pressing the relief for certain portion of the decree. Even then, the petitioner continued to be cultivating the crops other than paddy in a portion of the land, whenever sufficient water was not available. After a lapse of nine years, the respondents herein filed another execution petition in E.P.No.17 of 1990, which was allowed on 5.7.1990 and against that, the revision petitioner herein preferred C.R.P.No.2160 of 1990 before this Court and on 19.4.1996, this Court allowed the said C.R.P. and set aside the order of arrest passed in E.P.No.17 of 1990. Furthermore, the petitioner has averred that with the knowledge of the decree-holders (the respondents herein), the revision petitioner raised crops other than paddy, as agreed in the lease deed and hence, the decree-holders are estopped by law of acquiescence. The revision petitioner herein prayed for allowing E.A.No.157 of 1999 and for dismissing E.P.No.237 of 1998 in O.S.No.50 of 1977, stating that the decree itself is nullity.

3. The respondents herein, the decree-holders, resisted the E.A by stating that the respondents herein have filed the suit for bare injunction restraining the revision petitioner/defendant from raising the crops other than paddy and after contest, the decree has been passed and no appeal was filed and it is final and binding on both parties. In pursuance of the same, the E.A. is not maintainable. Furthermore, the respondents/decree-holders stated that they filed another E.P.No.279 of 1980 for attachment of the crops raised in violation of the decree of injunction and also to restore the land in its original status, and the said E.P.No.279 of 1980 was allowed. In the course of the subsequent E.P. filed by the respondents herein in E.P.No.17 of 1990, since the executing court found violation, E.P.No.17 of 1990 was allowed, against which, C.R.P.No.2160 of 1990 was filed by the revision petitioner herein, before this Court and this Court held that the order of arrest of the judgment-debtor (revision petitioner herein) after nine years, is harsh and not in accordance with law and the order of arrest in the E.P. was set aside. There is no question of applicability of law of acquiescence or requirement of any notice as is claimed in the E.A. The respondents prayed for dismissal of the E.A.

4. The learned Judge of the Executing Court, after considering the evidence of P.Ws.1 and 2 and R.W.1 and Ex.P-1, dismissed the E.A., stating that the E.A. is not barred by the principle of acquiescence. Against the said order, the present C.R.P. has been filed by the petitioner-cultivating tenant.

5. During the course of the arguments in the C.R.P., learned counsel for the petitioner-cultivating tenant, would contend that the decree itself is non-est in the eye of law and admittedly, the revision petitioner himself is a cultivating tenant, and since the Civil Court has no jurisdiction to entertain the suit, any decree passed is non-est in the eye of law, and the decree itself is nullity and void-ab-initio. He relied on Section 8 of the Pondicherry Cultivating Tenants Protection Act, 1970 (Act No. 9 of 1971), which deals with bar of jurisdiction of Civil Courts. The said Act came into force on 10.4.1971 and after that only, the suit in O.S.No.50 of 1977 was filed and the suit was decreed on 21.6.1977. Learned counsel for the revision petitioner-cultivating tenant further contended that as per Section 3 of the said Act, which deals with the landlords not to evict cultivating tenants, only two grounds are envisaged for evicting the tenant. Learned counsel for the petitioner-cultivating tenant further submitted that to decide the manner of enjoyment of the property, the Civil Court has no jurisdiction. The condition not to raise crops other than paddy, is an unconscionable condition and it is opposed to public policy. To substantiate the same, learned counsel for the petitioner relied on the decision of the Supreme Court reported in 1998 (5) SCC 87 (Secretary-cum-Chief Engineer Vs. Hari Om Sharma). He also relied upon the decision of the Supreme Court reported in 1993 (2) SCC 507 (Chiranjilal Shrilal Goenka Vs. Jasjit Singh) and submitted that even in execution proceedings, the decree can be challenged. Learned counsel further submitted that the petitioner was in possession of the property in pursuance of the unregistered lease deed and subsequently, after expiry of the period, his possession could only be termed as 'tenant in holding over' and so, the condition imposed in the lease deed will not bind the petitioner-cultivating tenant. He also relied upon other decisions of this Court in support of his contentions.

6. Learned Senior Counsel for the respondents/decree-holders would contend that since the suit itself is for bare injunction, the Civil Court has jurisdiction. Learned Senior Counsel further submitted that as per the lease deed, the petitioner-cultivating tenant agreed to raise only paddy and since he was violating the terms and conditions of lease, the suit has been filed and decree of injunction has been obtained and the judgment and decree in the suit have become final, as no appeal was preferred. Learned Senior Counsel for the respondents/decree-holders further relied upon one of the decisions of this Court relating to the parties who agreed to raise double-crop, but the petitioner-cultivating tenant raised only single crop, which will cause injury to the land, and hence, the respondents/decree-holders (plaintiffs-land owners) are entitled to file application for eviction. He relied upon various decisions in support of his contentions and prayed for dismissal of the E.A./C.R.P.

