N. Sreedharan Thampi v. Velayudhan Pillai — 1983 DIGILAW 245 (MAD)

Judgement ORDER :- This is a civil revision petition filed under S.115 of the Civil P. C. by the plaintiffs-petitioners herein against the order dated 16th Dec. 1981 in E. P. No. 256 of 1981 in O.S. No. 259 of 1960 on the file of the court of the learned District Munsif, Kuzhithurai, dismissing the petition filed cinder O.21, R.35. C. P. C. holding that he has no jurisdiction to execute the decree in view of the Tamil Nadu Cultivating Tenants Protection Act and as such, the said Petition is not maintainable. 2. The plaintiffs had filed the petition before the lower court under O.21, R.35. C. P. C. for delivery of the Property. According to them the decree was passed on 13-3-1961, that the relief of recovery of possession could not be obtained by reason of statutory stay under S.4 of the Holding's (Stay of Execution Proceedings) Act VIII of 1950 T. C. which was in force on the date of passing of the decree, that the operation of the Act was being extended from time to time, that the petitioner could not execute the decree for recovery of Possession from 24-9-1977. that the Tamil Nadu Cultivating Tenants Protection Act was extended to Kannyakumari District as per S.4 of Tamil Nadu Act IV of 1975 w. e. f. 8-3-1976, that if the T. C. Act VIII of 1950 is considered to be the corresponding law which was in force in that area at that time, then that law stands repealed under S.5 of the Act, that the defendants committed default in payment of rent payable for the year 1967, that they also committed default in the deposit of rent for the year 1971 and then in 1974 and that with the default committed in the year 1967 itself, they forfeited the right conferred on them by T. C. Act. VIII of 1950. 3-4. On the other hand, the second defendant filed a counter stating that the petition is not maintainable, that he is a cultivating tenant and so the civil court has no jurisdiction to execute the decree that they are not in arrears of rent, that the rent is Rs. VIII of 1950. 3-4. On the other hand, the second defendant filed a counter stating that the petition is not maintainable, that he is a cultivating tenant and so the civil court has no jurisdiction to execute the decree that they are not in arrears of rent, that the rent is Rs. 5.33 per year and the same was deposited in court, that there are no arrears whatsoever that the execution petition is barred by limitation and that the defendants are cultivating tenants and are agriculturists and prayed for dismissal of the petition. 5. On the point whether the petition has to be allowed. the learned District Munsif observed that there was no objection on the side of the petitioners with regard to the orders passed by the. High Court in A. A. O. 24 of 1970 on 12-9-1970 and the same would operate as res judicata. The learned Principal District Munsif further observed that even if the defendants had committed default in the payment of rent, since the defendants are cultivating tenants he has no jurisdiction to execute the decree in view of he Tamil Nadu Cultivating Tenants Protection Act. Therefore the learned Principal District Munsif directed the revision petitioners herein to move the concerned Revenue Divisional officer for relief of recovery of possession. Aggrieved by the above decision of the Principal District Munsif. the plaintiffs-revision petitioners herein have come forward with this revision petition contending that S.6 (d) of Tamil Nadu Act IV of 1976 enables the plaintiffs, revision petitioners herein to execute the decree in O.S. No. 259 of 1960 before the Civil Court itself and the plaintiffs need not be directed to have the enquiry regarding execution of the decree before the Revenue Divisional Officer. The learned counsel for the revision petitioners Mr. Srikumaran Nair further submits that in order to have the benefit of the Cultivating Tenants Protection Act which has been extended to Kannykumari District from 8-3-1976. the respondents herein must also prove that they are entitled to the benefits under the said Act. In other words he submits that the benefits of the decree obtained by the revision petitioners herein are not affected by virtue of provisions under S.6 (d) of the Tamil Nadu Act 4 of 1976 and they can have their remedy before the Civil Court itself. In other words he submits that the benefits of the decree obtained by the revision petitioners herein are not affected by virtue of provisions under S.6 (d) of the Tamil Nadu Act 4 of 1976 and they can have their remedy before the Civil Court itself. On the other hand Miss O.K. Sridevi, learned counsel for the respondents herein refers to the provisions under S.3 of the Cultivating Tenants Protection Act 1955 (Tamil Nadu Act 25 of 1955) which Provides that no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his landlord, whether in execution. of a decree or order of a Court or otherwise subject to sub-sections that are available under the said Section. Miss O.K. Sridevi, learned counsel for the respondents further points out the provision under S.3 (4) (a) and (b) which reads as follows: "Every landlord seeking to evict a cultivating tenant falling under sub-sec. (2) shall, whether or not there is an order or decree of a court for the eviction of such cultivating tenant make an application to the Revenue Divisional Officer and such application shall bear a court-fee stamp of one rupee. (b) On receipt of such application, the Revenue Divisional Officer shall after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations. hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under Cl. (a) or Cl. (aa) of sub-sec. (2) in which the tenant had