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Judgment
The defendant is the appellant in this second appeal.
The respondent/plaintiff filed the suit for recovery of vacant possession of the suit property and for arrears of rent. According to the plaintiff-
Dargha, the suit property belongs to the Dargha and the defendant has been put into possession as a tenant on 1.6.1974 for a monthly rent of Rs.
10/= for a period of one year. Even after the expiry of the tenancy agreement, the defendant is in possession of the suit property. The defendant is
in arrears of rent for a period of 13 months. Since the period of tenancy has expired and also he is in default of payment of monthly rent, the
plaintiff filed the suit for the said reliefs.
The defendant filed a written statement contending that this defendant has constructed a house by spending Rs. 5000/= in the suit property. His
predecessors have been in possession of the suit property even prior to the tenancy agreement dated 1.8.1974 i.e., from 1960 onwards. The
defendant has been regularly paying the monthly rent. The period of tenancy has not come to an end, nor the tenancy agreement has been
terminated. After the defendant paid the rent the plaintiff has executed a fresh tenancy agreement. The defendant is a poor agricultural labour and
he has no other residence except this Kudiyiruppu and thus he is entitled to the benefit of the Kudiyiruppu Act. The defendant is also ready to
purchase the suit land for a sale consideration of Rs. 2000/=. The plaintiff is not entitled to recovery of possession in view of the Kudiyiruppu Act.
On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and
documentary, the trial court dismissed the suit holding that the civil court cannot go in to the issue of entitlement under the Kudiyiruppu Act. On
appeal, by the plaintiff, the first appellate court granted the suit reliefs by allowing the appeal. As against the same the defendant has preferred this
Second Appeal.
At the time of admission, this Court framed the following substantial questions of law in this Second Appeal:-
(i) Whether the Civil Court has the jurisdiction to entertain a suit for eviction of occupant of a Kudiyiruppu in view of the Bar u/s 23 of the Tamil
Nadu Occupants of Kuduyiruppu (Conferment of Ownership) Act (XL of 1971)?
(ii) Whether the non framing of issues and failure to give finding on the requirement of owner occupation and willful default by the courts below is
correct?
(iii)The burden of proof shifted on the appellant to establish whether he is an agriculturist occupant on the suit site is justifiable in view of the
Explanation I for Clause (8) of Section 2 of the Act XL of 1971?
Learned counsel appearing for the appellant/defendant contended that the defendant/tenant is still in possession of the suit property. The plaint
itself says that the defendant is an agriculturist. AS per Section 3(b) of the Tamil Nadu Occupants (Protection) Kudiyirruppu Act, 1971, whether a
person is an agriculturist or agricultural labour and whether he is entitled to the benefits under the said Act are all to be decided only by the
Authorised Officer. The Patta, Ex.B.10 also shows that the defendant is doing agricultural work. It is also admitted that for the past 27 years the
defendant has been in possession of the suit land.
Per contra, learned Counsel appearing for the respondent/plaintiff contended that as rightly held by the first appellate court the defendant is not
an agriculturist or agricultural labour and he is not entitled to the benefits under the Act. He also contended that the suit property is measuring
nearly 8 cents of land and it is almost equivalent to 3000 sq.,ft., and the Kudiyiruppu Act will not applicable to this case. Moreover, as per the
Act, it must be a dwelling Kudiyirruppu i.e., house unit, but the defendant is running a tea stall in the said place and thus doing commercial activity
which disentitles the defendant from claiming the benefits under the Act. The definition in Sub Section (3) of the Act for an agriculturist means a
person who cultivate agricultural lands by the contribution of his own manual labour or of the manual labour of any member of his family. In this
case the defendant has not established that he is an agriculturist. Unless it is established that he is an agriculturist or agricultural labour, he cannot
invoke the provisions of the Kudiyiruppu Act and consequently he cannot question the jurisdiction of the Civil Court. He also referred to the finding
of the first appellate court that the son of the defendant has also applied for Passport to go abroad which only goes to show that either the
defendant or his family members are doing agricultural work or they are poor agriculturist.
The first appellate court proceeded to grant the relief and also held that the civil court has jurisdiction to try the suit relying on the judgment of
this Court rendered by a learned Single Judge of this Court in Ganesan v. Madurai Achari and Anr. reported in 1979 (I) MLJ 29, wherein the
learned Single Judge has taken the view that if the landlord does not concede that it is a Kudiyiruppu, his remedy is not to go before the Authorised
Officer, but only to come to the Civil Court. According to the learned Single Judge, only in case where it is admitted that the house site is a
Kudiyiruppu on application for eviction can be filed for u/s 5 only an owner of a Kudiyiruppu seeking to evict can file an application before the
Authorised Officer. In other words, only the owner who concedes that the site is a Kudiyiruppu can go go before the Authorised Officer for
eviction and if he does not admit the Kudiyiruppu he can file a suit before the Civil Court.
