IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.03.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR S.A.No.500 of 2000 1.G.Anushya 2.V.Chapaha Lakshmi 3.R.Chitra 4.A.Gayathiri 5.M.Kanagalakshmi ... Appellants vs. 1.Veerasamy Naidu (died) 2.V.Mani 3.V.Manoharan 4.V.Jayaraman 5.N.Nagarajan ... Respondent (RR2 to 5 brought on record as L.Rs. Of the deceased sole respondent vide order of this Court, dated 21.08.08 made in CMP.No.14169/2001) Second Appeal is directed against the judgment and decree, dated 28.10.1999 made in A.S.No.317 of 1992 on the file of the Principal Sub Court, Nagapattinam, reversing the judgment and decree, dated 28.06.1991 made in O.S.No.217 of 1990 on the file of the District Munsif Court, Nannilam. For Petitioner : Mr.N.Manoharan For Respondents : Mr.V.Subramanian In McGan Law Firm O R D E R The second appeal is directed against the judgment and decree made in A.S.No.317 of 1992, dated 28.10.1999 on the file of the Principal Sub Court, Nagapattinam. 2. For the sake of convenience, the parties are addressed as plaintiff and defendant. 3. The plaintiff's case are as follows: The plaintiff owns wet lands and a house. The defendant was engaged as a "Kariyastar" to supervise the cultivation of lands owned by the plaintiff. Having found that engagement of a "Kariyastar" as surplus, by mutual consent, the services of the defendant came to an end. As an agent of the plaintiff, the defendant was given free residential accommodation in the suit house and such permission came to an end on the cessation of the privity of contract of master and servant. On termination of his service, the defendant agreed to vacate the house within six months thereof and hand over the possession. But on the contrary, the defendant refused to vacate the house, i.e., suit property. The plaintiff issued a registered notice, dated 14.05.1990 to the defendant, calling upon him to deliver vacant possession of the suit property. In response, the defendant claimed protection under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971. Hence, the plaintiff filed a suit for a direction to deliver possession of the suit property and pay the past and future profits till the delivery of possession. 4. The defendant in his written statement has stated that he initially joined as "Kariyastar", about 30 years ago. He was put in possession of the residential house and that the plaintiff promised to pay 80 kalams of paddy every year. From 31st March 1990, he was not paid remuneration. Even though 80 Kalams of paddy per year was fixed as salary, the plaintiff paid only 70 kalams of paddy every year from 1970 and deducted 10 kalams of paddy each year, set apart, for the value of the house and thereby, retained 200 kalams of paddy, which was the price for the residential house. According to him, he had spent nearly Rs.20,000/- for up-keep of the house and paid electricity Charges regularly. The defendant and his family members are engaged in cultivation, which is their main source of income. According to him, the residential house is a "Kudiyurupu" and in the adjacent lands, he had reared coconut saplings. The defendant has claimed benefits under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971. For the above said reasons, he has prayed for dismissal of the suit. 5. Before the trial Court, the plaintiff examined himself as PW.1 and on his side, one Mr.R.Subramaniam was examined as PW.2. 8 documents were marked. The defendant examined himself as DW.1 and on his side, one Mr.Abdul Rahman was examined and 37 documents were marked. On going through the pleadings and documents, the trial Court framed the following issues, (1) Whether the plaintiff is entitled to delivery of vacant possession and whether he is entitled to the past and future profits till the delivery of the possession? (2) Whether the defendant has become the owner of the house? (3) Whether the defendant is entitled to the benefits under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971? 6. The Trial Court, on appreciation of oral and documentary evidence, decreed the suit and directed the defendant to vacate and handover possession and granted a month's time for the defendant to vacate the suit property. In so far as the relief of past and future profits, the plaintiff was given liberty to take steps under Order 20 Rule 12 CPC. On appeal preferred by the defendant, the judgment and decree of the trial Court were set aside. Hence, the Second Appeal. 