R. Parthasarathy (Died) v. Arumugha Padayachi — 1992 DIGILAW 501 (MAD)

Judgment :- 1. The plaintiff is the appellant. Plaintiff filed the suit for recovery of possession of suit property from the defendant and for recovery of past and future mesne profits. Plaintiff is the owner of the suit property, which is a coconut thope. According to the plaintiff he has leased out the suit property to the defendant for a period of five years as per the terms and conditions incorporated in the document dated 6.2.1971 executed between the plaintiff and the defendant. According to the said document, the lease amount was Rs. 450/- per year, payable every year in advance. The defendant shall be entitled to take the coconut and dry leaves, palai, pannadai, etc. However, he should not remove the green leaves from the trees. When the defendant bales out the water for the up-keep of the coconut trees, he may incidentally raise dry crops on the land. This incidental cultivation win not give him any right under the Cultivating Tenants Protection Act. The defendant should deliver possession of the suit property to the plaintiff on the expiry of the lease period. The defendant took possession of the suit property for a period of five years, paid rent for those years. However, the defendant refused to hand over possession to the plaintiff of the coconut grove after the expiry of the lease period. Therefore, the plaintiff sent a notice to the defendant on 23.2.1976, calling upon him to deliver possession of the suit coconut grove and also demanding the mesne profits. The defendant sent a reply notice claiming right under the Cultivating Tenants Protection Act. The plaintiff filed a petition in T.N.C.T.P. No. 35 of 1976 before the Authorised Officer, Cuddalore for the eviction of the defendant. The Authorised Officer held that the Cultivating Tenants Protection Act will not apply to the defendant and hence dismissed that application on 19.3.1977. The document dated 6.2.1971 though named as lease deed is only a licence. When the licence was cancelled as and from 1.2.1976 as per the terms of the document, the defendant has no right to continue in possession from that date. Even assuming that the suit document is a lease deed, the lease came to an end on 1.2.1976 by efflux of time. Hence, the possession of the defendant will be that of a trespasser from 1.2.1976 onwards. Even assuming that the suit document is a lease deed, the lease came to an end on 1.2.1976 by efflux of time. Hence, the possession of the defendant will be that of a trespasser from 1.2.1976 onwards. Therefore, the plaintiff has filed the suit for recovery of possession of suit property from the defendant and also for recovery of past and future mesne profits. 2. The defendant filed a written statement. The case of the defendant is as under:— The civil court has got no jurisdiction to try the suit and as such the suit is liable to be dismissed. The property that was leased out is not only the thope but also the dry land which is clear from the recitals contained in the lease deed. The defendant is a lessee and he is a tenant holding over the property after the expiry of the lease period. He is not a licensee as alleged by the plaintiff. He is entitled to the protection under the provisions of the Tamil Nadu Cultivating Tenants Protection Act. It is not correct to state that the defendant removed the coconut trees from the coconut thope. He was raising groundnut and ragi crops on the punja land. The plaintiff filed a petition against the defendant for eviction before the Authorised Officer, Cuddalore. The finding given by the Authorised Officer that the defendant is not a cultivating tenant is not binding upon him. He is not a trespasser. The defendant filed an additional written statement stating that the suit claim is barred by res judicata and the suit is bad for want of proper notice to quit. It was, therefore, pleaded that the suit is liable to be dismissed. On considering the facts arising in this case, the trial court held that the defendant is only a licensee and he is not entitled to protection under Tamil Nadu Cultivating Tenants Protection Act and there is no evidence that the defendant had cut and carried away 78 coconut trees. Accordingly, the trial court decreed the suit for recovery of possession of suit property and also decreed for the past mesne profits claimed at Rs. 2,000/- The trial court dismissed the suit claim for future mesne profits and for recovery of Rs. 1,950/- being the value of trees said to be cut and carried away by the defendant. Accordingly, the trial court decreed the suit for recovery of possession of suit property and also decreed for the past mesne profits claimed at Rs. 2,000/- The trial court dismissed the suit claim for future mesne profits and for recovery of Rs. 1,950/- being the value of trees said to be cut and carried away by the defendant. However, on appeal, the first appellate court considering the facts arising in this case, came to the conclusion that the defendant is a lessee and not a licensee. According to the first appellate court the defendant is entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act. The first appellate court pointed out that the plaintiff ought to have pursued the matter further and filed an appeal against the order passed by the Authorised Officer. But this was not done by the plaintiff. On these reasonings, the first appellate court reversed the judgment and decree of the trial court and dismissed the suit with costs. It is against this judgment and decree, the plaintiff is in appeal before this court. 