7. Now this Court has to decide as to whether the argument of the learned counsel for the petitioner-cultivating tenant that the Civil Court has no jurisdiction to entertain the suit, is fair and whether the decree itself is non-est in the eye of law.

8. The admitted facts are as follows:

The property in question belongs to the respondents/decree-holders. The revision petitioner is the cultivating tenant. As per the lease deed, the revision petitioner/cultivating tenant is restricted from cultivating any other crop except paddy. Since the petitioner-cultivating tenant, attempted to raise crops other than paddy, the respondents came forward with the suit in O.S.No.50 of 1977. After contest, the suit was decreed. Even then, the petitioner-cultivating tenant raised crops other than paddy and the respondents herein, as decree-holders, filed E.P.No.279 of 1980, in which, they sought for attachment of the crops for violating the decree of injunction granted in O.S.No.50 of 1977 and also sought for restoring the land to its original status by removing the crops other than paddy and the said E.P. was allowed. Against the same, the petitioner herein preferred appeal in C.M.A.No.5 of 1981, before the Principal District Court, Pondicherry and during the pendency of the said C.M.A, the respondents/decree-holders made an endorsement to the following effect:
"The respondent submit that the part of the prayer in E.P.No.279/80 in O.S.No.50/77 for to take steps to restore the lands to the previous status by removal of sugarcane crops and direct recovery of expenses incurred for the respondent is not for the time being pressed without prejudice to the relief and conditions and other remedies available to the respondent/decree holders."

The revision petitioner-cultivating tenant also made an endorsement as follows:

"In view of the endorsement made by the respondents that they will not press the second relief in E.P.No.279/80 regarding restoration of the suit property by removing all crops other than paddy is given up and as such this appeal in respect of the I relief of arrest and detention in Civil Prison is not pressed."

In view of the said endorsements, the C.M.A. was allowed in part setting aside the order to restore the land to its original status by removing the crops other than paddy and the C.M.A. was dismissed in respect of the relief of attachment of the property. But subsequently, the respondents herein filed another E.P. in E.P.No.17 of 1990, in which arrest has been ordered for committing contempt, and as against the same, the petitioner herein preferred C.R.P.No.2160 of 1990 before this Court and the said C.R.P. was allowed and the order of arrest passed in the E.P. was set aside. Subsequently, the present E.P. in E.P.No.237 of 1998 has been filed by the respondents herein. During the pendency of the present E.P., the petitioner herein filed E.A.No.157 of 1999 in E.P.No.237 of 1998, under Section 47 read with Section 151 of the C.P.C., questioning the validity of the decree, stating that the Civil Court has no jurisdiction to pass the decree and only the Revenue Court is having jurisdiction to entertain such a petition.

9. In the abovesaid circumstances, this Court has to consider whether the petitioner-cultivating tenant, is competent to challenge the decree in the E.P. proceedings.

10. Before proceeding to consider the citations relied on by both parties, it is appropriate to consider the relevant provisions of the Pondicherry Cultivating Tenants Protection Act, 1970 (Act No.9 of 1971). Learned counsel for the petitioner-cultivating tenant would contend that the preamble of the said Act reads that, "An Act for the protection from the eviction of the cultivating tenants and matters incidental thereto in certain areas in the Union Territory of Pondicherry". So, learned counsel submits that to protect the interest of the cultivating tenants, the said Act has been enacted and it is a special provision. There is no quarrel over this argument of the learned counsel for the petitioner. In the preamble of the said Act, as noted above, it is stated that, "... protection from eviction ...", i.e. protection from eviction of the cultivating tenants. In such circumstances, the argument advanced by learned counsel for the petitioner-cultivating tenant that the suit for bare injunction restraining the petitioner herein/cultivating tenant/defendant from raising the crops other than paddy, before a Civil Court, is not maintainable, is an unacceptable one.

11. It is appropriate to consider Section 8 of the Pondicherry Cultivating Tenants Protection Act, which reads as follows:

"Section 8: Bar of jurisdiction of Civil Courts: No Civil Court shall, except to the extent specified in sub-section (3) of section 3, have jurisdiction in respect of any matter which the Revenue Court is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

In such circumstances, Section 3(3) of the said Act is necessary for the discussion in this case, which reads as follows:

"Section 3: Landlords not to evict the cultivating tenants:
(1) ...
(2) ...
(3) (a) A cultivating tenant may deposit in Court the rent or, if the rent be payable in kind, its market value on the date of deposit, to the account of the landlord--
(i) in the case of rent accrued due subsequent to the 31st March, 1970 within such time as may be prescribed;
(ii) in the case of rent accrued due after the commencement of this Act, within a month after the date on which the rent accrued due.
(b) (i) The court shall cause notice of the deposit to be issued to the landlord and determine, after a summary inquiry, whether the amount deposited represent the correct amount of rent due from the cultivating tenant and if the Court finds that any further sum is due, it shall allow the cultivating tenants such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant, for depositing such further sum inclusive of such costs as the court may allow.
(ii) If the Court adjudges that no further sum is due, or if the cultivating tenant deposits within the time allowed such further sum as is ordered by the Court, the cultivating tenant shall be deemed to have been paid the rent within the period specified in the last foregoing sub-section.
(iii) If, having been ordered to deposit a further sum, the cultivating tenant fails to do so within the time so allowed by the Court, the landlord may evict the cultivating tenant as provided in sub-section(4).

