IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.12.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.902/2003 1.V.Dharmaraj (Died) 2.Kamalambal 3.D.Mariappan 4.D.Muthulakshmi 5.D.Rajakumar 6.D.Anandan (Appellants 2 to 5 brought on record as LRs of the sole Appellant as per order of this Court dated 4.3.2010 made in CMp.nOS.391 TO 393 OF 2010 in S.A.902 of 2003) ..Appellants/Respondents/Defendants Vs 1.Jaffar Sadiq Rep by his General Power of Attorney FAthima Gani) 2.Umar Farook Respondents/Appellants/Plaintiffs Prayer:- This Second Appeal is filed against the Judgement and Decree dated 28.2.2003 passed in AS.No.17/2000 by the learned Additional District Judge at Karaikal, reversing the Judgement and Decree dated 30.6.2000 passed in OS.No.284/1997 by the learned Principal District Munsif at Karaikal. For Appellants : Mrs.R.T.Shyamala For Respondents : Mr.A.Muthukumar JUDGEMENT The Respondents herein/Plaintiffs have filed the suit in OS.No.284/1997 to pass a Judgement and Decree for recovery of a sum of Rs.440/- from the 1st Appellant herein/the Defendant and to direct the Defendant to vacate and deliver vacant possession of the suit property after dismantling the superstructure and to direct the Defendant to pay a sum of Rs.50/- per month as damages to the Plaintiffs from 1.8.97 till the recovery of possession of the suit property and for costs. 2. The case of the Plaintiff as set out in the plaint is as follows:- https://hcservices.ecourts.gov.in/hcservices/ a. The Defendant is the lessee under the Plaintiffs in respect of their Kudiyiruppu Manaikat descried in the suit schedule by putting up a thatched hut. The lease is a month to month commencing from the first day of every English Calendar Month. The monthly rent is Rs.10 and he has to pay the same on or before 5th day of every English Calendar Month. From the month of October 1996, the Defendant failed to pay the rent. b. On 11.12.1996, the Plaintiffs issued a demand cum quit notice to the Defendant and thereby terminated the lease. After receiving the notice, reply was sent by the Defendant on 26.12.1996. The Defendant has stated that he was not a tenant, but a licensee. The Defendant is estopped from denying the title of the Plaintiffs and claiming ownership over the suit property. The Defendant has not paid the arrears of rents. After the termination of the lease, the Defendant became a trespasser of the suit property. Therefore, he is liable to pay damages of Rs.50/- per month. In such circumstances, the suit has been filed. 3. In the Written Statement filed by the Defendant, it is averred as follows:- a. In the year 1942, the possession of the suit property was with the predecessors of the Defendant. The father of the Defendant came to occupy the property in a small house. He was allowed to enjoy the property as a licensee. In the year 1990, the mud walls were removed and pucca brick built walls have been raised. This court has no jurisdiction to try the suit. Since the Plaintiff has permitted the Defendant to put up a valuable construction, the Plaintiffs are estopped from making a demand for demolition on the basis of equitable estoppel. The Plaintiffs should pay the value of the existing structure or compensation of the value of the building available on the land. The notice issued by the Plaintiffs is a defective one. No landlord is competent to terminate the tenancy against the permanent tenant. The Defendant is willing and prepared to pay the arrears of rent. In such circumstances, the suit is liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to A7 were marked and the Plaintiff examined the 2nd Plaintiff as PW.1. On behalf of the Defendant, Ex.B1 to B5 were marked and DW.1 to DW.4 were examined. 5. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit and the appeal filed as against the same by the Plaintiffs was allowed, setting aside the Judgement and Decree of the Trial Court. As against the same, this Second Appeal has been filed. 6. This Second Appeal has been entertained on the following substantial questions of law:- (a) Whether the Civil Court (first appellate court) is having the jurisdiction to decide the issue of Kudiyiruppu under https://hcservices.ecourts.gov.in/hcservices/ the Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership) Act 1973 (Act No.8 of 1974), especially already the petition for Kudiyiruppu is pending before the Authorised Officer and the same is clearly proved by the Appellant herein by examining the Tahsildar, as DW.4 and marking the document Ex.B5? (b)Whether the first appellate court is right in reversing the judgement of the Trial Court by holding that there was a landlord and tenant relationship, especially, when no document was filed on the side of the Plaintiff to prove his ownership? (c)Whether the first appellate court is correct in reversing the judgement of the Trial Court by holding that the suit was constituted properly, especially there was absolutely no discussion in the judgement of the first appellate court judgement? (d)Whether the suit is maintainable as framed without the prayer for declaration of title and payment of necessary court fees? (e)Whether the termination notice issued by the Plaintiff is valid in law under Section 106 of the Transfer of Property Act when there is no relationship of landlord and tenant relationship existed between the parties? (f)Whether the appellant is entitled for acquiescence? 