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Judgment
N.V. Balasubramanian, J.—An oft-repeated question whether there was a lease on agricultural land or whether there was a licence granted
to the licensee to pluck the fruits of the trees arises in this Writ Petition. The petitioner is the owner of the land of an extent of about 11 acres and
16 cents situate in Rangiam village, Udayarpalayam Taluk, Trichy District. According to the petitioner, the land is a thope comprising cashew nut,
mango and jack fruit trees and also other miscellaneous trees of all kinds and the trees were already grown up and they yielded usufruct without
any personal exertion on the part of those maintaining it and no personal labour involving muscular energy was needed for the said trees to yield the
usufruct. According to the petitioner, the petitioner and his brothers were in enjoyment thereof by plucking and collecting the fruits of the trees
every year and utilising the same partly for their consumption and mostly for sale. According to the petitioner, in or about the year 1978, when the
petitioner''s father was alive, he transferred by way of licence the use and enjoyment of the usufruct of the said trees to the first respondent and
accordingly, an agreement was entered into on 17.8.1978 by the father of the petitioner with the first respondent herein and the terms of the
document will be noticed later. The first respondent, on the basis of the document claimed that she was a cultivating tenant which was negatived by
the Tahsildar. The first respondent then preferred an appeal before the Revenue Divisional Officer, Ariyalur and the Revenue Divisional Officer
allowed the appeal and held that the name of the first respondent should be included in the Register of final Record of Tenancy rights in respect of
the land in dispute. There was a revision before the District Revenue Officer, Trichy. The District Revenue Officer passed his order on 26.8.1990
confirming the order of the third respondent. The petitioner has challenged the order of the District Revenue Officer, Trichy dated 26.8.1990
confirming the order of the third respondent and prayed to quash the said order.
The controversy in this case centres around the interpretation of the deed dated 17.8.1978 and the clauses which are relevant for the purpose of
this case read as under:-
The case of the Writ Petitioner is that there was no lease, but what was granted under the deed was only a licence.
Mr. AR.L. Sunderasan, learned counsel for the petitioner submitted that the distinction between a lease and a licence is well defined. He
referred to Section 52 of the Easements Act, 1882 and submitted that what was granted in favour of the first respondent was only a right to enjoy
the usufruct and the same was revoked. He referred to the terms of the agreement and stated that what was granted was only a right to enjoy the
usufruct of the trees and inclusion of the land beneath the trees, according to the counsel for the petitioner, would not create any interest on the
land. Learned counsel for the petitioner submitted that those words should be read along with the words preceding and the document does not
create any other right in land except the right to collect the usufruct of the trees. He also submitted that the fact that possession was given for a
period of 5 years would not establish that there was a lease as u/s 52 of the Easements Act, the possession was only incidental to the right to
collect the usufruct of the trees. According to the learned counsel, there was no agreement of the parties to lease out the land and the intention was
also the same and the manner of payment of the licence amount also shows that what was granted was only a licence. He also submitted that the
cultivation was not permitted under the agreement and in the absence of any agreement too cultivate the land, learned counsel for the petitioner
submitted, the first respondent cannot be regarded as a cultivating tenant. Learned counsel for the petitioner submitted that there is no evidence at
all to show that the first respondent was cultivating the land and he referred to the evidence of the first respondent before the Tahsildar and
submitted that the first respondent has herself admitted that in the agreement nothing was mentioned about the cultivation of land and she deposed
to the effect that only the attesting witnesses knew about the terms of the agreement. He referred to the evidence given by the attesting witnesses
and submitted that both of them have stated that the first respondent has no right of enjoyment of the land and there was no agreement for the
cultivation of the land. He also brought to my notice the evidence of one Chidambara Padayachi, examined on behalf of the first respondent, who
has stated that he has not seen who was cultivating the land. He therefore submitted that the respondents 2 and 3 have-not considered all the
materials on record and he therefore submitted that though this Court may not reappreciate the evidence, but when the findings of the respondents
2 and 3 are perverse and the findings were arrived at without considering the materials on record this Court should interfere. He further submitted
that the mere fact that the possession was given would not amount to grant of lease and even for a licence permission to enter upon the immovable
property is required. He also submitted that there is no exclusive possession and the document does not specify the mode of cultivation and the
land was not capable of cultivation also. He submitted that even the Schedule to the agreement also indicates what was given was only a right to
pluck usufruct of the trees and the intention of the parties was to grant only a licence. He relied upon the following decisions:- (i) Venugopal Pillai v.