Explanation.--The expression "Court" in this sub-section means the Court which passed the decree or order for eviction or where there is no such decree or order, the Revenue Court."

12. As per Section 3(3) of the said Act, only the Revenue Court is having jurisdiction to order eviction of the tenant from the property, if there is no such decree or order for eviction by Court. There is no quarrel over the said proposition. But in this case, it is a suit for bare injunction. As per Section 8 of the said Act, there is bar for the Civil Court to entertain suits in respect of the prayer of injunction.

13. At this juncture, it is appropriate to consider the decisions relied on by the learned counsel for both sides.

14. Learned counsel for the petitioner-cultivating would rely upon the decision of the Supreme Court reported in 1993 (2) SCC 507 (Chiranjilal Shrilal Goenka Vs. Jasjit Singh), in which the Apex Court held as follows:

"18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass (1969 (2) SCR 432) an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal (1969 (1) SCC 59 : AIR 1970 SC 838). In Ferozi Lal Jain v. Man Mal (1970 (3) SCC 181 : AIR 1970 SC 794) a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. (1990 (1) SCC 193 : JT 1989 (Suppl) SC 329) the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune (AIR 1990 Bom 45: 1989 (3) Bom.C.R. 535) a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case (Ghellabhai Atmaram Vs. Nandubai (ILR 21 Bom 336), Sir C.Farran, Kt., C.J. of Bombay High Court held that the probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction."

15. Relying on the said decision, learned counsel for the petitioner-cultivating tenant submitted that the decree passed without jurisdiction, is nullity and is non-est in the eye of law and the question of validity of the decree can be raised even at the stage of execution proceedings. Relying on the said decision, he further submitted that when the statute does not confer jurisdiction on a Tribunal, no Court can confer jurisdiction on it even on the basis of the consent of the parties.

16. It is true that if the decree has been passed by a Court, which is not having jurisdiction, it is non-est in the eye of law and it can be challenged even in the execution proceedings. In such circumstances, this Court has to decide in this case as to whether the Civil Court is having jurisdiction to entertain the suit and grant decree and whether such decree is nullity in law.

17. Learned counsel for the petitioner-cultivating tenant, also relied upon the following decisions:

(a) 1982 (2) MLJ 381 (Madras High Court): (Ponnuswamy Vs. District Revenue Officer. North Arcot):
"9. In the civil suit also which has given rise to the second appeal, the finding is that the 4th respondent continued to be in possession of the property and that the plea of surrender by him to the appellants, namely the writ petitioners, is not true. However, the suit itself is not maintainable in view of the ratio in the Full Bench decision. (Periathambi Gounder v. The District Revenue Officer-(1980) 2 MLJ 89 : ILR (1980) 2 Mad. 255 : 93 LW 169 : AIR 1980 Mad 180). In the present suit, the plaintiff (Masilamani) has prayed for a declaration that he is a cultivating tenant and for injunction restraining the defendants/appellants (Ponnusami and Gnanamoorthy) who are petitioners in the writ petition, from disturbing his possession. Such a suit is not maintainable. Ismail,J., as he then was, has enumerated instances where a civil suit will not be maintainable vide Periathambi Gounder Vs. District Revenue Officer ((1980) 2 MLJ 89 : ILR (1980) 2 Mad. 255 : 93 LW 169 : AIR 1980 Mad 180):
"Similarly, if the cultivating tenant files a suit for declaration that he is the cultivating tenant of the land in question and as a consequential relief prays for recovery of possession from the land-owner-defendant or for an injunction, the primary relief being one of declaration of his status as a cultivating tenant, the other reliefs being consequential, the civil Court may not have jurisdiction to decide the controversy with reference to which the primary relief is prayed for."

....."

(b) AIR 1984 Madras 235 (Pankajam and others VS. Chinnaswamy Naidu):

"The plaintiff in the instant case prayed for a declaration of his right to enjoy the suit properties as a cultivating tenant and for a permanent injunction restraining the defendants and others from interfering with his peaceful possession and enjoyment of the properties. It was not disputed; that Sec.16-A would prohibit the Civil Court from granting the declaration prayed for.
Held that 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, the consequential relief also cannot be granted."

