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1965 DIGILAW 249 (MAD)

Rasan Muthirian v. Periaswami Muthirian

1965-08-13

T.VENKATADRI

body1965
Order:- This appeal arises out of a suit filed by the respondent herein fora permanent injunction restraining the appellants-defendants from interfering with his possession and enjoyment of the plaint property which consists of three items of nanja lands. The case of the plaintiff-respondent is that he had taken a lease of the suit property from the then owner, Hanumantha Rao, in the year 1941 and continued to be in possession under Hanumantha Rao, and after his death, under his son Narayana Rao. He alleged that he paid rent up-to-date and the defendants-appellants claiming to have purchased the suit property from Narayana Rao attempted to dispossess him without any manner of right, with the result he had to come to Court claiming protection under the Cultivating Tenants Protection Act.The defence to the suit is that, the respondent-plaintiff was previously a tenant of the suit property, that he surrendered possession in favour of the defendants in the year 1959 and that thereafter he ceased to have any manner of right. The further contention of the defendants-appellants is that the plaintiff owned about 20 acres, besides cultivating others’ lands on lease, that on the whole he was cultivating about 35 acres of land and that as such he was not a cultivating tenant entitled to the protection under the Act.On these pleadings the parties went to trial. The trial Court gave a finding that the respondent-plaintiff was cultivating more than 6-2/3 acres and as such he was not a cultivating tenant as per the provisions of Act XXV of 1955 and Act XIV of 1956. It also further found that the plaintiff was not in possession of the suit property on the date of the suit as he surrendered possession of the suit property to the first defendant. In the result he dismissed the suit.The plaintiff-respondent preferred an appeal. The learned District Judge on appeal, reversed the finding of the trial Court. He found that the plaintiff-respondent did not surrender possession of the suit property as alleged by the defendants and that he was in possession of the suit property on the date of suit after the expiry of the lease and as such he was entitled to protect his possession until evicted in due course of law. He found that the plaintiff-respondent did not surrender possession of the suit property as alleged by the defendants and that he was in possession of the suit property on the date of suit after the expiry of the lease and as such he was entitled to protect his possession until evicted in due course of law. The learned District Judge observed that the learned District Munsif had confused both Cultivating Tenants Protection Act and Fair Rent Act and wrongly decided that the plaintiff was not a cultivating tenant. The lower-appellate Court decreed the suit. It is against this judgment and decree that the defendants have preferred this Second Appeal.Learned Counsel for the appellants contended before me that the lower appellate Court committeed an error in coming to the conclusion that the limit of 6-2/3 acres mentioned in the Cultivating Tenants Protection Act for the purpose of restoration of possession by a tenant under section 4 of the Act would apply only to a case where a tenant came to the Court for restoration of possession after he was dispossessed by the landlord. Here there is some confusion in the mind of the learned District Judge himself.The plaintiff, who comes to Court for an injunction, must prove that he is a cultivating tenant, and he has to satisfy the tests laid down in the Act. It is conceded by the learned Counsel for the appellants-defendants that the plaintiff-respondent is cultivating the suit lands from 1941. The appellant’s case is that, when they purchased the suit property, the plaintiff-tenant surrendered possession of the suit property to the then landlord Narayana Rao. The trial Court gave a finding that there was surrender by the tenant to the landlord. But that finding was reversed by the lower appellate Court. The learned Counsel for the appellants now contends before me that when the tenant comes to the civil Court for an injunction simpliciter restraining the landlord from interfering with his possession of the suit property he wants to get the benefit under the Cultivating Tenant Protection Act. When the Court decides that he is a cultivating tenants and in effect he wants possession of the suit property claiming benefits of the Cultivating Tenants Protection Act then the civil Court has no jurisdiction to try the suit. When the Court decides that he is a cultivating tenants and in effect he wants possession of the suit property claiming benefits of the Cultivating Tenants Protection Act then the civil Court has no jurisdiction to try the suit. Under section 4 of Cultivating Tenants Protection Act, when a tenant comes to the Revenue Court to be put in possession of the property on the ground that he was dispossessed, he should satisfy that he is not in possession of more than 6-2/3 acres of land. Under section 4-A the landlord shall be entitled to resume possession from any cultivating tenant for purposes of personal cultivation of lands not exceeding one half of the extent of lands leased out to the cultivating tenant. Reading both sections 4 and 4-A, I am of the opinion that whether the landlord or tenant wants to get possession of the leased property they should satisfy whether the extent is more than 6-2/3 acres or less than 6-2/3 acres. As there is difference in the finding with regard to the extent of the property possessed by the respondent herein, I do not want to give any finding in this matter. Therefore, the proper thing would be to direct the learned District Munsif to transfer the suit to the Revenue Court for giving a finding whether the respondent is in possession of more than 6-2/3 acres of land. In the result, the judgment of the lower appellate Court is set aside and I direct the learned District Munsif, Tiruchirappalli, to transfer the suit to the Revenue Court for giving a finding mentioned above. The Revenue Court will submit the finding to the civil Court (Dt. Munsif’s Court). After the finding is received, the civil Court till dispose of the suit according to law and on merits. There will be no order as to costs. K.S. ---- Appeal allowed and case remanded.