ORDER Ramalingam, J. 1. The first respondent herein filed an application in Form I under Section 4 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, Act 40 of 1971, hereinafter referred to as the Act, claiming Kudiyiruppu patta for an extent of 17' by 40' in Door No. 16, T.S. No. 1969, Thoppu Street, Kumbakonam Town. It is not in dispute that the house in question is part of a row of three houses and it being the middle portion. The first respondent was in occupation of this portion of the row houses, paying a monthly rent of Rs. 20/-. Claiming to be an agriculturist entitled to Kudiyiruppu patta, he gave evidence to the effect that he is occupying the petition mentioned house owned by the respondent (Petitioner herein) on a monthly rent of Rs. 20/-, excluding electricity charges. The Authorised Officer, by its order dated 2-1-1981, rejected this application of the first respondent herein observing that since it is admitted on both sides that the petition mentioned property is a big tiled house with three portions, owned by the petitioner herein and the three portions have been given on rent to three different persons, one portion of which is given to the first respondent herein, it is clear that the first respondent herein is only a tenant of a portion of a tiled house and not a tenant of a mere site. It was held that since according to Section 2(8) of the Act, Kudiyiruppu means the site of and dwelling house or hut occupied by an agriculturist or agricultural labourer, either as a tenant or as a licensee, the first respondent herein is not entitled to Kudiyiruppu patta because no record has been produced to show that he is tenant or a licensee of the Site. The first respondent filed an appeal before the Assistant Collector, Kumbakonam, and in the grounds of appeal, he contended that he is entitled to patta under Section 3(2) of the Act notwithstanding the fact that the superstructure belongs to the petitioner herein. In the counter filed by the petitioner herein before the Sub-Collector, a stand was taken that what was leased out to the first respondent herein was not merely a site. In the counter filed by the petitioner herein before the Sub-Collector, a stand was taken that what was leased out to the first respondent herein was not merely a site. The Sub-Collector, by his order dated 12-8-1981, allowed the appeal preferred by the first respondent herein, holding that the site has been given on rent to him for the last 20 or 25 years on a monthly rent of Rs. 20/- and that he being an agriculturist is entitled to patta under the Act. In this Writ Petition challenging the correctness of the order of the appellate authority, learned Counsel for the petitioner would submit that the application filed by the first respondent herein under the Act is wholly misconceived and not maintainable. He would submit that even if the first respondent were to be proved to be an agriculturist, nonetheless in so far as what was leased out to the first respondent was not merely a site, but site and building, the provisions of the Act are not attracted and no relief under the Act could be given to the first respondent. 2. The object of the Act is to provide for the conferment of ownership rights on occupants of kudiyiruppu in the State of Tamil Nadu. The term 'Kudiyiruppu' is defined in Section 2(6) as follows: Kudiyiruppu' mean's the site of any dwelling house or hut occupied - either as a tenant or as licensee by any agriculturist or agricultural labourer and include such other area adjacent to the dwelling house or hut as may by necessary, for the convenient enjoyment of such dwelling house or hut The word 'tenant' is defined in Section 2(7) as follows: 'tenant' means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the latter under a tenancy agreement, express or implied and includes his heirs and legal representatives. 3. A close reading of the definition of 'Kudiyiruppu' would indubitably show that it means only the site on which a dwelling house or hut might have been constructed and occupied. That site should have been let out either on terms of tenancy or on terms of licence to an agriculturist or an agricultural labourer. 