not availed of the provisions contained in sub-sec. (3), the Revenue Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct. If the cultivating tenant deposits the sum as directed. he shall be deemed to have paid the rent under subsec. (3) (b). If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction. If the cultivating tenant deposits the sum as directed. he shall be deemed to have paid the rent under subsec. (3) (b). If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction. Provided that the Revenue Divisional Officer shall not direct the cultivating tenant to deposit such arrears of rent as have become time barred under any law of limitation for the time being in force" By referring to Cl. (4) of S.3 of the Cultivating Tenants Protection Act, Miss O.K. Sridevi, contends that S.6 (d) of the Tamil Nadu Act 4 of 1976 is not applicable to the present proceedings before the lower court. 6. The plaintiffs in the instant case have sought execution of the decree and prayed for delivery of property. In that, it was contended by the revision petitioner herein that the respondents herein are not cultivating tenants. On the other hand, the case of the respondents is that there are no arrears of rent. It is also contended by the respondents that similar E. P. was filed earlier and it was dismissed on 22-7-1966, that there was also art appeal in C.M.A. 109 of 1967 which was dismissed on 7-8-67 and that the appeal in A.A.O.24 of 1970 was also dismissed on 12-9-1970. When the provisions of sec. 3 (4) of the Cultivating Tenants' Protection Act are so clear that the landlord can go only before the Revenue Divisional Officer to get relief sought for by him, it cannot be held that the civil court can execute the decree and Section 6 (d) of the Tamil Nadu Act 4 of 1976 cannot be interpreted as one ousting the jurisdiction conferred on the court of the Revenue Divisional Officer and vesting the same only with the Civil Court especially especially when the provisions under Sec. 3 (4) are so specific and clear. 7. The learned counsel for the revision petitioners in support of their contention refers to the decision of the Supreme Court reported in Chinnamuthu Grounder v. Perumal Chettiar ((1970) 2 Mad LJ (SC) 114) : ( AIR 1970 SC 1197 ) for, the following proposition (at 1). 7. The learned counsel for the revision petitioners in support of their contention refers to the decision of the Supreme Court reported in Chinnamuthu Grounder v. Perumal Chettiar ((1970) 2 Mad LJ (SC) 114) : ( AIR 1970 SC 1197 ) for, the following proposition (at 1). 1198) :- "The clear import of Sec. 6-A is that any suit before any Civil Court for possession, if the defendant proves not only that he is a cultivating tenant but also he is entitled to the benefits of the Act the Civil Court is bound to transfer it to the Revenue Divisional Officer and cannot proceed to try and dispose of it itself. In the present case, it has been found by the High Court as also by the trial Court that the appellants had wilfully denied the title of the respondent who is the landlord. They thus became entitled to the benefits of the Act. Consequently the civil court had jurisdiction to proceed with the trial and there was no question of its transferring the suit to the Revenue Divisional Offer. There has been a consistent course of decisions of the Madras High Court that in order to attract the applicability of Sec. 6-A both the conditions must co-exist namely, the defendant must be a cultivating tenant within the meaning of the Act and he should be entitled to the benefits of the Act. If both these conditions are not satisfied no question of any transfer under Sec. 6-A will arise. The Civil Court may have to determine for the purpose of coming to the conclusion whether a suit has to be transferred under Sec. 6-A, certain questions which are within the jurisdiction of the Revenue Court under the Act. But that cannot affect the interpretation of the words "Cultivating tenant entitled to the benefits of the Act." 8. The decisions of the Supreme Court referred to by the learned counsel for the revision petitioners can be distinguished so far as the facts of the present case before us are concerned. In the caste cited above. the defendant had wilfully denied the title of the respondent who was the landlord. But in the instant case. there is no denial of title of the landlords. revision petitioners herein. In this regard, Miss O.K. Sridevi points out that Ex. P-1 sale deed dt. In the caste cited above. the defendant had wilfully denied the title of the respondent who was the landlord. But in the instant case. there is no denial of title of the landlords. revision petitioners herein. In this regard, Miss O.K. Sridevi points out that Ex. P-1 sale deed dt. 15-7-1981 executed by Velayudhan Pillai in favour of Yenose though filed before the lower court. was not taken into consideration and according to her it is only the Revenue Divisional Officer who has to deal with the same to find out whether the same constitutes denial of title of the landlord. 9. On a careful consideration of the evidence both oral and documentary and in view of the specific provisions under Sec. 3 (4) of Tamil Nadu Act 25 of 1955, this Court finds that the learned District Munsif has correcly held that he has no jurisdiction and the matter has to be gone into only by the Revenue Divisional Officer for the relief asked for, namely, recovery of possession. Under these circumstances the order of the learned District Munsif does not call for any interference under the provisions of Section 115 of the Civil P. C. Accordingly, the civil revision petition fails and stands dismissed: but in the circumstances, without costs.