18. Learned Senior Counsel for the respondents/decree-holders relied on the following decisions:

(a) AIR 1981 Madras 354 (V.S.Alwar Vs. Gurusamy Thevar):
"It is no doubt fundamental that the executing Court cannot go behind the decree. But it is also fundamental that it is open to a judgment debtor to resist execution on the ground that the judgment against him is a nullity. The executing Court can very well decline to execute a decree if it is satisfied that it is a nullity. When it does so, it is not to be regarded as going behind the decree, for the simple reason that there is no decree at all to go behind."
"The ouster of Civil Court's jurisdiction under Section 16-A is not dependent upon the actual pre-existence of an order of the Record Officer or even the actual pendency of certain proceedings before the Record Officer. On the contrary, the section declares a bar in general terms in matters of the kind and nature described in the Section. The bar, therefore, operates irrespective of whether a Record Officer has entered upon his task or not. The section, in general terms, bars the Civil Courts from exercising jurisdiction in the kind of matters which the Record Officer or other statutory authorities are empowered to decide under the Act. In these events, the fact that the judgment debtor happened to obtain a declaration from the Record Officer only subsequent to the decree of the Civil Court is not, therefore, to the point. Indeed, he may not have applied to the Record Officer at all for a declaration. Yet, even in such a case, it is open to him to invoke the statutory bar in order to urge that the decree passed against him earlier is a nullity because it is a decree passed in contravention of Section 16-A."
"17. I, however, do not fancy this construction of the statutory provisions which tends to exclude the civil court's jurisdiction even from matters which might only fall incidentally within the scope of the power of the Record Officer. I reject the construction on the principle that whatever function the doctrine of implied powers can have on the ambit of the exercise of the power as such, it cannot defeat the other basic tenet of our legal system which is that statutes ousting the jurisdiction of courts must be strictly construed. It is in this respect that the decision of the Full Bench is important and attains its fullest stature. The judgment accepts the existence in the Record Officer of implied or ancillary powers, but, at the same time, it does not allow their existence to rob the courts of their jurisdiction beyond what the strict construction of the bar under Section 16-A warrants. With respect, the Full Bench must be held to have struck a golden mean amidst a clash of principles, by sagaciously holding that both the Record Officer and the civil court would have concurrent jurisdiction in respect of such ancillary issues as may arise, in the making up the record of tenancy rights on the one hand and in the adjudication of civil suits, on the other. Thereby the learned Judges of the Full Bench have furthered the statutory purpose of bringing into being an authentic record of tenancy rights in this State and at the same time, they have also circumscribed the ouster of the civil court's jurisdiction to the barest minimum consistent with the language of the exclusory provision in Section 16-A. With respect, therefore, I apply the Full Bench ruling to the present case and hold that the decree for permanent injunction passed against the judgment debtor is not a nullity, but a valid decree rendered in the legitimate exercise of the Court's jurisdiction." (emphasis supplied)
(b) 93 LW 169 (FB) (Madras High Court)=1980 (II) M.L.J. 89 (FB) (Madras High Court): (Periathambi Gounder Vs. The District Revenue Officer, Coimbatore):
"Under these circumstances, S.16-A of the Act did not in any way affect the jurisdiction of the Civil Court in respect of suits or proceedings validly instituted before the coming into force of the said section and pending on the date when the said section came into force, whether in the original Court or in the appellate or revisional Court."
"24. This S.16-A came up for consideration before a Bench of this Court in Muniyandi v. Rajangam Iyer (1976 (1) MLJ 344 : (1976) I.L.R. 1 Mad. 201 : 89 LW 249 : AIR 1976 Mad. 287) already referred to. That matter came before a Bench on a reference made by N.S.Ramaswami,J. In that case, the Court had to decide in O.S.No.547 of 1971 on the file of the Court of the District Munsif, Thiruvaiyaru, whether a particular person was a cultivating tenant or not. That suit was dismissed on the ground that S.16-A barred the Civil Court's jurisdiction to decide the matter. But the dismissal of the suit was taken up in appeal in A.S.86 of 1974 and the learned Subordinate Judge of Thanjavur on 11th February, 1975 allowed the appeal and remanded the matter with a direction that the matter should be disposed of afresh. Against the said order of remand, an appeal, AAO.213 of 1975, was preferred to this Court. The appellant claimed that he was a cultivating tenant entitled to the protection of the Tamil Nadu Act 25 of 1955, that in view of the provisions contained in the Act, the Civil Court had no jurisdiction to go into the question whether a particular party was a cultivating tenant or not, that question could be decided only by the hierarchy of officers under the Act, that the Record Officer under the Act had already entered the appellant as a cultivating tenant and that therefore the Civil Court had to accept the position that the appellant was a cultivating tenant. On behalf of the respondent-landlord, the contention was that under the provisions of the Act, the Record Officer was only to prepare a register giving the name or names of the cultivating tenants, that there was no specific provision in the said Act authorising anyone to decide the question whether a particular party was or was not a cultivating tenant and that, therefore, the Civil Court's jurisdiction to entertain such a question was not ousted. After referring to the provisions of the Act before its amendment by the Tamil Nadu Act 34 of 1972, the Bench observed--
"As the Act stood originally before Act 34 of 1972 there was no specific bar of the Civil Court's jurisdiction, to decide any matter which the Record Officer or the District Collector or other officer has to decide. We need not stop to consider whether having regard to the scheme, of the Act indicating matters to be decided, the officers who have the authority to decide any further remedies by way of appeal and revision, the Civil Court's jurisdiction, by necessary implication, would stand excluded in respect of matters which those officers have to decide".

