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Judgment
Bellie, J.—In this second appeal the only question that arises for consideration from the arguments advanced is whether the suit document Ex. A1 is a lease deed or licence. According to the plaintiff he is the owner of the suit coconut tope and under the agreement Ex. A1 the defendant has been given the right to collect the coconuts in the trees for the period from 19.12.1982 to 30.6.1983 for a sum of Rs. 200/- which shall be paid on or before 14.4.1983. The defendant did not pay this amount and also violated the other terms of the document and therefore the plaintiff revoked the licence and forfeited the defendant''s rights and took possession of the property under his control on 28.4.1983. The defendant is trying to trespass into the land with the assistance of unruly elements and therefore it is necessary that an order of injunction is passed against him from entering into the land. It is the further case of the plaintiff that the defendant had been a licensee intermittently and towards the past arrears of rent due for those periods he executed Ex. A2 promissory note for a sum of Rs. 3,500/- and that amount also was not paid. He further pleaded that the defendant when he was in possession of the property as a licensee committed acts of waste and thereby the plaintiff has sustained damages for the value of Rs. 3,000/-. On these grounds the plaintiff filed the suit for injunction restraining the defendant from interfering with the possession of the suit property by the plaintiff and for a decree for a sum of Rs. 3,659/- due on the promissory note towards principal and interest, and for recovery of Rs. 207/- being the total of the present rent due with interest thereon, and for Rs. 3,000/- for damages with interest thereon at 12% per annum.
As against this the defendant contended that the defendant is a cultivating tenant of the suit land and he is not a licensee as pleaded by the plaintiff. The defendant has been ready to pay the rent to the plaintiff and it was only the plaintiff who was postponing the receipt of the rent and now he has filed the suit. It is false to state that the plaintiff had taken possession of land on 28.4.1982. He has then stated that he executed the promissory note for Rs. 2600/- but he is entitled to the benefits under the Agriculturists Act 50 of 1982 and therefore he is not liable to pay the amount due under the said promissory note. He then contended that he did not commit any act of waste as alleged in the plaint. On these contentions the defendant prayed for dismissal of the suit.
The trial court on consideration of the evidence held that the defendant is a licensee as pleaded by the plaintiff and he is not a cultivating tenant. It further held that the amount claimed under the promissory note Ex. A2 is due from the defendant. But the trial Court held that the plaintiff failed to prove the alleged act of waste committed by the defendant. On these findings and also considering the fact that the defendant has admitted the rent claimed to be due for the period mentioned in the plaint, passed a decree for injunction against the defendant restraining him from interfering with the possession and enjoyment of the suit property by the plaintiff, for recovery of Rs. 3750/- with future interest on Rs. 3,500/- at the rate of 6% per annum and Rs. 200/- as rent payable by the defendant with further interest.
The defendant filed an appeal but the appellate Court confirmed the said findings of the trial Court and dismissed the appeal.
Now in the second appeal the only question that was argued is that the finding of the Courts below that under the document Ex. A1 the defendant is a licensee and not a cultivating tenant is erroneous.
A close reading of the document Ex. A1 clearly shows that the parties intended that the defendant will have the right to collect the usufructs of the trees for the period from 19.12.1952 to 30.6.1983 and the defendant shall not have any right in the land as such. According to the plaintiff the defendant failed to pay the amount within the time stipulated in the document and therefore he took control of the land. The defendant''s case is that he is a cultivating tenant and therefore he is not liable to be evicted and it is not proved that the plaintiff took control of the land from him. But it is admitted by the defendant that he has not paid the amount within the stipulated time.
If the right given to the defendant under Ex. A1 is merely a right to collect coconut from the trees and as contended by the plaintiff it is only a licence then the defendant will not have any right in the land. If on the other hand he is a cultivating tenant as pleaded by the defendant the control of the tope could not be taken from him. The Learned Counsel for the appellant-defendant contending that the right given to the defendant under Ex. A1 is only a lease, relied on a Division Bench decision of the Madras High Court in Venugopal Pillai v. T 61 L.W. 514, and further submitted that this has been followed by Mohan, J. in R. Saravanan v. Vedaranewswaraswami Devasthanam Vellalar Koil, Mayuram Town 95 L.W. 322. Subsequent to the said Division Bench ruling another decision was rendered by another Division Bench of this Court in "A. Govindaswamy Vanniar v. S. Mahalakshmiammal and Others 76 L.W. 378 wherein the Judgment of the said earlier Division Bench was referred to, and then decided that the right to collect the usufructs of the trees in a tope is only a licence and not a lease. I myself in V. Natarajan Vs. Veerabadra Udayar and Another, have referred to both these Judgments and held that the latter Judgment has to be followed, and with regard to a similar transaction I have held that the right given to the defendant was only a licence and not a lease.
Having held so in view of the Division Bench ruling in V. Natarajan Vs. Veerabadra Udayar and Another, on a deeper consideration of the matter it appears to me that the transaction in question is rather a sale than even a licence not to speak of a lease. A reading of the document Ex. A1 shows that the defendant had been given the right to take the ripe coconut fruits from the trees for a stated period for a stated sum. The thing is, is it not a sale?
S. 6 of the Sale of Goods Act reads as follows:-
Existing or future goods.--(1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or future goods.
(2) There may be a contract for the sale of goods the acquisition of which by the seller depends upon a contingency which may or may not happen.
(3) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.
From this definition it appears to me that it is clear that the transaction is a sale of goods viz., the ripe coconut fruits. There is absolutely nothing to show that any interest in the land also has been conveyed to the defendant.
It may be relevant to read what is stated in Halsbury''s Laws of England, Fourth Edition, Volume-1, at Page 765 paragraph 1407, under the heading Sale of Growing Crops, etc. The relevant portion reads as follows: If the sale is of the crop when growing, it may nevertheless be a sale of chattels if the crop is fructus industriales, that is produced by man''s labour.
A contract for the sale of fructus industriales while growing, whether they are in a state of maturity or have still to derive nutrient from the land in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for the sale of goods.
For the above said reasons, I find no merit in the second appeal. Accordingly it is dismissed with costs.