T.Singaravel @ Ramachandran v. Sudarsanathammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.06.2009CORAMThe Hon'ble Mrs. Justice PRABHA SRIDEVANandThe Hon'ble Mr. Justice C.T.SELVAMWRIT APPEAL No.1150 of 20061.T.Singaravel @ Ramachandran2.R.Devadoss3.R.Sri Ramulu... Appellants(Cause title accepted vide orderdated 29.08.2006 made inM.P.No.1 of 2006)Vs.1.Sudarsanathammal2.Mrs.Chitra3.Mrs.Janagaleela4.Mrs.Tatchayini5.R.Vambu6.K.Mahalakshmi7.The Presiding officer, Revenue Court, Karaikal, Union Territory of Pondicherry.8.Sethubala Naidu9.Ramalingam Naidu10.Rajagopal Naidu... Respondents. Appeal has been filed against the order dated 28.06.2006made in W.P.No.2537 of 1998.WP 2537 of 1998 is filed under Art.226 of constitution of Indiato issue a writ of Certiorari calling for the records of the 7threspondent herein pertaining to O.P.No.3/87 and quash the ordertherein dt.30.9.97. https://hcservices.ecourts.gov.in/hcservices/ For appellants: Mr.N.DamodaranFor respondents: Mr.R.Thirugnanam, for R.1 to R.6J U D G M E N T(Judgment of the Court was delivered by PRABHA SRIDEVAN, J.)Respondents 1 to 6 are the legal heirs of one SeetharamaNaidu. He filed O.P.No.644 of 1982 for including his name in theVillage Adangal in respect of R.S.No.101/4 of Thennangudi MelanthamVillage, Thirunallar Commune as 'his own cultivation'. This wastreated as a petition under Section 7 of the Pondicherry CultivatingTenants Protection Act. In this petition, he stated that he hadentered into a sale agreement with one Rathinasamy Naidu ofThillayadi Village, who was the original owner, in the year 1963.Since the owner was in death bed, the sale deed was not executed. Hepaid the entire sale consideration and thereupon, he was put inpossession and he had been in possession and enjoyment of the saidproperty from 1963 onwards and he was also cultivating the same.But, when his name was removed from the Village Adangal withoutnotice to him, the petition was filed. The Presiding Officer of theRevenue Court, while dealing with this, observed that the Adangalextracts have been tampered with and though they show the name of theaforesaid Seetharama Naidu as cultivating tenant from 1969-1973,thereafter, it shows the landlord Rathinasamy Naidu as a "selfcultivator" and that the entries for the fasli 1384 (1975-75) andfasli 1385 (1975-76) had obviously been tampered with. He had alsoreferred to a report of the Tahsildar, which stated that SeetharamaNaidu had been cultivating the land. The Officer also observed thatSeetharama Naidu himself was not decided whether he should claim hisright as an owner or as a cultivating tenant and was vacillatingbetween the two stands. When the matter was taken up by the RevenueCourt, Seetharama Naidu had died and his legal heirs had not beenimpleaded and therefore, after recording the above finding, thepetition was dismissed. 2. The Officer, however, handed over the matter to theDeputy Collector for further action. This order was passed on27.01.1986. Thereafter, in 1987, respondents 1 to 4 and 6 filed apetition under Section 4 of the Pondicherry Cultivating TenantsProtection Act claiming that they were the cultivating tenants inrespect of the said property right from the time of death ofSeetharama Naidu and prayed for change of name in the Adangal. Inthis, the legal heirs of original owner filed their counter denying https://hcservices.ecourts.gov.in/hcservices/ the tenancy rights and also stating that in the earlier proceedings,no tenancy rights were claimed. Then, the first respondentthereafter filed yet another petition in 1997 with the same avermentsand prayed for entering her name in the Village Adangal and to allowher to cultivate the land atleast from the current fasli year.Again, this was resisted by the sons of Rathinasamy Naidu representedby a power agent. An order was passed in favour of the firstrespondent holding that the finding that Adangal Extracts had beentampered with, had attained finality and that there was a saleagreement between Seetharama Naidu and the original owner, though nosale deed was executed recording her name as a cultivating tenant.Against this, the owners filed a writ petition. The writ petitionwas dismissed on the same grounds viz., alleged fraud committed withregard to the Adangal Extracts. Now, the transferees from theowners, have filed this writ appeal.3. Learned counsel for the appellants submitted that thereis no provision for recording the name of a cultivating tenant in thePondicherry Cultivating Tenants Protection Act. Section 4 deals withthe right to restoration of possession and Section 7 deals only witha declaration in a case where the landlord refuses or delaysunreasonably