After the above observation, the Bench extracted S.16-A of the Act, as introduced by the Tamil Nadu Act 34 of 1972 and proceeded to state--

"The section admits of no doubt that a Civil Court has no jurisdiction to decide any matter which the Record Officer, District Collector or other officer or authority empowered by or under the Act should determine. The Court is also forbidden from granting injunction in respect of any action taken or to be taken by such authority or officer, in pursuance of any power conferred by or under the Act. We are told that what led N.S.Ramaswami,J, to make the reference to a Division Bench was a consideration of the latter part of S.15. Apparently he thought if an entry in the approved record of tenancy rights should be presumed to be true and correct until the contrary was proved or a new entry was lawfully substituted therefor, to that extent the Civil Court's jurisdiction should not be taken to have been excluded. In other words, evidently his impression was that a certain area of Civil Court's jurisdiction was still available and the ambit of S.16-A should be read accordingly. We are of opinion that S.15 is not jurisdiction section. It only provides for a rule of evidence, namely, presumption of correctness of entries in the approved record of tenancy rights. This presumption cannot, of course, be rebutted until the contrary is proved or a new entry is lawfully substituted therefor. The words 'until the contrary is proved' and the words 'or a new entry is lawfully substituted therefor' are to be read with reference to the provisions of the Act. This is not indicative of an area of jurisdiction still left with the Court to decide any matter which is entirely within the jurisdiction of the officers, who are empowered by or under the Act to decide. As a matter of fact, S.5 as we have already indicated, provides for notification of entries in the approved record of tenancy rights and if a decision of the Record Officer is taken up in appeal and a direction is given for modification, S.8 provides for amendment to be made in the record of tenancy rights according to the appellate decision. Something applies also to a revision order. The Act, therefore, indicates and provides for the remedy to correct the record by following the procedure laid down. Until the contrary is proved or a new entry is lawfully substituted therefor, the entry, shall be presumed to be correct. It is perfectly clear and has nothing to do with the question of jurisdiction.
The language of S.16A, as indicated by us, admits of no doubt that the Civil Court's jurisdiction is expressly excluded in respect of any matter which the Record Officer, District Collector or the officer, empowered by or under the Act has to determine."
"35. The next aspect to be considered, is the ascertainment of the ambit, amplitude and the extent of the interdict imposed by S.16-A of the Act on the exercise of the jurisdiction by a Civil Court. We have already extracted S.16-A. Two things are clear from the language of the section. One is, the interdict is on the jurisdiction of the matters which by or under the Act have to be determined by the Record Officer, the District Collector or other officer or authority empowered by the Act. The section itself does not enumerate as to what those matters are. The second is, the interdict is not on any particular proceedings in the Civil Court, but only on the exercise of the jurisdiction in respect of these matters. Controversies that come before a court or a tribunal cannot be either pigeon-holed or put in strait-jackets. They may be of different varieties as well as different standards. For the purpose of deciding the main controversy, the court or the Tribunal may have incidentally to decide a number of subsidiary questions or controversies. Therefore, when the section itself does not enumerate the matters in respect of which the jurisdiction of the Civil Court is ousted, one will have to ascertain the said matters with reference to the other provisions of the Act conferring power or jurisdiction on the authorities functioning under the Act. Similarly, a suit or proceeding in a civil court may involve the determination of several matters, some of which may be within the jurisdiction of the authorities functioning under the Act and some others outside the jurisdiction. In such a case the suit or proceeding as such cannot fail unless it is of such a nature that it can be terminated solely on the determination of the matter falling within the jurisdiction of the authorities functioning under Act. Since the section itself does not bar the institution of the suit or a proceeding, it is unnecessary to labour on the second aspect any further."
"38. .... .... However, one other point that was urged before this Court was that S.16-A of the Act excluded the jurisdiction of the civil court and the question as to whether the first respondent was a cultivating tenant in respect of the said lands could not be gone into in that suit, as it was a matter to be decided exclusively by the authorities constituted under the Act and in support of that contention reliance was placed on the Bench decision of this Court in Muniyandi v. Rajangam Iyer (1976-1-MLJ 344 = 89 LW 249) referred to already. After referring to the said decision, this Court in the judgment in the second appeal referred to above observed--
" .. ...
On the pleadings in the case, there are three possibilities. Firstly, the plaintiff in the suit might have been in possession of the suit lands on the date of suit and he may be a cultivating tenant entitled to the benefits of the Tamil Nadu Act 25 of 1955. If this is the real position, an injunction must issue in favour of the plaintiff. Secondly, the plaintiff might have been in possession of the suit lands on the date of suit but he might not be a cultivating tenant entitled to the benefits of the Act. Even in such a case the plaintiff is, entitled to an injunction by virtue of his having been in possession of the suit property on the date of suit, as he is entitled to continue in possession until duly evicted by the true owner. The third possibility is the plaintiff might not have been in possession of the suit lands on the date of suit. In such a case whether he is a cultivating tenant entitled to the benefits of the Act or not, the suit must fail. Therefore, if the plaintiff is in a position to get an order of injunction even without establishing his status as a cultivating tenant, the suit cannot be thrown out merely because it raises an incidental question as to whether the plaintiff is a cultivating tenant or not. I am, therefore, of the view that the Civil Court's jurisdiction to entertain this suit for injunction cannot be said to have been taken away under S.16-A of the Tamil Nadu Act X of 1969".