7. While entertaining the second appeal, this Court has framed following substantial questions of law for consideration: (1) Whether the respondent/defendant is in occupation of the suit property as Kudiyiruppu and whether he is entitled to the benefits of the Tamil Act 10 of 1971 and whether the civil Court has no jurisdiction to decide that question? (2) Whether the findings of the Lower Appellate Court is correct in law in holding that the defendant is an agriculturist and agricultural labour as defined under Section 2(1) and 2(3) of the Tamil Nadu Occupants Kudiyiruppu (Conferment of Ownership) Act, 1971 to claim benefit under Section 3 of the said Act? (3) Whether in the absence of any specific issue as regards the protection under Kudiyiruppu Act is the Lower Appellate Court right on coming to the conclusion that the defendant is entitled to shelter under the Act, and more particularly in view of the decision reported in 1998 MLJ (Supp) 506? 8. Mr.N.Manoharan, learned counsel for the plaintiff/appellant, taking this Court through the plaint averments, Ex.P6, legal notice, dated 10.07.1990 sent by the plaintiff and Ex.P7, reply of the defendant, submitted that the defendant was engaged only as a "Kariyastar" to supervise the cultivation of the lands owned by the plaintiff and other family members. In such capacity, the defendant was provided with a free residential accommodation belonging to the plaintiff. As the extent of lands got reduced, "Kariyastar" was found to be surplus and therefore, his engagement to supervise the cultivation was not required by the plaintiff and consequently, there was cessation of privity of contract. Therefore, he submitted that the defendant was never recognised as an agriculturist under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971. 9. Inviting the attention of this Court to the word "agriculturist" in the above referred statute and the legal obligation of the defendant, in case if he was an agriculturist or an agricultural labourer, to move the competent authority, viz., Authorised Officer under the Act, learned counsel for the plaintiff/appellant submitted that the lower appellate Court has erred in holding that the defendant is entitled to get the protection under the abovesaid Act, without there being any application filed before the authorised officer (viz., Revenue Divisional Officer) under Section 3(b) of the Act. According to the learned counsel for the appellant, as per Rule 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of ownership) Rules, 1972, an application for settlement of dispute under Section 4 of the Act ought to have been made to the Authorised Officer, having jurisdiction over the area within a period of two months, date on which, the dispute arose. Referring to the date of Ex.A6, Legal Notice, dated 14.07.1990, he submitted that even after acknowledging Ex.P6, legal notice from the plaintiff, the defendant had not taken any steps to claim shelter under the Act and therefore, the lower appellate Court is not justified in deciding the issue regarding Section 3 of the Act, especially when Act 40/71 excludes the jurisdiction of the Civil Court from deciding that question. 10. It is the further submission of the learned counsel for the appellant that in the absence of any evidence to prove that 200 kalams of paddy were treated as sale consideration for the house under occupation of the defendant and having regard to the fact that there is a failure on the part of the defendant to establish that he had allowed the plaintiff/appellant to forfeit 10 kalams of paddy in 1990, in order to confer ownership of the suit property, the lower appellate Court has miserably failed to appreciate the evidence in proper perspective and erroneously dismissed the suit. 11. Referring to the Explanation I to Section 2(8) of the Act and placing reliance on the decisions of this Court in T.K.Narayana Pillai v. Naganatha reported in AIR 1981 Mad. 196, Marappa Gounder v. the District Revenue Officer, Periyar District at Erode and others reported in 2002 (3) LW 190 and Chandira v. Arulmighu Poigaikarai Mariamman Temple, Avoor, reported in 2001 (1) MLJ 528, learned counsel for the plaintiff/appellant submitted that to claim the benefits under the Act, the person, who is said to be in occupation of the site, or any dwelling house or hut has to prove that he had contributed his own manual labour to cultivate the agricultural land or there was any contribution from his family members, as per Section 2(3) of the Act. He further submitted that the presumption raised in the explanation is of no avail to the defendant, who claims to be an agriculturist, merely on the basis of a contention that the site in occupation is a "Kudiyiruppu". 