Varadarajulu v. J. L. Sanjeevi (died) & others — 1996 DIGILAW 140 (MAD)

Judgment : 1. The defendant is the appellant. The respondent in the second appeal who is the plaintiff filed O.S.No.867 of 1979 on the file of Additional District Munsif at Pondicherry for evicting the defendant from the suit property after removal of the superstructure and for delivery of possession. 2. According to the plaintiff, he is the absolute owner of the suit property. The defendant entered into the suit property on the basis of a tenancy agreement. With the plaintiff and agreed to pay a monthly rent of Rs.10. The defendant is in arrears of rent. The defendant tried to invoke the Kudiyiruppu right in the suit property. The Authorised Officer, Kudiyiruppu and the appellate authority under the Kudiyiruppu Act rejected the claim of the plaintiff. The defendant filed his written statement stating that even though the Authorised Officer and the Collector have decided the matter as against the defendant, he has already taken steps and preferred an appeal in this Court, hence prayed for dismissal of the suit. The defendant has also denied that he is in arrears from March, 1976. He also contended that the plaintiff has not valued properly the suit property as per the provisions of Pondicherry Court-Fees and Suit Valuation Act, 1972. 3. With the above pleadings of the parties, the Additional District Munsif, Pondicherry, framed the following issues for consideration: .(1) Whether the suit has not been properly valued and proper court-fee has not been paid. .(2) Whether the defendant is liable to vacate and hand over possession of the suit property to the plaintiff? .(3) To what other relief the plaintiff is entitled? On issue No.1, the trial Court inasmuch as the plaintiff has correctly and properly valued, found that issue in favour of the plaintiff. 4. The second issue is more important. The plaintiff, in support of his plea, examined himself as P.W.1 and marked Exs.A-1 to A-4. On the other hand, the defendant examined himself as D.W.1 and has not marked any document in support of his defence. It is relevant to note that Ex.A.3 is the order copy of the Authorised Officer of Kudiyiruppu dated 110. 1976. Ex.A.4 is the order passed in Appeal No. 44 of 1976 dated 30.5.1979. A reading of Exs. On the other hand, the defendant examined himself as D.W.1 and has not marked any document in support of his defence. It is relevant to note that Ex.A.3 is the order copy of the Authorised Officer of Kudiyiruppu dated 110. 1976. Ex.A.4 is the order passed in Appeal No. 44 of 1976 dated 30.5.1979. A reading of Exs. A-3 and A-3 shows that the Authorised Officer as well as the appellate authority under Kudiyiruppu Act have decided that the defendant is not entitled for any benefit under the provisions of the Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1973. On the basis of the position prevailed at the time of disposal of the suit and in view of the fact that there is no other legal impediment for the plaintiff to ask for the eviction of the defendant, in the light of the orders passed by the competent authorities under the Act, namely, the Authorised Officer and the Appellate Authority, the Additional District Munsif, Pondicherry, by judgment and decree dated 22. 1981, decreed the suit as prayed for. 5. Against the judgment and decree of the Additional District Munsif, Pondicherry, the unsuccessful defendant filed appeal in A.S.No. 64 of 1981 on the file of Second Additional District Judge, Pondicherry. It is seen from the judgment of the Lower Appellate Court that when the matter came up for argument, the learned counsel for the appellant therein, namely, Varadarajulu did not advance any argument and the respondent’s counsel pleaded that the Judgment of the trial Court may be confirmed and the appeal may be dismissed accordingly. The lower Appellate Court found that the appellant, namely, Varadarajulu is only a tenant under the respondent, namely, J.L.Sanjeevi, the competent authority having already found that the appellant therein was not entitled to the benefits of Kudiyiruppu Act, dismissed the appeal with costs. 6. Against the judgment and decree of the Second Additional District Judge, Pondicherry, and made in AS No. 64 or 1981, the defendant has preferred the present second appeal before this Court. At the time of admission this Court framed the following substantial questions for determination:- “1. Whether the Lower Appellate Court was right in merely confirming the judgment of the trial Court without itself applying its mind and giving reasons for such confirmation? 