Thirunavukkarasu and others (A.I.R. 1949 Mad 148 = 61 L.W. 514) (ii) Govindaswami v. Mahalakshmi Ammal (76 L.W. 378), (iii) Murugesan
v. Sundaralal (94 L.W. 298), (iv) Venkatachalapathy Odayar Vs. Rajalakshmi Ammal, (v) Natarajan v. Veerabadra Udayar ( 1990 I L.W. 186).
(vi) Mani Thevar v. R.M. Venkatachalam (1992 2 L.W. 234), and (vii) Senniappa Nadar Vs. T.R. Sarojini Ammal and Another, .
Learned counsel for the first respondent, on the other hand, submitted that the evidence of the first respondent before the Tahsildar clearly
shows that there was cultivation by the first respondent and the fact that the land was also mentioned in the agreement establishes that the father of
the petitioner allowed the first respondent to cultivate the land and hence, it is only a case of lease. He also submitted that the finding of the second
and the third respondents that the first respondent is a cultivating tenant was arrived at on the basis of the materials on record and he referred to the
evidence of the first respondent wherein she has stated that she has been cultivating the land and it is not correct to state that the entire land is a
thope. Learned counsel for the first respondent therefore submitted that the adangal register also clearly shows that the first respondent has been
cultivating the land and the village accounts also show that the first respondent is a cultivating tenant. Learned counsel for the First respondent
relied upon the decisions of this Court in the case of Venugopala v. Thirunavukkarasu (A.I.R. 1949 Mad 148 = 61 L.W. 514). Renga Iyengar v.
Sivaswami Pandaram (1977 (II) M.L.J. 265 = 90 L.W. 559), Saravanan v. Sri Vedaranyeswaraswami Devasthanam (1982 (II) M.L.J. 290 = 95
L.W. 322) and Munian Muthuraja v. Rajarathinam (1960 (II) M.L.J. 475 = 73 L.W. 329).
Learned counsel for the petitioner, in his reply, submitted that the rent receipts do not show the cultivation of the land by the first respondent and
he referred to the order of the Tahsildar wherein he has considered the rent receipts and held that the rent receipts did not show that there was
cultivation of the land by the first respondent.
Before considering the arguments advanced by the learned counsel for the parties, it is necessary to refer to the decisions relied upon by the
learned counsel for the parties. In Munian Muthuraja v. Rajarathinam (1960 (II) M.L.J. 475 = 73 L.W. 329), Ananthanarayanan, J. (as His
Lordships then was) considered the question of a person''s right in taking a lease of usufruct alone and the learned Judge held that the person could
be regarded as a cultivating tenant. Learned Judge laid down the following test and came to the conclusion that the lessee should be regarded as a
cultivating tenant.
The lessee will necessarily have to provide the minimum care for the plantation, and so long as we may take judicial notice of this fact, he would
certainly be a person engaged in ""cultivation"" within the meaning of the Act. Otherwise, the result would be the patently fallacious and absurd one,
that in every case, the application of the definition would depend upon oral evidence as to the kind of manual labour employed by the lessee. It is
not pretended that cashew trees, being organic growth, can subsist by themselves without the necessary minimum care, such as watering, etc. In
the case of a lease, it is obviously the lessee in occupation who will be providing this minimum care"".
G. Ramanujam, J., in Venkatachalapathy Odayar v. Rajalakshmi Ammal (1981 (I) M.L.J. 11 = 93 L.W. 505) considered the decision of this
Court in the case of Panchapakesan v. Swaminathan (1971) I M.L.J. 169 = 84 L.W. 800) and the observations made by the learned Judge are
relevant for the purpose of this case which are thus:
To decide whether a particular transaction is one of licence or lease. Courts have applied various tests. If a right is created in respect of a land for
a specified time and the grantee is expected to exploit the land for purposes of his own, then the transaction can be said to be one of lease. Hut,
where without creating any interest in the land the right to collect the usufructs from the trees standing on the land alone is given, the grantee cannot
claim to be a lessee, he can be said to be a licensee only. In determining whether a particular transaction is a lease or a licence, we have to be
guided by the substance of the deed evidencing the transaction and the intention of the parties.
In Panchapakesan v. Swaminathan (1971) I M.L.J. 169 = 84 L.W. 800), this Court has pointed out the distinction between a lease and a licence.