for the execution of the lease deed. Therefore,according to him, the first respondent's prayer for recording hername as a cultivating tenant has been sought for by invoking wrongprovision. He also relied on the decisions reported in 2003 (2)M.L.J. 710 – Tamalarasi v. S.Kumarasamy Gounder and others, 1995 (1)M.L.J. 487 – Sivarama Sethu Pillai v. Rowdri, 1986 (2) M.L.J. 306 –Subramaniam v. V.Periannan and 1966 (1) M.L.J. 7 – S.N.SudalaimuthuChettiar v.Palaniyandavan. Learned counsel further submitted thatthere should be pleadings regarding the personal cultivation andunless the conditions for declaring a person as a cultivating tenantexist, no protection under the Act can be granted.4. Learned counsel appearing for respondents 1 to 6 wouldsubmit that a finding has already been given in the earlierproceeding regarding the cultivating tenancy and that has remainedunchallenged. Learned counsel further submitted that in herpetition, the first respondent has clearly spoken about her right asa cultivating tenant. The said paragraphs read as follows:-"4. In the said order, this Hon'ble Court has beengiven a clear finding that the Village adangal has beenmanipulated by the then Karnam and he has also beensuspended for the same and it was clearly observed thatSeetharaman Naidu was the cultivating tenant in respect ofthe above said properties.5. The petitioners do not have any other income https://hcservices.ecourts.gov.in/hcservices/ except the income from the said lands. Being the ladiesthey could not resist the respondents who with their menand agents cause all sort of troubles in the village."He prayed that the appeal should be dismissed.5. We have to see whether a case of cultivating tenancy hasbeen made out.6. In the statement filed by the husband of the firstrespondent in O.P.No.644 of 1982, which is the genesis for all theseproceedings, there is a mention only of a sale agreement with theoriginal owner Rathinasamy Naidu. According to him, it is this saleagreement which gave him the right to be in possession as seen fromparagraph 3 of the said statement. It is alleged that from 1963onwards, he has been in possession and the Adangal was in his name asown cultivation. No doubt, he has mentioned that there has been somewrongful deletion of his name, but in this earliest pleading, thereis no mention of him being in possession as a cultivating tenant.There is a mention of possession, but not as a cultivating tenant.It is true that in O.P.No.644 of 1982, the Officer had noted thatthere was some tampering of the records for the year 1974-75 and1975-76. But, however, that petition was dismissed. Therefore, evenif some findings have been given, the first respondent could not havechallenged it since the proceedings against her were dismissed. Here,the authority has proceeded on the basis that the above findingforeclosed the issue regarding the cultivating tenancy rights. Evenin this petition under Section 4 of the Pondicherry CultivatingTenants Protection Act, respondents 1 to 4 and 6 have merely statedthat " as per law, they are the cultivating tenants in respect of thesaid property". The relevant provisions are Section 2(a)(i) and(ii), Section 4 and Section 7 which read as follows:- " Section 2(a)(i) : any such person who continues inpossession of the land after the determination of theagreement;Section 2(a)(ii): the heir of such person, if theheir contributes his own physical labour or that of anymember of his family in the cultivation of such land.4.(1) Every cultivating tenant who was in possessionof any land on the 1st December, 1969 and who is not inpossession thereof at the commencement of this Act shall,on application to the Revenue Court, be entitled to berestored to such possession on the same terms as thoseapplicable to the possession of the land on the 1stDecember, 1969. https://hcservices.ecourts.gov.in/hcservices/ (2)Nothing in sub-section (1) shall be deemed toentitle any such cultivating tenant to restoration ofpossession -(i)If, at the commencement of this Act, he is inpossession, either as owner or as tenant or as both, ofland exceeding the extent specified in the Explanationbelow or if he has been assessed to any sales tax,profession-tax or income-tax under the respective lawsrelating to the levy of such taxes during 1967-68 or 1968-69; or (ii)If the landlord, after evicting such cultivatingtenant from the land has been carrying on personalcultivation on the land provided as follows: -(a)the total extent of land held by such landlordinclusive of the land, if any, held by him as a tenant doesnot exceed the extent specified in the Explanation below;(b)the landlord has not been assessed to any