3. The learned counsel appearing for the appellants herein submitted as under:— The first appellate court was not correct in reversing the well reasoned judgment of the trial court. A plain reading of document dated 6.2.1971, which is marked as Ex. A1 would go to show that the respondent herein is only a licensee and not a lessee. The respondent herein was permitted only to enjoy the usufructs of the coconut trees. The land was not leased to him. The respondent was not permitted to raise any crops on the land where the coconut trees are standing. In the earlier proceedings, it was clearly held that the respondent herein was not a cultivating tenant. After the expiry of the licence period, the respondent herein is bound to surrender possession of the coconut grove. Whatever may be the case put forward by the respondent herein, the recitals in Ex. A1 would clearly go to show that the intention of the parties was to permit the respondent herein only to collect the usufructs from the coconut trees and he was not permitted to raise any crops in the vacant dry land in the coconut grove. The respondent was permitted to bale out water from the well only for the purpose of irrigating water to the coconut trees. The respondent was permitted to bale out water from the well only for the purpose of irrigating water to the coconut trees. Hence, the respondent is only a licensee. Even if assuming that the respondent herein is a lessee, after the expiry of the lease period, he is bound to surrender the possession of the coconut grove. The appellant is entitled to mesne profits since the respondent herein is in wrongful possession of the suit property. It was, therefore, pleaded that the judgment and decree of the first appellate court may be set aside and that of the trial court may be restored. 4. On the other hand, the learned counsel appearing for the respondent herein submitted as under:— The respondent herein is not a licensee as alleged by the appellants herein, but he is a lessee in respect of the suit property. Under Ex. A1 the entire coconut grove along with the punja land was leased out to the respondent herein by the plaintiff. The respondent herein is a cultivating tenant. He was raising groundnut and ragi crops in the punja land. Even in the oral evidence the plaintiff/appellants herein admitted that the defendant/respondent herein was permitted to raise crops in the punja land and in fact, the defendant was raising groundnut and ragi crops in the punja land. It is on this basis, the plaintiff filed a petition before the Authorised Officer contending that the defendant is a cultivating tenant. Therefore, even according to the plaintiff, the defendant is a cultivating tenant. If the plaintiff is aggrieved by the order of the Authorised Officer, he ought to have preferred further appeal against the said order. But, he did not do so. Therefore, the said order is binding upon him. The coconut grove and the punja lands were given to the defendant for exclusive possession. The recitals contained in Ex. A1 would clearly go to show that the defendant was not only permitted to enjoy the usufructs of the trees but also the punja land. In the lease deed, the plaintiff did not reserve the water right for himself. Therefore, the defendant/respondent herein is a lessee in respect of the suit land. After the expiry of the lease period as a tenant holding over the suit land, the respondent herein is entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act. In the lease deed, the plaintiff did not reserve the water right for himself. Therefore, the defendant/respondent herein is a lessee in respect of the suit land. After the expiry of the lease period as a tenant holding over the suit land, the respondent herein is entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act. Since the lease is an agricultural one, the notice issued by the plaintiff is hit by S. 106 of the Transfer of Property Act. It is not correct to state that the defendant cut and carried away the coconut trees as alleged by the plaintiff. Therefore the plaintiff is not entitled to the damages as claimed in the plaint. It was, therefore, pleaded that the first appellate court was correct in dismissing the suit filed by the plaintiff. 5. I have heard the rival submissions. 6. The only question that arises for consideration in this Second Appeal is whether the respondent herein is a lessee or a licensee as per Ex. A1 document dated 6.2.1971. Ex. A1 is an unregistered lease agreement dated 6.2.1971. In the lease deed, it is stated that the lease amount per year is Rs. 450/- and it should be paid every year in advance. The defendant is entitled to take the coconuts and dry leaves, etc. However, he should not remove green leaves from the coconut trees. When the defendant bales out water for the upkeep of the coconut trees, he may incidentally raise the dry crops on the land. The incidental cultivation will not give him any right under the Tamil Nadu Cultivating Tenants Protection Act. After the expiry of the lease period, the defendant should deliver possession of the suit land to the plaintiff. The