12. Learned counsel for the plaintiff/appellant further submitted that the lower appellate Court has failed to consider that the defendant has not produced any extract from the Adangal Register to prove that he has been cultivating the lands owned by the plaintiff, by contributing his own manual labour or any contribution of manual labour from any member of his family. According to the learned counsel, even assuming that the defendant is an agriculturist, entitled to the benefits of the Act, he cannot merely claim the benefits of the Act, unless he applies to the Authorised Officer within two months from the date on which, the dispute arose as contemplated in Rule 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Rules, 1972. 13. Referring to the defence put up by the defendant and the documentary evidence, learned counsel for the plaintiff further submitted that except the solitary averment in the written statement that the defendant is an agriculturist and that the said house, in which he was put in possession is a "Kudiyiruppu", there is not even a suggestion in the oral evidence let in by the defendant to the effect that he is entitled to the protection of the Act. Though the defendant had claimed that he had paid the electricity charges, all the exhibits, Ex.B1 to B37, produced by him, were in the name of the plaintiff and therefore, in the absence of any materials to prove that the defendant falls within the definition of "agriculturist", he is not entitled to the benefits of the statute. 14. Per contra, Mr.Suryanarayanan, learned counsel for the defendant submitted that though the defendant had initially joined as "Kariyastar" to supervise the agricultural land, he was put in possession of the "Kudiyuruppu" and was promised 80 kalams of paddy every year. He further submitted that though 80 kalams of paddy was fixed as salary, the plaintiff paid only 70 kalams of paddy every year and 10 kalams were deducted for the price of the suit property. Inviting the attention of this Court to the averments in the written statement and oral evidence, he submitted that the defendant was engaged in agricultural activities and he had also let in oral evidence to establish that he had cultivated agricultural land by contribution of his own manual labour. 15. According to learned counsel for the defendant, the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 does not stipulate any mandatory condition that an agriculturist can claim the benefits under the Act, only if he is a tenant or licensee in respect of the site and it is enough to prove that as an agriculturist, he is in occupation of "Kudiyiruppu" as per the definition given in Section 2(3) of the Act. He further submitted that when the defendant had established that he was cultivating agricultural lands belonging to the temple, he had satisfied the definition of "agriculturist" under the Act and therefore, entitled to the benefits of Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971, no matter whether he cultivates the land owned by the plaintiff or not. 16. In sum and substance, learned counsel for the defendant submitted that it is sufficient that a person, who employs his manual labour or if the manual labour of any member of the family is employed, in cultivation of an agricultural land, then he is entitled to the protection of the Act. Placing reliance on a decision of this Court in Ganesan v. K.Madurai Achari and another reported in 1979 (1) MLJ 29, with reference to the prayer in the present suit, he submitted that the suit instituted by the plaintiff is for ejectment or for possession, and if the Civil Court finds that the site is a Kudiyuruppu, then it cannot go into the question, as to whether the tenant is entitled to the benefits of the Act or whether he is liable to be evicted under Section 3(3) of the Act. According to him, in the absence of any application to the Authorised Officer under Section 5 of the Act by the plaintiff, the suit itself is not maintainable and therefore, the dismissal of the same is proper. For the above said reasons, he prayed for dismissal of the second appeal, stating that there is no question of law involved in the appeal. 17. Heard the learned counsel for the parties and perused the materials available on record. 18. Before adjudicating the substantial questions of law, it is relevant to extract few provisions of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971, which is intended to provide for conferment of ownership rights on occupation (Kudiyiruppu) in the State of Tamil Nadu. The act came into force on and from 19th June 1971. Section 2(1) defines the word "agricultural labourer", which means a person whose principal means of livelihood is the income he gets as wages for his manual labour on agricultural land but does not include a plantation labourer. 