(emphasis supplied)

19. Before considering the above citations, it is appropriate to mention that Section 16-A of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1960 (Tamil Nadu Act X of 1960), as amended by the Tamil Nadu Agricultural Land (Record of Tenancy Rights)(Amendment) Act, 1972 (Tamil Nadu Act 34 of 1972) = Section 8 of the Pondicherry Cultivating Tenants Protection Act (No.9 of 1971). The above decisions relied on both sides, pertain to Section 16-A of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act. For declaring the tenant as a cultivating tenant and also for evicting a cultivating tenant, the Revenue authorities are only competent persons. In pursuance of the above tenancy laws, the Revenue Court alone is having jurisdiction in respect of declaring and recording the tenant as a cultivating tenant and evict the cultivating tenant. The Civil Court is estopped in the above aspects. But, if the suit is filed for bare injunction, the Civil Court has jurisdiction to entertain the same.

20. The decision of the Full Bench of this Court, reported in 93 LW 169 (cited supra), has been relied upon in the other decisions. In the said Full Bench decision, the facts are that while the suit was pending for eviction, the Act came into existence. But as per the decision reported in AIR 1981 Madras 354 (cited supra), it was held that, "it is no doubt fundamental that the executing Court cannot go behind the decree", and it was further held, "... the existence in the Record Officer of implied or ancillary powers, but at the same time, it does not allow their existence to rob the Courts of the jurisdiction beyond what the strict construction of the bar under Section 16-A warrants" and in that decision, this Court came to the conclusion that passing of decree of permanent injunction against the defendant is not barred.

21. As per the decision reported in 1982 (2) MLJ 381 (cited supra), the Civil Court has no jurisdiction to entertain the suit for declaration that the plaintiff is a cultivating tenant and for injunction restraining the defendant from disturbing his possession. In the decision reported in AIR 1984 Madras 235 (cited supra), it was also a case for declaration of the tenant as a cultivating tenant and in such circumstances, it was held by this Court in that decision that as per the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, the jurisdiction of the Civil Court is ousted for declaration of the tenant as a cultivating tenant and to record his name as a cultivating tenant. Both the said decisions, i.e. 1982 (2) MLJ 381 and AIR 1984 Madras 235, relied on by learned counsel for the petitioner, are not applicable to the facts of the present case. In the present case, the suit was filed for bare injunction restraining the petitioner-defendant-cultivating tenant from raising any other crop except paddy. Hence, the Civil Court alone has jurisdiction to entertain the suit, since the suit was for bare injunction.

22. Learned counsel for the petitioner-cultivating tenant, further submitted that though in the lease deed, there was a condition directing the tenant not to cultivate any other crop except paddy, but, because of monsoon failure, the petitioner-cultivating tenant was not in a position to raise paddy and so, he was unable to pay the lease amount to the respondents-landlords-decree-holders, and since the petitioner has not paid the lease amount, the petitioner-cultivating tenant was facing the eviction proceedings. To pay the lease amount, the petitioner-cultivating tenant ought to have cultivated paddy in the land, and because of water scarcity, the petitioner raised the crops other than paddy. It is the contention of the learned counsel for the petitioner-cultivating tenant, that the restriction imposed by the respondents-landlords from raising any other crop except paddy, is an unconscionable condition and it is opposed to public policy. To substantiate the same, learned counsel for the petitioner-cultivating tenant relied upon the decision reported in 1998 (5) SCC 87 (Secretary-cum-Chief Engineer Vs. Hari Om Sharma), in which, an unconscionable condition was relied upon by the parties and the Supreme Court observed as follows:

"8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma-holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872."