plaintiff contended that the defendant is only a licensee and Ex. A1 document though called as a lease deed, it is only a licence given to the defendant to collect the usufructs of the trees. In a matter like this there are certain decisions which throw some light in understanding whether a particular document is a lease deed or a licence. A1 document though called as a lease deed, it is only a licence given to the defendant to collect the usufructs of the trees. In a matter like this there are certain decisions which throw some light in understanding whether a particular document is a lease deed or a licence. One such decision is reported in 1985 L.W. 793 in the case of Govindaraja Mudaliar v. Ellamman temple In that decision, this Court pointed out that the real test to find out whether the transaction is a lease or a licence is to see the intention of the parties at the time of entering into the transaction and that if the document creates any interest in the property it is a lease but if it only permits another to make use of the property of which legal possession continues with the owner it is a licence. 7. In this context, it is significant to note that in 1965 I MLJ 170 in the case of Arumugha Vettiyan v. Angamuthu Nattar 1990-2-M.L.J. = 1990-1-L.W. 186 this Court has pointed out that when a person has been given right to cut and remove the coconuts from a grove, his right to enter upon the land would be in the nature of a licence, if it is the case, where he is to remove the goods immediately upon the grant of right but where he is entitled to usufruct from the trees spread over a period of time, during which period the usufructs grow out of the soil then the right to collect the usufruct is in the nature of immovable property and would accordingly amount to a lease. It was thus pointed out that such a grant would create an interest in the land and the transaction was a lease. 8. Therefore, in order to decide whether a particular transaction is one of licence or lease, the Court should apply various tests and that if the right is created in respect of the land for a specified time and the grantee is expected to exploit the land for the purposes of his own then the transaction can be said to be one of lease. Where without creating any interest in the land, the right to collect the usufruct from the trees standing on the land alone is given, the grantee cannot claim to be the lessee. 9. Where without creating any interest in the land, the right to collect the usufruct from the trees standing on the land alone is given, the grantee cannot claim to be the lessee. 9. In a recent decision reported in 1990 II MLJ 20 in the case of V. Natarajan v. Veerabadran and another 65-1-M.L.J. 170=77 L.W. 745 this court while considering the recitals contained in Ex. A2 filed as a document in that case came to the conclusion that “the plaintiff will have the right to take the usufructs of the coconut trees in the land for two years on payment of Rs. 175/- per year. In the recitals itself the document has been described as ‘coconut trees lease chit’. From these recitals by no stretch of imagination it can be said that the document is a lease deed of the land, and it can only be said that it is a document that gives right to take the usufructs of the coconut trees in the land.” Therefore, ultimately it remains to be seen that the decision in each case depends upon its own facts. 10. Therefore, in the present case, we have to gather the intention of the parties at the time of inception of the tenancy, for which it is necessary to look into the lease agreement dated 6.2.1971. The document is captioned as a lease deed. According to the plaintiff even though this document (Ex. A1) is called as lease deed, it is only a licence for the defendant to collect the usufructs of the coconut trees alone and no interest was created in land in favour of the defendant. The following recitals in the deed dated 6.2.1971 would clearly show what would be the intention of the parties: Tamil 11. A reading of the recitals contained in Ex. A1 would go to show that what was leased out by the plaintiff to the defendant was both the punja land and the coconut grove. The defendant was permitted not only to collect the coconuts from the coconut trees but also permitted to raise crops in the punja land. The defendant was permitted to bale out water from the well for the purpose of irrigating the coconut trees. Incidentally, he was also permitted to raise crops in the punja land. The defendant was permitted not only to collect the coconuts from the coconut trees but also permitted to raise crops in the punja land. The defendant was permitted to bale out water from the well for the purpose of irrigating the coconut trees. Incidentally, he was also permitted to raise crops in the punja land. Even in the oral evidence, the plaintiff admitted that the defendant was permitted to raise crops in the punja land. The plaintiff admitted that in fact groundnut and Ragi crops were raised by the defendant. According to the plaintiff though the defendant was permitted to bale out the water for the purpose of irrigating the coconut trees that would not entitle him to cultivate the punja land. In support of this contention, recitals contained in the latter portion of Ex. A1 were relied upon. However, the first appellate court pointed out that the recitals contained in the later portion of Ex. A1 could be an interpolation. 