But the said findings of the first appellate court relying on the above judgment is wrong in view of the latter judgment rendered by a Division
Bench of this Court in Kalyanasundraam Udayar v. Pazhaniayya Udayar reported in AIR 1983 Mad 1987 which is binding on this Court. Leanred
counsel for the appellant also referred to the judgment of a learned Single Judge of this Court in Veerappan v. Shanmugavelu reported in 1981 (II)
MLJ 366, which is also a subsequent judgment to the judgment rendered in 1979 (I) MLJ 29.
In Veerappan v. Shanmugavelu reported in 1981 (II) MLJ 366 a learned Judge of this Court taking a contrary view to the judgment relied on
by the first appellate court in respect of ouster of civil court''s jurisdiction u/s 23 of the Kudiyiruppu Act, held as follows:-
Bar of jurisdiction of civil Courts:
Save as otherwise expressly provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Government or the
Authorised Officer is, empowered by or under this Act, to determine and no injunction shall be granted by any Court or other authority in respect
of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Section 3(B) is quite clear and indeed emphatic that the issues involved in the case shall be tried by the Authorised Officer while Section 23 bars
the jurisdiction of the civil Court in respect of such matters which the Authorised Officer is specifically empowered to determine. It is, therefore,
apparent that the combined effect of these provisions is that in the field exclusively earmarked for the Authorised Officer, the civil Court''s
jurisdiction is taken away. Further a reference to Section 5 of the Act will disclose that lit provides an appeal to the District Collector or such
officer as may be specified by the Government in his behalf against the decisions of the Authorised Officer made u/s 3(B) of the Act. This will also
affirm my above view that the questions to be determined by the Authorised Officer u/s 3(B) are within his exclusive jurisdiction"".
xx xx xx xx xx
Lastly, it is now my duty to deal with the decisions of two learned Judges of this Court each taking a view contrary to the other, namely,
Ganesan v. K. Madurai Achari and Tangavelu Naicker v. Lmuthukumara Chettiar. It is no doubt true that N.S. Ramaswami, J. has observed as
follows:
It is to be noted that the special jurisdiction of the Authorised Officer (apart from that u/s 4) is to enquire into and pass orders on applications for
eviction filed by any owner of a Kudiyiruppu. The appeal to the Collector also relates to the same matter. Under this Act, no other question is
within the special jurisdiction of the authorised officer or the District Collector. Particularly, the question whether any house-site is a ''Kudiyiruppu''
or not is certainly not within the special jurisdiction of the authorised officer and the District Collector. As a matter of fact, only in a case where it is
admitted that the house-site is a Kudiyiruppu, an application for eviction can be filed, for Section 5 makes it clear that only an owner of a
Kudiyiruppu seeking to evict can file an application before the Authorised Officer. In other words, only the owner who concedes that the site is a
Kudiyiruppu can go before the Authorised Officer for eviction. That makes it absolutely clear that if the owner does not concede that it is a
Kudiyiruppu, his remedy is not to go before the Authorised Officer but only to come to the civil Court. Of course, it would be open to the tenant to
raise the question that the site is a Kudiyiruppu as defined under the Act and that he is entitled to protection under the Act. In such a case, what is
to happen to the suit in ejectment filed by the owner in the civil Court? Undoubtedly the civil Court has to go into the question whether the site is a
Kudiyiruppu or not. If it finds that it lis not Kudiyiruppu, then the further questions, arising in the suit have to be determined and the suit is to be
disposed of on merits.
There are other situations where the civil Court would have necessarily to go into the question whether the site is a Kudiyiruppu. In a suit for
injunction on alleged attempted trespass or in a suit for possession on the allegation that the defendant is a trespasser, the latter might raise a
contention that he is a tenant and the site is a Kudiyiruppu. A person occupying a site or alleging that he is occupying the same and that it is a
Kudiyiruppu might file a suit for injunction. In all such cases, the civil Court has to decide the question as to whether it is a Kudiyiruppu or not.
Therefore, there can be no doubt that the civil Court has jurisdiction regarding the question.