19. Section 2(2) defines the word "agricultural land" and it reads as follows: "any land used for any of the following purposes, namely:- (a) horticulture; (b) the raising of crops, grass or garden produce; (c) grazing; (d) the raising of manure crops; (e) dairy farming; (f) poultry farming; (g) livestock breeding; (h) growing of trees; and (i) includes any land used for any purpose subservient to the above purposes, any forest land, pasture land, [.........] orchard and tope, but (ii) does not include plantation or land held for ancillary purposes of plantation or house-site or land used exclusively for non-agricultural purposes." 20. Section 2(3) defines "agriculturist" to mean "a person who cultivates agricultural land by the contribution of his own manual labour or of the manual labour of any member of his family. As per Section 2(4), "authorised officer" means any Revenue Officer not below the rank of Tahsildar authorized by the Government by notification to exercise the powers conferred on, and discharge the duties imposed upon, the authorized officer under this Act, for such area as may be specified in the notification. Section 2(8) defines the word, "kudiyiruppu" to mean "the site of any dwelling house or hut occupied, either as tenant or as licensee, by any agriculturist or agricultural labourer and includes such other area adjacent to the dwelling house or hut as may be necessary for the convenient enjoyment of such dwelling house or hut." Explanation-I to above sub-section reads as follows: "It shall be presumed that any person occupying the kudiyiruppu is an agricultural labourer or an agriculturist, until the contrary is proved" 21. Section 3 of the Act states that any agriculturist or agricultural labourer, who was occupying any kudiyiruppu on the 19th June, 1971, either as tenant or as licensee shall, with effect from the date of the commencement of this Act, be the owner of such kudiyiruppu and such kudiyiruppu shall vest in him absolutely free from all encumbrances. Section 3(b) of the Act empowers the authorised officer to decide whether a person is an agriculturist or agricultural labourer, etc., and it reads as follows: "3(b) Authorised officer to decide whether a person is an agriculturist or agricultural labourer, etc,- (1) If any question arises- (a) whether any person is an agriculturist or an agricultural labourer, or (b) whether any land is an agricultural land, or (c) whether any site is a kudiyiruppu, or (d) whether any area adjacent to a dwelling house or hut is necessary for the convenient enjoyment of such dwelling house or hut; such question shall be decided by the authorised officer, (2) In deciding any question under sub-section (1), the authorised officer shall follow such procedure as may be prescribed. 22. Section 4 confers authority on the Authorised Officer to decide the dispute as to whether any agriculturist or agricultural labourer was occupying any Kudiyiruppu as on 19.06.1971 for the purpose of Section 3 of the Act. Section 5 of the Act enables any person aggrieved by any decision or order of the authorised officer under section 3-A or section 3-B or section 4 or section 15-A may, within such period as may be prescribed, appeal to the District Collector or such officer as may be specified by the Government in this behalf. 23. Section 23 speaks about the bar of jurisdiction of Civil Courts and it reads as follows: "Save as otherwise expressly provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Government are, 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." 24. With these statutory background, let me now examine the submissions of the parties. The defendant has claimed the benefits of the ownership rights on two grounds, viz., (1) Though he was initially inducted as "Kariyastar" on payment of 80 kalams of paddy every year and put in possession of the tiled house (Kudiyiruppu), later on, the remuneration for the year ending 31st March 1990 was stopped. The plaintiff paid only 70 kalams of paddy from 1971 onwards and that 10 kalams each year set apart for the price of the house was retained. To support this contention, excepting the oral evidence of the defendant, there is no other supporting oral or documentary evidence. The electricity bills produced by the defendant in Ex.B1 to B37 were found to be in the name of the plaintiff and therefore, the trial Court has categorically found that there is no absolutely proof, that the defendant had paid 200 kalams of paddy towards the sale consideration of the tiled house, which was in occupation of the plaintiff. (2) The defendant was permitted