2. At the time of admission this Court framed the following substantial questions for determination:- “1. Whether the Lower Appellate Court was right in merely confirming the judgment of the trial Court without itself applying its mind and giving reasons for such confirmation? 2. Whether the Lower Appellate Court was right in not taking into consideration, the written plea of the appellant that the orders refusing to grant relief under the Kudiyiruppu Act is the subject matter of WA No. 381 of 1980 pending in the High Court?” When the above second appeal came up for hearing, the learned counsel for the appellant brought to my notice that the appellant has filed two Civil Miscellaneous Petitions, namely, C.M.Ps. Nos. 4981 and 4982 of 1993. C.M.P.No. 4981 of 1993 is filed to permit the petitioner/appellant to produce the certified copy of the judgment dated 1. 1986 made in Writ Appeal No. 381 of 1980 on the file of this Court as additional documentary evidence in Second Appeal No. 1971 of 1982. CMP. No.4982 of 1993 is to permit the petitioner to raise additional substantial question of law mentioned in the Annexure-A to the affidavit in the memo of grounds in SA.No.1971 of 1982. .7. The learned counsel for the appellant brought to my notice that the respondent herein is the owner of Kudiyiruppu, that is, suit property, in respect of which the appellant herein is a tenant under him. During the year 1976, the respondent instituted proceedings in S.R.No.115/76-E.2 under Section 5 of the Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership Act, 1973 before the Authorised Officer (Kudiyiruppu), Pondicherry, against the appellant herein for a declaration that the appellant here in is not entitled to the benefit of the said Act and consequently, the appellant herein should not be recognised as a “Kudiyiruppudar” under the Act. It is further contended that the Authorised Officer allowed the said petition on 110. 1976. Aggrieved by the same, the appellant herein filed Kudiyiruppu Appeal No.44 of 1976 on the file of the Revenue Secretary-cum-Collector, Pondicherry, and the same was also dismissed. Against the said order, W.P.No. 396 of 1980 filed by the appellant herein was dismi ssed in limit. Against the order in W.P.No. 396 of 1980 before this Court along with CMP No. 7457 of 1980 for an order of stay. It is seen that on 3. Against the said order, W.P.No. 396 of 1980 filed by the appellant herein was dismi ssed in limit. Against the order in W.P.No. 396 of 1980 before this Court along with CMP No. 7457 of 1980 for an order of stay. It is seen that on 3. 81 a Division Bench of this Court has granted interim stay for two weeks, which was subsequently made absolute on 23. 1981. By Judgment dated 1. 1986, the Division Bench of this Court was pleased to allow the writ appeal and quash the order dated 110. 1976 passed by the Authorised Officer as confirmed by the appellate authority. .8. It is further contended by the appellant that the decree in O.S. 867 of 1979 on the file of Additional District Munsif at Pondicherry came to be passed only on the basis of the order of the Authorised Officer as confirmed by the appellate Authority. The said decree in O.S.No. 867 of 1979 was also confirmed by the Second Additional District Judge, Pondicherry in AS No. 64 of 1981. In view of the order passed in Writ Appeal No. 381 of 1980 dated 1. 1986 by the Division Bench of this Court, I allow C.M.P. No. 4981 of 1993 and the said copy of the judgment is entertained as additional Documentary evidence in this second appeal. Likewise, I allow CMP No. 4981 of 1993 and frame the following additional substantial question of law for determination in the second appeal: .“Whether the judgments and decrees of both the courts below primarily based on the order dated 110. 1976 made in S.R.No. 115/76-B.2 on the file of the Authorised Officer (Kudiyiruppu), Pondicherry, and the order dated 30.5.1979 made in Kudiyiruppu Appeal No. 44 of 1976 on the file of the Revenue Secretary-cum-Collector, Pondicherry, have not become unsustainable in the light of the judgment dated 1. 1986 made in WA No.381 of 1980 on the file of this Court, setting aside the orders of the abovesaid authorities appointed under the Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1973?” 