But it is significant to notice that the attention of the learned Judge was not brought to Section 3(B) of that Act. Had only the said provision been
noticed by the learned Judge, I am quite clear in my mind that he would not have, made the above observation and been persuaded to reason that:
It is not possible to read these provisions as conferring exclusive jurisdiction on the Authorised Officer to decide the question whether a site is a
Kudiyiruppu or not. The Act nowhere says that such a question is one that has to be decided by the Authorised Officer. As already seen, all that
Section 4 says is that if there is a dispute as to whether an agriculturist or agricultural labourer was occupying a Kudiyiruppu on the 19th of June,
1971 (if he had so occupied, the ownership of the site would vest in him), this dispute has to be decided by the Authorised Officer. That does not
mean that the question whether the site is a Kudiyiruppu or not is within his exclusive jurisdiction.
At the outset, when these two decisions were brought to my notice, I had a lurking inclination to refer this matter to a Division Bench. But when it
is seen that the decision of Ramaswami,J., was rendered without a reference to Section 3(B) of the Act and that the said provision in unequivocal
terms confers exclusive jurisdiction to the Authorised Officer and further that the civil court''s jurisdiction is barred in respect of such matters, I am
emboldened to differ from the learned judge and to hold that there is ouster of civil court''s jurisdiction over the issues referred to in the earlier part
of my judgment.
In Kalyanasundaram Udayar Vs. Pazhaniayya Udayar, a Division Bench of this Court overruling the decision of this Court in Ganesan v.
Madurai Achari (1978) 91 MLW 6 , held as follows:-
""The Tamil Nadu Act 40 of 1971, which received the assent of the President on the 20th December 1971, was enacted for conferring
ownership rights on occupiers of Kudiyiruppu in the State of Tamil Nadu. Section 5 of the Act provides that any agriculturist or agricultural
labourer who was occupying lany Kudiyiruppu on the 19th June 1971, either as tenant or as licensee shall, with effect from the date of the
commencement of the Act, be the owner of such Kudiyiruppu and such Kudiyiruppu shall vest in him absolutely free from all encumbrances.
Section 4 says that if any dispute arises whether any agriculturist or agricultural labourer was occupying any Kudiyirupppu on the 19th June 1971,
for purposes of Section 2 of the Act, such dispute shall be decided by the authorised officer and in deciding the dispute the authorised officer shall
follow such procedure as may be prescribed. Section 5 provides for an appeal against the decision rendered by the authorised officer u/s 4.
Section 23 bars the jurisdiction of the civil court in respect of matters which are to be decided by the authorities constituted under the Act.
According to that section, no civil court shall have jurisdiction in respect of any matter which the Government are, or the authorised officer is,
empowered by or under the Act to determine.
Section 23 of the Act is similar to Section 16A of the Tamil Nadu Act 10 of 1969. Section 16-A of the Tamil Nadu Act 10 of 1969. Section
16-A of the Tamil Nadu Act 10 of 1969 came up for consideration before a Full Bench of this Court in Periathambi Goundan Vs. The District
Revenue Officer, Coimbatore and Others, The Full Bench expressed the view that once the Record Officer or any other authority functioning
under the Tamil Nadu Act 10 of 1969 had come to the conclusion that the land had been let for cultivation by tenant, the matters provided for in
Section 3(2)of the Act had to be exclusively determined by such Record Officer or other authority and to that extend the jurisdiction of the civil
court was barred u/s 16-A of the Act. The Full Bench also took the view that after SECTION 16-A had come into force, the natural and normal
course for the parties was to go before the authorities constituted under the Tamil Nadu Act 10 of 1969 to decide the dispute whether a party was
a cultivating tenant or not.
We have to interpret SECTION 23 of the Act in the light of the Full Bench decision referred to above. Since SECTION 23 bars the jurisdiction
of the civil court in respect of any matter which the authorised officer constituted under the Act has to decide, in this case, the question whether any
agriculturist or agricultural labourer is in possession of Kudiyiruppu has necessarily to be decided u/s 4 of the Act by the authorised officer. A
conjoint reading of Section 4 and Section 23 of the Act indicates that if an agriculturist or agricultural labourer raises a dispute that he is in
possession of Kudiyiruppu on the relevant date, he has to approach the authorised officer concerned for a decision on that point and cannot go
before a civil court.
However, situations may arise when one party proceeds on the basis that the Act does not apply to a particular piece of land, but the other
party comes forward with a case that he is entitled to the benefits of the Act in relation to that land. Such was the case before N.S. Ramaswami J.