3. A close reading of the definition of 'Kudiyiruppu' would indubitably show that it means only the site on which a dwelling house or hut might have been constructed and occupied. That site should have been let out either on terms of tenancy or on terms of licence to an agriculturist or an agricultural labourer. Such person would be entitled to patta under the Act not only to the site on which the building had been put up but also such other adjacent area as may be necessary for the convenient enjoyment of the house or the hut put up thereon. The act is intended to protect only such of those persons who were in occupation of the area as on 19-6-1971. The word 'area' occurring in the second Explanation to Section 2(8) would have reference only to the site leased out. The definition of a 'tenant' occurring in Section 2(11) would also indicate that only tenants of the land which has been demised are intended to be benefitted. However, Section 3(2) contemplates a slightly different situation where a person is found to be in occupation of a kudiyiruppu, viz., the site along with the superstructure built thereon, which superstructure has been built by himself or by a third person. Sub-section (2) of Section (3) contemplates the vesting of such superstructure also in the occupant absolutely free from all encumbrances. 4. Where an agriculturist who is proved to be in occupation of a site as on 19-6-1971 proves either a tenancy or a licence from the owner of the site and further proves that he is either an agriculturist or an agricultural labourer, he is certainly entitled to the benefit of the Act, if he has put up a superstructure for his dwelling. Even in cases where the land belongs to one person and the superstructure thereon had been built by a different person and the person claiming Kudiyiruppu patta is in occupation of the same, by reason of Section 3(2) of the Act, the benefit of the Act would be available to him. Even in cases where the land belongs to one person and the superstructure thereon had been built by a different person and the person claiming Kudiyiruppu patta is in occupation of the same, by reason of Section 3(2) of the Act, the benefit of the Act would be available to him. In a third situation where the land and building belongs to some other person and they compendiously have been leased out to a person who is found to have been in possession as on 19-6-1971 and is also proved to be an agriculturist or an agricultural labourer, the question is, whether such a person would be entitled to claim the benefit under the Act. 5. In this case, the third situation above mentioned has arisen. The first respondent herein in his application as well as in his grounds of appeal consistently claimed that the land and building belonged to the petitioner herein, which he has taken on rent, agreeing to pay Rs. 20/- per month, exclusive of electricity charges. Can such a person claim Patta under the Act. Suryamurthy, J., in the decision reported in Narayana Pillai v. Naganatha Iyer , held as follows: By reason of this definition the lease or licence to enjoy should have been only in respect of a site. The definition does not apply to a pucca building which an agriculturist may take on lease. Incidentally I may mention that by Explanation 1 to Sub-section (8) of Section 2 of the Act, a presumption is raised, viz., 'any person occupying the kudiyiruppu is an agricultural labourer or an agriculturist until the contrary is proved'. 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. 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 the occupation is kudiyiruppu only if he is a tenant or a licensee in respect of the site alone. 6. The learned Judge confined the application of Section 3(2) of the Act only to cases where the land belonged to a person while the superstructure had been constructed by a third person other than the lessee. 7. Mohan, J., (as he then was), in the decision reported in Manickam v. Dharmapuram Adheenam (1984) 2 M.L.J. 189 , came to the same conclusion and he observed as follows: ... A reading of the definition of 'Kudiyiruppu' makes it clear that what is contemplated by 'Kudiyiruppu' is the site of any dwelling house. Therefore, the emphasis is on the 'site' and it will not take within it a building. Originally Tamil Nadu Act XXXVIII of 1962 was passed and that Act, as the preamble itself would show, was to confer protection upon person who were in occupation of Kudiyiruppu. The Act did not deal with the superstructure at all. The superstructure came to be included only under Act XL of 1971. Only on such of those agriculturists who were in enjoyment of kudiyiruppu, this Act conferred benefit. Where the building alone was demised there is absolutely no scope for applying the Act. Nor is there any scope for applying this Tamil Nadu Act 17 of 1978. To invoke the benefits of the latter Act, he mast be a cultivating tenant with reference to the demise. He cannot be a cultivating tenant with reference to a building. 