9. I have heard the arguments of learned counsel for the respondent herein. Even though the learned counsel for the respondent admits the Judgment of the Division Bench of this Court in Writ Appeal No. 381 of 80, she tried to distinguish and pleaded for dismissal of the above second appeal. 10. I have heard the arguments of learned counsel for the respondent herein. Even though the learned counsel for the respondent admits the Judgment of the Division Bench of this Court in Writ Appeal No. 381 of 80, she tried to distinguish and pleaded for dismissal of the above second appeal. 10. As stated above, the trial Court as well as the lower appellate Court granted decree in favour of the plaintiff only on the basis of the order of the Authorised Officer (Kudiyiruppu), Pondicherry. The Judgment copy of the Division Bench of this Court rendered on 1. 86 in Varadarajulu v. Jean Youis Sanjeevi and 2 others, W.A.No. 381 of 80 shows that both the orders of the Authorised Officer (Kudiyiruppu), Pondicherry and the Revenue Secretary-cum- Collector, Pondicherry have been set aside. It is useful to mention here sections 4 and 5 of The Pondicherry Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1973 which read as follows: “Section 4(1):-Any agriculturist or agricultural labourer who not having a dwelling house or house-site or a hut of his own was occupying any Kudiyiruppu on the 27th day of March, 1972 either as tenant or as licensee, shall, with effect from the date of commencement of this Act, be the owner of such Kudiyiruppu and such Kudiyiruppu shall vest in him absolutely free from all encumbrances. Provided that the extent which shall so vest in such agriculturist or agricultural labourer shall not exceed three area in rural areas and two area in urban areas as may be determined by the authorised Officer after giving a reasonable opportunity to the occupant of the Kudiyiruppu and the person interested of being heard in the matter. (2) Where, in the case of an occupant of Kudiyiruppu referred to in sub-section (1), the superstructure belongs to any person other than such occupant, such superstructure shall also, with effect from the date of commencement of this Act, vest in such occupant absolutely free from all encumbrances. 5(1) If any dispute arises whether any agriculturist or agricultural labourer was occupying any Kudiyiruppu on the 27th day of March, 1972, for purposes of Section 4, such dispute shall be decided by the authorised Officer. 5(1) If any dispute arises whether any agriculturist or agricultural labourer was occupying any Kudiyiruppu on the 27th day of March, 1972, for purposes of Section 4, such dispute shall be decided by the authorised Officer. .(2) In deciding the dispute under sub-section (1) the authorised Officer shall follow such produce as may be prescribed.” After reading the above mentioned sections, the Division Bench of this Court in the judgment referred to above, came to the conclusion that if there is no dispute in terms of section 4, the authority constituted under the Act need not indulge in an independent adjudication and give a bare declaration under Section 5. In other words, only if a dispute arises for purposes of section 4 there could be a warrant for exercising the power under Section 5. The Bench has also held that section 5 does not contemplate entertaining an application for a bare adjudication and declaration when no dispute has arisen for the purposes of the section. Inas much as no contingency as contemplated under Section 5 has arisen in the present case, the orders of the competent authorities under the Act have been set aside by the Division Bench of this Court in the Judgment referred to above. In view of the order of the Division Bench of this Court dated 1. 1986 made in WA No. 381 of 1980, the second appeal is bound to be allowed, accordingly, the judgment and decree of the Additional District Munsif, Pondicherry dated 12. 1980 made in O.S.No. 867 of 1979 as confirmed by the Additional District Judge at Pondicherry in AS No. 64 of 1981 dated 11. 1982 are hereby set aside and O.S. 867 of 1979 on the file of Additional District Munsif at Pondicherry filed by the plaintiff is hereby dismissed. However, I make it clear that as observed by their Lordships in W.A.No. 381 of 80 when necessary contingency as contemplated under Sections 4 and 5 of the Act arises, it is always open to the parties to approach the concerned authorities as per the provisions of the Act. With this observation, the second appeal is allowed. Considering the nature of the dispute, I am not ordering any cost in the second appeal.