in Ganesan v. Madurai Achari (1978) 91 MLW 6. In that case, the plaintiff came forward with a suit for recovery of possession of the suit
property from the defendant and the defendant contended that he is an agriculturist in possession of the suit land as Kudiyiruppu and therefore he
cannot be evicted from the suit laid. ;The learned Judge held that the question whether a person is an agriculturist or an agricultural labourer is u/s 4
left to be decided by the civil court though the further question whether such an agriculturist or an agricultural labourer is occupying the
Kudiyiruppu on the relevant date ands as such entitled to the benefits of the Act has necessarily to go before the authorised officer concerned and
the civil court will have no jurisdiction to decide that dispute. We are of the view that on the facts, the judgment in Ganesan v. Madurai Achari
(1978) 91 MLW 6. cannot be construed as holding that inspite of Section 23 of the Act, the civil court will have jurisdiction to decide the dispute
contemplated by Section 4. According to the learned Judge, where a plaintiff files a suit for recovery of possession of a certain property
presumably on the basis that the Tamil Nadu Act 40 of 1971 does not come into play and the defendant by way of defence raises the plea that the
suit land is covered by that Act and therefore he is entitled to the benefits of the said Act, the court cannot dismiss the merely on the basis of the
defence unless the court finds the defence put forward has been prima facie established. However, the learned Judge in that case directed a decree
for possession to be passed subject to the rights of the defendant under the Act. It is in the light of the said decision the lower appellate court had
passed a decree for possession in this case.
Thangavelu Naicker Vs. Muthukumara Chettiar and Another, was a case where the plaintiff came forward with a suit for injunction asserting
that he is an agriculturist in possession of Kudiyiruppu and as such his possession should be protected by the issue of an injunction. Such a suit was
rightly held to be barred by Section 23 of the Act as the plaintiff himself seeks a decision from the civil court that he is an agriculturist in possession
of Kudiyiruppu. On the facts of the respective cases, the said two decisions have to be taken as rightly decided and there is no conflict at all
between them as both of them lay down that the civil court''s jurisdiction is ousted by Section 23 of the Act in respect of disputes coming u/s 4 of
the Act. However, we are of the view that the direction given by N.S. Ramaswami J. in Ganesan v. Madurai Achari (1978) 91 MLW 6 to grant a
decree for possession to the plaintiff subject to the defendant''s rights under the Act has no legal basis. Such a direction cannot be validly granted,
for, there is no provision in the Tamil Nadu Act 40 of 1971 similar to Section 10 of the Tamil Nadu Cultivating Tenants Protection Act 1955,
wherein it is stated that notwithstanding any decree of court, the tenant cannot be evicted from the premises except in accordance with the
provisions of the relative Acts. In the absence of any such provision in the Act, there is no method or manner by which the defendant could
approach the authorised officer to get over the civil court''s decree for possession and as the decree passed by the civil court can immediately be
put into execution he will be evicted from the Kudiyiruppu notwithstanding his rights under the Act. Further, such a decree for possession will be
inconsistent with or defeat the provisions of the Act which is intended to confer certain benefit on persons occupying Kudiyiruppu.
We are, therefore, of the view that the appellate Court is in error in passing a decree for possession against the defendant which is capable of
being executed straightway without reference to the provisions of the Act. Such a direction is also inconsistent with the findings rendered by the
trial court and affirmed by the lower appellate Court that the defendant is entitled to the benefits of the Act. Having held that the defendant is
entitled to the benefits of Act, if the civil court were to pass a decree for possession, that would be completely defeating the provisions of the said
Act. In this view of the matter, we set aside the decision of the lower appellate Court4 and restore the decision of the trial Court. It is, however,
made clear that the plaintiff, if so advised, can approach the authorities concerned under the Act for any relief as against the defendant under the
provisions of the Act.
From the above judgments, it is clear that the Civil Court''s jurisdiction is barred u/s 23 of the said Act to decide any dispute arising u/s 4 of the
Act. Since Section 23 bars the jurisdiction of the civil court in respect of any matter which the authorised officer constituted under the Act has to
decide, in this case, the question whether any agriculturist or agricultural labourer is in possession of Kudiyiruppu has necessarily to be decided u/s
4 of the Act by the authorised officer. A conjoint reading of Section 4 and Section 23 of the Act indicates that if an agriculturist or agricultural
labourer raises a dispute that he is in possession of Kudiyiruppu on the relevant date, he has to approach the authorised officer concerned for a
decision on that point and cannot go before a civil court. Thus, in the above two decisions, of which one is rendered by a Division Bench of this
Court, the earlier judgment reported in 1979 (I) MLJ 29, based on which the first appellate court has granted the reliefs, has been overruled. No
other decision contra to the above said two decisions has been cited. Accordingly, the later decisions of this Court are binding on this Court and
therefore, necessarily the judgment and decree of the first appellate court have to be set aside.
For the reasons stated above, and in view of the binding decisions of this Court referred to above, all the questions of law are answered in
favour of the appellant and consequently, the Second Appeal is allowed setting aside the judgment and decree of the first appellate court. The
plaintiff is at liberty to agitate its right before the Authorities concerned under the provisions of the Kudiyiruppu Act. No costs.