12. It remains to be seen that the plaintiff filed an application for eviction against the defendant before the Authorised Officer. But that petition was dismissed. However, the plaintiff did not pursue the matter further. According to the defendant since the plaintiff considered that the defendant is a cultivating tenant, he approached the Authorised Officer for eviction. It was further stated that this order will not be binding upon the defendant since no notice was served on him in these proceedings. There is some force in this line of argument. 13. Thus, the oral evidence tendered by the plaintiff and the recitals contained in Ex. A1 would go to show that what was leased out to the defendant is not only the right to collect the usufructs from the coconut trees but also the right to enjoy the punja lands. In fact an interest in the land was created in favour of the respondent herein. In this context, it is significant to note the following decisions rendered by a Division Bench of this court in 1963 II MLJ 137 in the case of Govindasamy Vanniar v. Smt. S. Mahalakshmi Ammal and others, wherein it was held that as there could be an agricultural operation only if two things co-existed, namely, basic and subsequent operations the mere existence of the latter alone would not make the operation an agricultural one. That does not mean that both sets of operations should be done by the same individual or within a specified period of time. There can be an agricultural lease in regard to coconut trees planted already and existed on the land at the time the lessee takes the property on lease. Further, it has been held that “the right of the lessee was to enjoy only the coconut yield from the trees which derived their nourishment from the land. It may be that such a benefit amounts to an interest in immovable property. But that is not the same thing as saying that there has been a transfer of the land itself.” In this context, another decision which was brought to my notice was that reported in 1948 II MLJ 155 in the case of Venugopal Pillai v. Thirunavuk Karasu 1963-2-M.L.J. 137=76 L.W. 376, 61 L.W. 514 wherein a Division Bench of this Court held as under: 1963-2-M.L.J. 137 = 76 L.W. 376 “So far as the land was concerned, he was only a licensee and his right to enter upon the land and to use the land was only so long as he had the right to enjoy the toddy yield from the trees. But his right to tap the coconut trees and obtain toddy is in the nature of, immovable property because it is a benefit which arises out of land and the right conveyed by the agreements would be in the nature of leasehold right. The notice issued on 5th September, 1947 cannot be treated as a proper and valid notice. The lease of the toddy yield is a lease for agricultural purpose and therefore a sufficiently reasonable notice should have been given before it could be properly terminated. The principle underlying S. 106 of the Transfer of Property Act would be applicable to such a case. As the lease was not properly terminated, the plaintiffs were not entitled to relief.” 14. So also, this court in the case of Venkatachalapathy Udayar v. Rajalakshmi Ammal 1981 I M.L.J. 11_93 L.W. 505=61 L.W. 514 held that: “After a right is created in respect of a land for a specified time and the grantee is accepted to exploit the land for the purpose of his own then the transaction is one of lease. So also, this court in the case of Venkatachalapathy Udayar v. Rajalakshmi Ammal 1981 I M.L.J. 11_93 L.W. 505=61 L.W. 514 held that: “After a right is created in respect of a land for a specified time and the grantee is accepted to exploit the land for the purpose of his own then the transaction is one of lease. But where without any interest in the land the right to collect the usufruct from the trees standing on the land alone is given, the grantee cannot claim to be a lessee but he is only a licensee. Regard should be had to the substance of the transaction and the intention of the parties to determine whether a particular transaction is lease, or a licence.” 15. We have already seen that in the present case, the right is created in respect of the suit land apart from permitting the defendant from enjoying the usufructs of the trees. Thus, on a plain reading of Ex. A1 lease deed dated 6.2.1971 and the oral evidence given by P.W. 1 in the light of the judicial pronouncement cited supra, I hold that what was given to the defendant under Ex. A1 document was not only the right to collect the usufruct from the coconut trees and other trees but also the right to cultivate the punja land. Hence the respondent was a lessee in respect of the suit property. Thus, when the lease is an agricultural lease, the notice issued by the landlord on 23.6.1976 is hit by the provisions of S. 106 of the Transfer of Property Act as contended by the defendant. Since the lease was not properly terminated, the plaintiff is not entitled to the relief as prayed for. 16. Thus, on a careful consideration of the facts arising in this case, I hold that the judgment and decree rendered by the first appellate court are in order. Accordingly, the judgment and decree rendered by the first appellate court are confirmed and the Second Appeal is dismissed. However, there will be no order as to costs.