salestax, profession-tax or income-tax under the respective lawsrelating to the levy of such taxes during 1967-68 or 1968-69; or(iii)If subsequent to the 1st December, 1969 thelandlord has bona fide admitted some other cultivatingtenant to the possession of the land and such other tenanthas cultivated the land before the commencement of thisAct:Provided that where such other tenant is inpossession, either as owner or as tenant or as both of anyother land which exceeds the extent specified in theExplanation below and the cultivating tenant who wasevicted is not in possession of any land or is inpossession of any other land which is less than the extentspecified in the said Explanation, the cultivating tenantshall be entitled to restoration of possession.Explanation:- The extent referred to in clauses (i) to(iii) above is 2 2/3 hectares of wet land.(3)Every application to the Revenue Court under sub-section (1), shall be made within such time as may beprescribed and shall bear a court-fee stamp of one rupee:Provided that the application may be received afterthe prescribed period, if the applicant satisfies the https://hcservices.ecourts.gov.in/hcservices/ Revenue Court that he had sufficient cause for not makingthe application within the period.(4)On receipt of an application under sub-section (3),the Revenue Court shall, after giving a reasonableopportunity to the landlord and the cultivating tenant, ifany, in possession of the land, to make theirrepresentations, hold a summary inquiry into the matter andpass an order either allowing the application or dismissingit and in passing an order allowing the application, theRevenue Court may impose such conditions as it may considerjust and equitable including conditions in regard to -(i)the payment by the applicant of any arrear of rentalready due from him to the landlord, but not exceeding oneyear's rent, and(ii)the reimbursement by the applicant of the landlordor the other cultivating tenant in respect of the expensesincurred or the labour done by him during the period whenthe applicant was not in possession, on any crop which hasnot been harvested, if an agreement is not reached betweenthe parties as regards the rates and manner of suchreimbursement.Explanation:-In lieu of imposing any condition inrelation to reimbursement as provided in clause (ii), theRevenue Court may, in its discretion, postpone therestoration of the applicant to possession of the land,until any crop which is being grown thereon at the timewhen the order is passed, has been harvested.(5)Any cultivating tenant who after the commencementof this Act has been evicted except under the provisions ofsub-section (4) of section 3 shall be entitled to apply tothe Revenue Court within two months from the date of sucheviction for the restoration to him of the possession ofthe lands from which he was evicted and to hold them withall the rights and subject to all the liabilities of acultivating tenant and the provisions of sub-section (4)shall, so far as may be, apply to such an application. 7.(1) In the case of every tenancy agreement enteredinto after the coming into force of this Act between acultivating tenant and a landlord, a lease deed shall beexecuted in triplicate in the prescribed form, within areasonable time after the commencement of such tenancy,specifying the name and description of the cultivatingtenant, the name (if any), survey number, description and https://hcservices.ecourts.gov.in/hcservices/ extent of the land leased out and the terms of the tenancy;and shall be signed both by the landlord or his agent andby the cultivating tenant. One of the three copies shall bekept by the landlord, one shall be kept by the cultivatingtenant and the third shall be caused to be lodged in theTaluk Office or Sub-Taluk Office, as the case may be, bythe landlord or his agent within a fortnight of the date onwhich the cultivating tenant signs it:Provided that if the landlord or the cultivatingtenant refused or delays unreasonably to execute the leasedeed, it shall be open to the cultivating tenant or thelandlord, as the case may be, to lodge the deed in theTaluk Office or the Sub-Taluk Office, as the case may be,with a declaration that the other party has refused ordelayed unreasonably to execute it.(2)No stamp need be affixed to the lease deed.