It was pointed out in that case that the distinction between a lease and a licence is well-established, that if there is a document, the substance of the
document must be preferred to the form, that the real test is the intention of the parties whether they intended to create a lease or a licence, that if
the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property, of which the legal
possession continues with the owner, it is a licence. The distinction between a lease and licence had been pointed out by the Supreme Court in
Associated Hotels of India Ltd. Vs. R.N. Kapoor, ). In the said decision, it was pointed out that the real test is the intention of the parties and that
if the document creates an interest in the property, it is a lease, but if it merely permits another to make use of the property, it is a licence. In Mrs.
M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, , the Supreme Court again pointed out that the intention of the parties is the
decisive consideration for finding out whether the agreement between the parties created a relationship of landlord and tenant or merely that a
licensor and licensee, that the intention of the parties has to be ascertained on a consideration of all the relevant provisions in the document and that
in the absence of a formal document, the intention must be inferred from the circumstances and conduct of the parties"".
In Murugesan v. Sundaralal (94 L.W. 298), the deed which was the subject mailer therein conferred on the tenant the right to enjoy usufruct
from the trees in consideration of payment of rent at a certain rule and in that factual situation the learned Judge had no hesitation in holding that
where the lease impinges on the usufruct of the trees standing on the land and where the land is severely excluded from the ambit of the subject
matter of the lease, the lessee cannot be regarded as a cultivating tenant.
Bellie, J., had considered a similar question in more than one occasion. In V. Natarajan Vs. Veerabadra Udayar and Another, the learned Judge
taking into consideration the decisions of a Division Bench of this Court in the case of Govindasami Vanniar v. Mahalakshmi Ammal ( 76 L.W.
378 = (1963) 2 M.L.J. 137) and P. Venugopala Pillai Vs. V. Thirunavukkarasu and Others, held that the right to collect the produce from the
trees could not be regarded as a lease of the land and what was granted was only a right to collect the produce from the trees and there was no
right on the land and the tenant could not be regarded as a cultivating tenant.
In Mani Thevar v. R.M. Venkatachalam (1992 2 L.W. 234), Bellie, J. again considered the similar question and after referring to earlier
decisions, learned Judge held that the defendant was only given a right to collect the coconuts from the trees and the transaction should be
regarded only as a licence. In Senniappa Nadar Vs. T.R. Sarojini Ammal and Another, , P. Sathasivam, J. considered earlier case laws on the
subject and held that if there had been transfer of land in favour of a person by way of lease, then the person is entitled to the protection of the
Cultivating Tenants'' Protection Act and where there was no demise of the land, the transaction should be viewed only as a licence.
In Venugopala v. Thirunavukkarasu (A.I.R. 1949 Mad 148), a Division Bench of this Court was considering a case where there was an
agreement of rent in respect of toddy yield of the coconut trees and the defendant obtained a right to enjoy the toddy yield and the right to enter
upon the land for that purpose, but did not obtain any right in the land and on those facts, learned Judge found that the defendant was not entitled
to the exclusive possession of the land as such but the owner was entitled to make such use of the vacant land as he wanted to and was also
expected at his own cost to water the trees, keep them in condition and engage men to do all the acts of bettering the garden. The learned Judge
held that the defendant was not a lessee of the land and in so far as the land was concerned, he was only a licensee and his right to enter upon the
land to use the land was found to be existing so long as he had the right to enjoy the toddy yield from the trees.
In Renga Iyengar v. Sivaswami Pandaram (1977 (II) M.L.J. 265), V. Ramaswami, J. (as His Lordship then was) held that where there was a
lease of right to cut and remove coconut trees standing on the immovable property, it was a lease and that too, it was an agricultural lease and the
learned Judge held as under:-
The definition of immovable property includes standing trees and only standing trees are excluded under the Transfer of Property Act. Since in this
case the lease was not a lease of the land but it was a lease of the right to cut and remove coconut from the trees standing on an immovable
property, it is a lease of immovable property itself and as held by this Court, it is also an agricultural lease"".
S. Mohan, J. (as His Lordship then was) in Saravanan v. Sri Vedaranyeswaraswami Devasthanam (1982 (II) M.L.J. 290) held that where a
right was given to pluck coconut in favour of the plaintiff, that right to pluck coconut would amount to lease and so long as the said lease was
subsisting, he was entitled to the protection of the Tamil Nadu Cultivating Tenants'' Protection Act. Learned Judge, following the decision of V.