23. In the present case, the suit has been filed by the respondents/landlords/plaintiffs and the petitioner/cultivating tenant/defendant, filed the written statement and contested the suit and the decree was passed by the Court below. But the petitioner-cultivating tenant has not raised any such plea of unconscionable condition, before the trial Court, and even after passing of the judgment and decree, the petitioner-defendant has not challenged the same by way of appeal. After obtaining the judgment and decree, admittedly, the respondents/decree-holders, filed two Execution Petitions, both in 1980 and 1990 in E.P.Nos.279 of 1980 and 17 of 1990 and even in the said Execution Petitions, the petitioner-defendant-cultivating tenant, has not raised such a plea of unconscionable condition. Only at the time of filing of the present third Execution Petition in E.P.No.237 of 1998, the petitioner-cultivating tenant has raised such a plea. In the above circumstances, the decision of the Supreme Court reported in 1998 (5) SCC 87 (cited supra), in which, the Government has obtained an undertaking from the employee before he was promoted to higher post, and so, it is opposed to public policy, is not applicable to the facts of the case.

24. At this juncture, the learned Senior Counsel for the respondents/decree-holders contended that if the petitioner-cultivating tenant admittedly accepted the condition imposed by the respondents/landlords/decree-holders, for raising the single crop, and as he failed to raise the single crop, it caused prejudice to the landlords and so, the petitioner-cultivating tenant is entitled to be evicted. Because the petitioner-defendant-cultivating tenant, raised a crop other than paddy, which caused injury to the property, the respondents-landlords were forced to file the suit for permanent injunction and obtained a decree and sought for execution of the same, and hence, learned Senior Counsel for the respondents/landlords/decree-holders, submits that the condition imposed in the lease deed is not opposed to public policy. Learned counsel for the respondents/decree-holders relied on the following decisions:

(a) AIR 1981 Madras 170 (Rethinam Vs. Kuppuswami):
"Where the tenant deliberately did not raise two crops in all the double crop lands and such non-cultivation of two crops was injurious to the land, the eviction of the tenant on such ground could be made."

(b) 1983 (1) MLJ 246 (Madras High Court): (Krishnamurthy Iyer Vs. Ramaiah Konar):

"Held, that the raising of cocoanut trees in double crop nanja lands involves the digging of pits and when the cocoanut trees grow up they are deeply embedded in the soil and the soil is thus rendered less fertile and unfit for paddy cultivation. In other words it will be in the nature of an act which is injurious to the land. While the raising of cocoanut trees by itself is an act which is injurious to the lands the further digging up of a pond for purpose of irrigating the cocoanut saplings would also be an act which is really destructive of an injurious to the land. The admitted digging up of the pond by the respondent and using the earth therefrom for the purpose of providing a kalam would undoubtedly attract Section 3(2)(b) as well as Section 3(2)(c) of the Act."

(c) 1995 (1) MLJ 237: (Madras High Court) (Subramaniam Vs. Ammani Ammal):

"Admittedly, in the present case, the tenant has dug up a pit in the land in question and used the earth for manufacturing bricks. The Commissioner who inspected the land in question made enquiries with regard to the bricks present there and filed his report. In the report, it is stated that the tenant has manufactured 35,000 bricks out of the earth dug out from the land in question and 32,000 bricks were sold by him and remaining bricks were available there. The report filed by the Commissioner was not considered by the Revenue Court. Further, it is not the case that the respondent/tenant did not dig any pit but his case is that even after 1982, the landlord received the rent from him which would show that the landlord had condoned the act of injury caused by the tenant to the land in question. This is the reason given by the Revenue Court without any basis. In the decision reported in 1976 SC 49, it was stated that even though the injury was caused to the land earlier, that would not absolve the tenant from evicting from the land in question under Sec.3(2)(a) and (b) of the Tamil Nadu Cultivating Tenants Protection Act. Thus, the landlord proved that the injury to the land was caused by the tenant in 1982, as contemplated under Sec.3(2)(b) and (c) of Act XXV of 1955. Therefore, the tenant is liable to be evicted under Sec.3(2)(b) and (c) of the Act XXV of 1955."

25. The decision relied on by the learned Senior Counsel for the respondents/decree-holders, reported in 1995 (1) MLJ 237 (cited supra) is not applicable to the facts of the present case. In that decision, the cultivable land has been used for manufacturing the bricks out of the earth dug out from the land in question, and so, it is naturally causing injuries to the land. But in the present case, admittedly, the petitioner herein has raised sugar-cane crops, other than the cash crop paddy. In such circumstances, that citation is not applicable to the case.

26. Moreover, the decision reported in 1983 (1) MLJ 246 (cited supra) is also not applicable, because, the tenant in the said case, planted cocoanut saplings in the property, i.e. double-crop nanja lands, and the cocoanut saplings are deeply implanted in the soil and the soil was thus rendered less fertile and unfit for paddy cultivation. But in the present case, there is no such allegation. Admittedly, the petitioner has raised sugar-cane crops, which consumed only less water than paddy.