8. The above two decisions were referred and followed by Nainar Sundaram, J., in the decision reported in Rasu Pillai v. The Additional Thasildar (Kudiyiruppu), Mayiladuthurai 98 L.W. 424, and the learned Judge observed as follows: This ratio of the learned Judge has been followed by Mohan, J., in Manickam v. Dharmapuram Adheenam (1984) II M.L.J. 189. No exception could be taken to the ratio enunciated by the learned Judges of this Court who had occasion to deal with the question directly. No exception could be taken to the ratio enunciated by the learned Judges of this Court who had occasion to deal with the question directly. On my own assessment also of the provisions of the Act, I have to hold that only where an agriculturist or an agricultural labourer was in occupation of a site on a lease or a licence, express or implied, such a site could fall within the meaning of kudiyiruppu. If the demise is both of the site and the superstructure as a single unit, the matter could not be brought within the purview of the Act. Section 3(2) of the Act has got a purpose to serve, viz., where the superstructure belongs to any person other than the occupant of a kudiyiruppu, such superstructure shall also vest in the occupant as per the terms of that section. But, that purpose cannot be extended to say that even though the demise in favour of the occupant was not only of the site, but also of the superstructure as a single unit, the provisions of the Act would be attracted and the occupant could claim the rights conferred by the Act.... Ratnam, J., followed all the three decisions in the decision reported in Subba Rao, K. v. Manjappa Gounder (1988) 2 L.W. 438 , where he observed: ... The claim that the site of the dwelling house or hut is a kudiyiruppu can be put forth only if he is a tenant or a licensee in respect of the site alone. As against these consistent views, the only deviation was by V. Sethuraman, J., in the decision reported in Visalakshi v. Maruthamuthu Pillai 1981 II MLJ 293, 94 L.W. 514, where, after referring to Section 3(2) of the Act, it was held as follows: ... The words 'the superstructure belongs to any person other than such occupant' would include all those cases where the occupant is not the owner but some one else is, whether he is the owner of the site or a third party. The provision is so clear in its language that it is rather surprising that the lower appellate court came to the conclusion that Sub-section (2) of Section 3 does not apply to a case where the superstructure and the site belong to the same owner. In this case, there is no dispute that the defendant was an agriculturist. The provision is so clear in its language that it is rather surprising that the lower appellate court came to the conclusion that Sub-section (2) of Section 3 does not apply to a case where the superstructure and the site belong to the same owner. In this case, there is no dispute that the defendant was an agriculturist. On this construction of the provisions, it would follow that the defendant was entitled to rely on Section 3(2) of the Act read with Section 2(8). 9. This judgment of V. Sethuraman, J., was considered by Nainar Sundaram, J., and he would distinguish the said judgment on two grounds, firstly because it arose out of a suit for recovery of possession and secondly because the second question whether, if the building belonged to the owner of the land itself and both of them were demised together to an agriculturist, the Act would apply or not, did not come up for consideration. Mr. N. Vanchinathan, learned Counsel for the contesting respondent, would submit that Nainar Sundaram, J., was not correct in distinguishing the judgment of V. Sethuraman, J., because the question of applicability of the Act in cases where both the site and the building belonged to the same person and were demised together to an agriculturist came up directly for consideration before V. Sethuraman, J., learned Counsel for the contesting respondent is not wrong in his submission. That issue directly came up for consideration before V. Sethuraman, J., and he took a particular view which was not shared by Suryamurthy, J., Mohan, J., (as he then was), and Ratnam, J., as well as Nainar Sundaram, J., By these consistent views taken by my learned brother Judges, the law has more or less become settled, viz., that the provisions of the Act cannot be applied to a case where a person claims Kudiyiruppu patta on the plea that both the land and the building together were taken on lease/licence by him from the same person who is the owner thereof or where, on facts, it is proved so. 10. 10. Following the ratio of the above decisions, it has to be held on the admitted facts in this case that the first respondent, who claims to be a lessee of both the building and the site belonging to the petitioner herein, is not entitled to the benefit of the Act and the order of the Appellate Authority reversing the orders of the Authorised Officer cannot be sustained. The Writ Petition is accordingly allowed. However, there will be no order as to costs