as a licencee to reside in the tiled house and being an agriculturist, engaged in cultivating the lands belonging to a temple, he is entitled to the benefits of the Act. 25. By observing that the defendant had let in sufficient oral evidence to prove that he is cultivating lands, belonging to the temple on lease, as an agriculturist and that he was permitted to reside as a licencee, the lower appellate Court held that the defendant is entitled to the benefits of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971. Such a finding is contrary to the very object of the statutory provision, as held in T.K.Narayana Pillai v. Naganatha reported in AIR 1981 Mad. 196. In the above reported case, the defendant had not contended in his written statement that either he or any member of his family was cultivating the agricultural land, by contribution of his own labour. Like in the present case, the defendant therein merely contended that he was an agriculturist and entitled to the benefits of the Act. There was no documentary evidence. 26. While analysing the evidence in the above reported case, this Court, at Paragraphs 9 and 10 held as follows: "9. The defendant has not produced any extract from the Adangal register to prove that he has been cultivating any land, or his son by contributing his labour has been cultivating any land...... 10. Even assuming that the defendant is an agriculturist entitled to the benefits of the Act, he cannot claim the benefits of the Act, because he has not applied to the Authorised Officer within a period of two months from the date on which the dispute arose for the settlement of the dispute under Section 4 as contemplated in Rule 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1972, framed in exercise of the powers conferred by Section 27 of the Act. If he had made such an application, the plaintiff would be entitled to the amount determined by the Authorised Officer as compensation payable to him. The defendant cannot apply after the lapse of a period of two months from the date on which the dispute arose, unless the delay is condoned by the Authorised Officer. The defendant has not yet applied to the Authorised Officer for the settlement of the dispute under Section 4 of the Act. He cannot have the best of both the worlds, viz., Claim the benefits of the Act and also refuse to pay the compensation by merely not applying under Rule 3 of the Authorised Officer for the settlement of the dispute under Section 4. In view of the discussion above, I find that the defendant is not an agriculturist, that even if he is an agriculturist, he is not entitled to the benefits of the Act and that even if he is entitled to the benefits of the Act, he cannot claim the benefits now because he has not applied to the Authorised Officer within two months from the date on which the dispute arose, viz., 22.07.1974, when a notice was issued by the plaintiff to him determining his tenancy and calling upon him to vacate." 27. While dealing with the definition of the word "Kudiyiruppu", as to whether, it refers to the site, in which, the dwelling house or hut is located, this Court, at Paragraph 6 of the very same judgment, held as follows: "To hold that the site of any dwelling house or hut is a Kudiyiruppu, one has to ascertain whether the occupant, either as a tenant or a licensee, is an agriculturist, or agricultural labourer. No presumption that any person is an agriculturist or an agricultural labourer can be made till the site of the dwelling house or hut in his occupation is found to be a kudiyiruppu. Therefore, the presumption raised by the explanation is of no avail to any party who claims to be an agriculturist merely on the basis of a contention that the site in his occupation is a Kudiyiruppu. An agriculturist can claim that the site of the dwelling house or hut in his occupation is a Kudiyiruppu only if he is a tenant or a licenceee in respect of the site alone." 28. While dealing with the object of the Act, this Court in Chandira v. Arulmighu Poigaikarai Mariamman Temple, Avoor, reported in 2001 (1) MLJ 528, at Paragraph 6, held that Section 3 of the Act 40 of 1971 contemplates to provide conferment of ownership right on the occupants of Kudiyiruppu of any agriculturist or agricultural labourer who is in occupying any Kudiyiruppu either as tenant or as licensee. By virtue of this provision, the occupant will become the owner of such Kudiyiruppu and such Kudiyiruppu shall vests in him absolutely from all encumbrances. 29. Though the defendant had stated in his oral evidence that the house in his occupation is a "Kudiyiruppu", he has not let in any documentary evidence to