27. In view of the decision reported in AIR 1981 Madras 170 (cited supra), when once the petitioner-cultivating tenant has accepted the lease condition and agreed that he will not raise any other crop except paddy, but he has raised other crops and hence, it is causing injuries to the land, and so, the respondents/landlords/decree-holders are entitled to file the suit for injunction before the Civil Court and the Civil Court also has passed a decree and in such circumstances, the respondents/decree-holders have every right to execute the decree, if there is any violation or disobedience of the decree passed by the trial Court. Since the revision petitioner-cultivating tenant, has raised sugar-cane crops, other than paddy, the respondents/decree-holders have come forward with the execution petition. In those circumstances, the trial Court is having jurisdiction to pass decree and as per the decisions discussed in the earlier paragraphs of this order, the decree is valid and binding on the parties. Moreover, the revision petitioner-cultivating tenant-defendant has not questioned the validity of the decree by way of appeal and since he committed disobedience, the respondents/decree-holders have filed the E.P. Under those circumstances, I do not find any merit in the Civil Revision Petition challenging the impugned order passed in the E.A. filed by the petitioner herein.

28. Furthermore, learned counsel for the petitioner-cultivating tenant, would contend that the condition imposed in the lease deed will not bind the tenant after expiry of the period of lease mentioned in the lease deed, and since the lease deed is for the term of one year, which already expired before the filing of the suit itself, the petitioner-cultivating tenant, could only be termed as "tenant in holding over".

29. The "tenant in holding over" is a creature of bilateral and consensual act and it does not come into existence by a mere unilateral intendment or declaration of one of the parties. Section 116 of the Transfer of Property Act is based upon the consideration of justice, equity and good conscience, and in the absence of anything to the contrary, its provisions are applicable even to cases not governed by the Transfer of Property Act. Thus, where a lessee of the agricultural land holds over after the expiry of the lease, he holds, subject to all the covenants in the expired lease that are applicable to the new situation. So, the petitioner herein is in possession and abiding the conditions imposed in the lease. Therefore, he ought not to have raised any other crop except paddy. So, the argument advanced by learned counsel for the petitioner-cultivating tenant, that the lease itself was for one year, and after the expiry of the lease period, the petitioner-cultivating tenant, is only a "tenant in holding over", and so, the terms and conditions imposed in the lease deed do not bind the petitioner-cultivating tenant, does not merit acceptance.

30. Learned counsel for the petitioner-cultivating tenant, would further contend that after the expiry of the terms and conditions mentioned in the lease deed, the petitioner is only a statutory tenant, and so, he is not governed by the terms and conditions of the lease deed.

31. At this juncture, it is appropriate to refer the meaning of 'statutory tenant' as per "The Law Lexicon", by P.Ramanatha Aiyar, 2nd Edition, 1997 (Extensively Revised and enlarged) Reprint 2001, which defines the 'statutory tenant' as a tenant continuing in possession of a rented land or building after his termination of the tenancy.

32. In the present case, the revision petitioner was declared as a cultivating tenant and in the abovesaid circumstances, the argument advanced by the learned counsel for the petitioner that the petitioner-cultivating tenant, is a statutory tenant, does not merit acceptance.

33. As already discussed in the earlier paragraphs of this order, the Civil Court has jurisdiction to entertain the suit for bare injunction. Moreover, as per Section 8 of the Pondicherry Cultivating Tenants Protection Act, the Civil Court's jurisdiction to entertain Civil Suit for injunction, is not barred. In such circumstances, there is no decree passed superseding the provisions of the said Act, and so, the argument advanced by learned counsel for the petitioner-cultivating tenant that the decree passed restraining the petitioner from cultivating any other crop except paddy, is nullity, unenforceable and unexecutable, does not merit acceptance.

34. The learned counsel for the petitioner-cultivating tenant, further contended that the Executing Court has committed error in rejecting the plea of acquiescence. After the decree was passed, since the petitioner-cultivating tenant, committed disobedience of the decree passed by the trial Court, earlier two Execution Petitions have already been filed. In such circumstances, the plea of acquiescence raised by the petitioner, does not merit acceptance, and it will not in any way affect the execution of the decree.

35. In view of the foregoing discussion, the decree passed by the trial Court restraining the revision petitioner/cultivating tenant/defendant from raising any other crop except paddy, which is having jurisdiction to entertain the suit, is valid in law. The Executing Court has come to the correct conclusion that the E.A. filed by the petitioner-cultivating tenant under Section 47 read with 151 C.P.C., is devoid of merits. The Civil Revision Petition is also liable to be dismissed as devoid of merits.

36. In the result:

(a) The Civil Revision Petition is dismissed.
(b) The impugned order passed in the E.A. is confirmed.
(c) C.M.P. is closed.
(d) No costs.

23.03.2010 Index: Yes Internet: Yes cs To The Principal District Munsif, Pondicherry.

R.MALA,J cs Order in C.R.P.(NPD).No.2328 of 2004 23.03.2010