7. This court heard the submissions made by the learned counsel on either side and also perused the material on record and the impugned judgements of the courts below. 8. Ms.R.T.Shayamala, the learned counsel for the Appellants contended that the Civil Court has no jurisdiction to decide the issue of Kudiyiruppu under the Provisions of Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1973 (herein after referred to as the Act 8 of 1974), especially when the proceedings are pending before the Authorised Officer. The learned counsel for the Appellants further contended that that the landlord-tenant relationship between the Respondents/ plaintiffs and the 1st Appellant was not proved by the Respondents and without appreciating the oral and documentary evidence in a right manner, the lower Appellate Court reversed the findings of the Trial Court. 9. On the other hand, Mr.Muthukmar, the learned counsel for the Respondents contended that the 1st Appellant/Defendant is not an agriculturist within the meaning of Sub Section 3 of Section 3 of the Act 8 of 1974 and as such, he is not entitled to invoke the benefits of the said Act. Further, he would submit that the 1st Appellant/Defendant has admitted the tenancy and payment of rents for the period from 1991 to 1996 and in view of such admission, the Plaintiffs need not prove the relationship of landlord and the tenant. Further, he pointed out that it was not the case of the Defendant before the authority concerned that his father was in possession. The learned counsel further contended that as there https://hcservices.ecourts.gov.in/hcservices/ is no material to prove permanent tenancy pleaded by the Defendant, the suit is maintainable. 10. The learned counsel for the Appellants contended that the landlord-tenant relationship is not proved and merely based on xerox copies of rental receipt Ex.A3 (Series), the lower Appellate Court has come to a conclusion that the landlord-tenant relationship has been proved by the Plaintiffs without appreciating the evidence in a proper perspective manner. 11. It is the case of the Respondents that the 1st Appellant/Defendant is a tenant of the Plaintiffs on a monthly rent of Rs.10/- for the Manaicut and he committed default in payment of monthly rents from October 1996. During the cross examination, the Defendant admitted the tenancy and also the payment of rent for the period from 1991 to 1996. As there is a candid admission by the Defendant, it is not necessary for the Plaintiffs to prove the landlord-tenant relationship between the Plaintiffs and the Defendant. 12. It is well settled that a party's admission is the best evidence. 13. In the case of Ramji Dayawala and Sons (P) Limited Vs. Invest Import [AIR-1981-SC-2085], the Honourable Supreme Court held that the admission unless explained furnishes the best evidence. 14. The above principle will apply with greater force in the instant case, as the Defendant even in his chief examination has admitted that he was working as a Gangman and was cultivating the lands belonging to the Railways. Further, he has admitted the tenancy and stated that he has paid rents from 1991 to 1996. These admissions are entitled to great weight. The 1st Appellant/ Defendant has failed to show that those admissions were incorrect. Therefore, I am of the considered view that the landlord-tenant relationship between the Respondents and the 1st Appellant/defendant stood proved in this case. 15. The learned counsel for the Appellants referring to Section 25 of the Act 8 of 1974, contended that the Appellant is entitled to have his rights agitated under the Act and the Civil Court's jurisdiction is barred, more particularly, when proceedings had been initiated and pending before the Authorised Officer under the Said Act. The learned counsel submitted that when the 1st Appellant was in possession of Kudiyiruppu and entitled to the benefits of the Act, the dispute was determinable only by the Authorised Officer under Section 5 of the Act and the jurisdiction of the Civil Court is barred under Section 25 of the Act. The learned counsel placed reliance on the decision of the Division Bench of this court reported in AIR-1983-Madras-86 [Kalyanasundaram Udayar Vs. Pazhaniayya Udayar] which decision has been followed in the later decision rendered in an unreported judgement dated https://hcservices.ecourts.gov.in/hcservices/ 17.6.2006 of this court in Azhagarsamy Pillai Vs. Khaja Aminudeen Hussain by its Power Agent. 16. In the decision cited supra, this court has held that since the Civil Court's jurisdiction is barred under Section 23 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, pari materia, the same as that of Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1973 (Act 8 of 1974), the question whether any agriculturist or agricultural labourer is in possession of Kudiyiruppu has necessarily to be decided by the Authorised Officer. It is relevant to point that in the decision cited supra, the findings of the court below was that the Defendant was entitled to the benefits of the Act, that is, the Plaintiff himself admitted that the Defendant was an agriculturist as per Section 3(b) of the Tamil Nadu Occupants (Protection) Kudiyiruppu Act, 1971 and regarding the question whether the Defendant who was an agriculturist was in possession of Kudiyiruppu on the relevant date, it was held that he has to approach to Authorised Officer concerned for a decision on that point and cannot go before a Civil Court. The facts of this case are clearly distinguishable from the facts of the case in those decisions cited supra. 