Ramaswami, J. in Renga Iyengar''s case (cited supra), held that the right to pluck coconut would amount to lease of the land.
In Govindaswami v. Mahalakshmi Ammal (1963 II M.L.J. 137), the facts are that there was a document under which a right was created in
respect of trees standing thereon and the right was only to collect the produce from the trees and no interest was created on the land and there was
an undertaking on the part of the lessee not to cultivate any other part of the land and there was an express term stating that the trees alone were
leased out This Court, in those factual situations, held that what was granted was a lease of the usufruct from the trees coupled with the licence on
the land. The above decision is not applicable to the facts of the case. In the instant case, there was a transfer of the land also and the lessee was
given exclusive possession of the land and there is no express term to the effect that the lessee should not cultivate the land, but on the other hand,
there is an implicit agreement that the lessee was allowed to cultivate the land as the lessor was made liable for the loss, if the lessor prevents the
lessee from entering upon the land or if the lessor alienates the land to any third party. In other words, a right in the land was created and the
opening words of the deed implies that a right in the land was created in favour of the lessee. Otherwise, there was no necessity for the lessor to
bear the loss, if he prevents the lessee from entering upon the land or if he alienates the land to any third party. Further, there is no express recital
to the effect that what was given was only a right to enjoy the usufruct of the trees, but, if that was the intention, that could have been stated by the
parties in the document. On the other hand, the clause, ''the lease of the trees and the land'' clearly shows the intention of the parties too the effect
that what was given was a lease to cultivate the land and not it was a mere licence. Applying the various tests laid down in various decisions to the
facts of the case, it is clear that the agreement provides not only a right over the trees, but also in the land. If as contended by Mr. A.R.L.
Sunderasan, learned counsel what was demised was only a right to pluck the usufruct from the trees, there is no reason why a right should be given
to the lessee in respect of the trees and also in respect of the underlying land. That apart, the second part of the document gives exclusive
possession of the land in favour of the first respondent and there is also a clause to the effect that if the owner of the land prevents the lessee from
entering upon the land or if he alienates the land, he would be liable to pay the loss to the lessee. Though there are no specific words empowering
the lessee to cultivate the land, the intention of the parties, as seen from the document, clearly shows that what was given on lease was the land and
the trees standing thereon. In other words, there are no restrictions contained in the agreement to the effect that the right of the lessee is restricted
to the usufruct from the trees. On the other hand, the expression, ""kuthakai"" of the land and trees indicates the intention of the parties that the lessee
was allowed to have the benefit of cultivation. The mere fact that a fixed sum of Rs.3000/- was to be paid on the date mentioned, without
reference to the factum of cultivation or realisation of produce is not very relevant when the land was given on lease to the lessee for cultivation.
Though the attesting witnesses have deposed to the effect that the lessee was not given any right to enjoy the land, in view of the expressions
contained in the document, much reliance cannot be placed on the oral evidence of the attesting witnesses. The evidence of the first respondent
also shows that she has been cultivating the land which was accepted by the second and third respondents. The third respondent found that the
lessee has been cultivating the land and the adangal register of the village also proves the factum of cultivation of the land in question. Though the
receipts given by the father of the petitioner do not show that the amounts were received towards rent of the land, the absence of any recital is not
of much importance when the factum of cultivation by the first respondent was accepted by the respondents 2 and 3. In my view, the agreement
clearly envisages that there was a lease of the land. The contention of the learned counsel for the petitioner that there is no agreement for cultivation
is also not acceptable. The agreement was entered into after coming into force of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955.
Though there is no express agreement providing for cultivation of the land by the first respondent, a close reading of the document shows that the
first respondent was given lease of the land and trees and the lease of the land can only be for cultivation. Therefore, in my view, the agreement to
cultivate the land is implicit in the agreement itself. That apart, the respondents 2 and 3 have come to the conclusion on the materials available on
record that the first respondent is a cultivating tenant and this Court is not sitting in appeal and unless it is established that the views of the
respondents 2 and 3 are perverse, this Court will not interfere with such findings. I find that the findings of the respondents 2 and 3 are supported
by materials on record and the agreement entered into between the parties also proves the intention of the parties and it provides for the use of the
land along with the trees. Therefore, I do not find any infirmity in the order of the second respondent confirming the order of the third respondent.
Accordingly, the Writ Petition fails and it is dismissed. However, in the circumstances, there will be no order as to costs. Consequently, W.M.P.
No. 24120 of 1990 is dismissed.