(3)In the case of any tenancy, if the landlord or hisagent or the cultivating tenant refuses to sign or fails tolodge the lease deed in accordance with the provisions ofsub-section (1), the Revenue Court may impose on thelandlord or the cultivating tenant, as the case may be, apenalty which may extent to fifty rupees; and any penaltyso imposed may be recovered as if it were an arrear of landrevenue."So, the cultivating tenant must contribute his own physical labour orany member of his family should contribute his own physical labour.Contribution of physical labour is a must for invoking the protectionof this Act. There is no pleading herein regarding any suchcontribution of physical labour. An heir claiming such rightsshould again prove personal cultivation. The other crucial conditionthat has to be satisfied by a person claiming this right, is theexistence of an agreement express or implied on condition of payingrent therefor in cash or in kind. There is no pleading regarding anysuch agreement either express or implied. It may be that there wasin fact some tampering of the Adangal extract. We do not know whotampered with the records. But a person who claims some rightsunder the Act, will have to prove that he or she is a cultivatingtenant. He cannot become a cultivating tenant merely because theopposite party had tampered with the records. 7. The learned counsel for respondents 1 to 6 submitted thatthe matter may be remitted so that proper evidence could be let in.We find that neither in the petition filed under Section 4 of the Actby the present respondents 1 to 4 and 6 nor in the statement filed bySeetharama Naidu himself is there any pleading relating to https://hcservices.ecourts.gov.in/hcservices/ cultivating tenancy, nor to any tenancy agreement either express orimplied. Without any pleadings, we cannot allow the matter to besent back for filling up blanks by oral evidence. There can be noevidence without the basis of pleading.8. In (2003) 2 M.L.J. 710 – Tamalarasi v. S.KumarasamyGounder and others, the Division Bench of this Court has, in para 22,dealt with a similar situation. In that case also, the pleading wasthat the second defendant was in possession and that he was acultivating tenant. But there was no pleading regarding thecontribution of physical labour. It is identical to this case. TheDivision Bench held that the second respondent in that case was not acultivating tenant. Paragraphs 19, 22 and 24 of the said judgmentreads as follows:-" 19. Thus, in this case, applying the principleslaid down by various Courts, it could be seen, the words"such person" refer to a person referred earlier. Theperson referred earlier in Sec.2(aa)(i) is one whocontributes his own physical labour or that of any memberof his family in cultivation of any land. Or in otherwords, Sec.2(aa)(ii)(a) has to be understood as any personwho contributes his own physical labour in the cultivationor that of any member of his family in the property inwhich he is in possession even after determination oftenancy agreement. If mere possession is sufficient thatLaw makers would not have employed the word 'such' in Sec.2(aa)(ii)(a). Can a person, who after the expiry of thelease period continues to be in possession, but runs apetty betelnut shop or an arrack shop instead ofcultivating the land, claim the status of a cultivatingtenant. The answer is emphatically 'No'. The act is toprotect only a cultivating tenant. Any interpretation hasto be in consonant with justice and reason and should notbe absurd.""22. Coming to the present case, second defendant hasto plead and prove that even after determination of tenancyagreement he continues to be in possession and cultivatingthe land contributing his own physical labour. It would notbe sufficient if he simply says that he is in possession.In the present case, second defendant has only pleaded inthe written statement that he is a cultivating tenant.Nowhere he has stated that he is contributing his physicallabour and cultivating the land. That apart, he has notwhispered anything in that regard in his evidence also.Even the plea that he is entitled to the benefits of theAct has not been made." https://hcservices.ecourts.gov.in/hcservices/ "24. In these circumstances, it has to be held thatsecond defendant is not a cultivating tenant ascontemplated under Tamil Nadu Cultivating TenantsProtection Act, 1955. Once we come to such conclusion, thennecessarily we have to declare that the plaintiff isentitled to a decree for possession as well. "This decision squarely applies to this appeal. The respondents 1 to 6and 8 to 10 have not made out a case of tenancy. 9. For the reasons stated above, the writ appeal standsallowed and consequently the order dated 28.06.2006 made in W.P.2537of 1998 is set aside. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsbiTo The Presiding officer, Revenue Court, Karaikal, Union Territory of Pondicherry.+1cc to Mr.R.Thirugnanam, Advocate Sr 21683+1cc to Mr.N.Domodaran, Advocate Sr 21700KA(CO)km/2.7. W.A.No.1150 of 2006