17. The Defendant in the present case admittedly was working as a 'Gangman' in the Railways and he was in possession of 3 ares and 15 cents. In his cross examination, the Defendant while he was examined as DW.1 admitted that he was cultivating the lands lying in Puduthurai and has not filed any documents to show that he was cultivating the lands subsequent to the period 5.7.1987. 18. Sub Section 3 of Section 3 of the Act 8/1974 defines 'agriculturist' as follows:- ""agriculturist" means a person who cultivates agricultural land by the contribution of his own manual labourer or of the manual labourer of any member of his family." 19. In the present case, the Defendant was working as a gangman in the Railways and it cannot be said that he was cultivating the lands by contributing his own manual labourer. It is neither his case that he cultivated the lands by contributing manual labourer of any member of his family. It is also not his case that he was eking his livelihood from the income he got as wages for his manual labourer on agricultural land. In the said circumstances, the 1st Appellant/Defendant cannot come within the definition of either as an "agriculturist" or as an "agricultural labourer" as defined in sub section 3 of Section 3 of the Act 8 of 1974. 20. That apart, a conjoint reading of the definition of the words 'agricultural labourer', 'agriculturist', 'Kudiyiruppu' and 'tenant' will make it clear that there must be a land belonging to the landlord to be enjoyed by any person as a tenant on payment of https://hcservices.ecourts.gov.in/hcservices/ rent and such a person must cultivate the agricultural land of that person and then only such person can claim the site of any dwelling house or hut occupied by him in the very same agricultural land as Kudiyiruppu. Therefore, it is clear that the site of dwelling house occupied by the tenant cannot disassociate with the agricultural land of the very same landlord. In other words, for the purpose of understanding the definition of "Kudiyiruppu", Section 3(7) of the Act 8 of 1974 speaks about the enjoyment of the very same land as agricultural land of the very same landlord. If the tenant is cultivating the agricultural land of some other person somewhere else, then on that basis he cannot claim the benefits of owning the site of dwelling house as Kudiyiruppu. 21. At this juncture, it is relevant to point to the evidence of DW.1. In his cross examination, he has stated as follows:- "1959 Kjy; 1993 tiu uapy;ntf;F brhe;jkhd epyj;ij gaph; bra;J tUfpnwd;/ ehd; FoapUf;Fk; kid cilahd;Fsk; g [spa';bfhl;il rhiyapy; cs;sJ/ ,jd; tp!;j Puzk; 3 Vh; 15 rhe;jpah; MFk;/ ,e;j kidapd; T.S.No.17 ehd; FoapUf;Fk; kidf;F thjpjhd; brhe;jf ;fhuh;/ " Thus, the Defendant has admitted that he only was cultivating the lands belonging to the Railways. Thus, it is clear from his evidence that the lands he cultivated and the house occupied him are different and not the same. The mere occupation of a dwelling house by the Defendant herein without cultivation of the agricultural land belonging to the Plaintiffs will not give him a right to claim benefits of the Act. 22. The Division Bench of this court in an unreported judgement rendered in the case of Kasinathan Asari Vs. Vaithyalinga Mudaliar (died) and 3 others in SA.No.912/1987 held that the Civil Court has got a jurisdiction to decide the incidental questions. Further, it held that when the Defendant who is not a Rural Artisan and not being an occupant of Kudiyiruppu, the question of Civil Court's jurisdiction also will not arise for consideration. It is relevant to note that the provisions of Tamil Nadu Rural Artisans (Conferment of Ownership) Act Kudiyiruppu Act, 1976 is pari materia the same as that of the present Act 8 of 1974. 23. Another significant factor in this case is that proviso to Section 4 of the Act 8 of 1974 states that the extent which shall so vest in such agriculturist or agricultural labourer shall not exceed three ares in rural areas and two ares in urban areas. But, admittedly in the instant case the Appellant is in occupation of more than 3 ares and therefore, his occupation cannot at all be considered as Kudiyiruppu as stated in Section 4 of the Act 8 of 1974. 24. In view of the reasons stated above, I am of the considered view that the Civil Court can incidentally go into the https://hcservices.ecourts.gov.in/hcservices/ question as to whether the 1st Appellant/Defendant is an agriculturist within the definition of Section 3(3) of Act 8 of 1974 and entitled to the benefit under the Act. 25. The first appellate court after discussing the evidence both oral and documentary came to the conclusion that the Defendant is neither an agriculturist nor an agricultural labourer and therefore, not entitled to any protection under the Act 8 of 1974. I do not find any illegality or perversity in the said findings of the first appellate court. The substantial questions of law are answered against the Appellant. 26. In the result, this Second Appeal is dismissed, confirming the Judgement and Decree of the first appellate court. However, in the circumstances of the case, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1.The Additional District Judge at Karaikal 2.The Principal District Munsif at Karaikal 3.The Record Keeper, VR Section, High Court, Madras 1 cc To Mrs.R.T.Shymala, Advocate, SR.88316 1 cc To Mr.A.Muthukumar, Advocate, SR.88112 SA.No.902/2003 TAM(CO) sra 06/05/2011 https://hcservices.ecourts.gov.in/hcservices/