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1999 DIGILAW 30 (MAD)

Thirugnanam v. Kamalammal

1999-01-11

N.V.BALASUBRAMANIAN

body1999
Judgment :- An oft-repeated question whether there was a lease on agricultural land or whether there was a licence granted to the licensee to pluck the fruits of the trees arises in this Writ Petition. 2. The petitioner is the owner of the land of an extent of about 11 acres and 16 cents situate in Rangiam village, Udayarpalayam Taluk, Trichy District. According to the petitioner, the land is a thope comprising cashewnut, mango and jack fruit trees and also other miscellaneous trees of all kinds and the trees were already grown up and they yielded usufruct without any personal exertion on the part of those maintaining it and no personal labour involving muscular energy was needed for the said trees to yield the usufruct. According to the petitioner, the petitioner and his brothers were in enjoyment thereof by plucking and collecting the fruits of the trees every year and utilising the same partly for their consumption and mostly for sale. According to the petitioner, in or about the year 1978, when the petitioners father was alive, he transferred by way of licence the use and enjoyment of the usufruct of the said trees to the first respondent and accordingly, an agreement was entered into on 17.8.1978 by the father of the petitioner with the first respondent herein and the terms of the document will be noticed later. The first respondent, on the basis of the document claimed that she was a cultivating tenant which was negatived by the Tahsildar. The first respondent then preferred an appeal before the Revenue Divisional Officer, Ariyalur and the Revenue Divisional Officer allowed the appeal and held that the name of the first respondent should be included in the Register of final Record of Tenancy rights in respect of the land in dispute. There was a revision before the District Revenue Officer, Trichy. The District Revenue Officer passed his order on 26.8.1990 confirming the order of the third respondent. The petitioner has challenged the order of the District Revenue Officer, Trichy dated 26.8.1990 confirming the order of the third respondent and prayed to quash the said order. 3. There was a revision before the District Revenue Officer, Trichy. The District Revenue Officer passed his order on 26.8.1990 confirming the order of the third respondent. The petitioner has challenged the order of the District Revenue Officer, Trichy dated 26.8.1990 confirming the order of the third respondent and prayed to quash the said order. 3. The controversy in this case centres around the interpretation of the deed dated 17.8.1978 and the clauses which are relevant for the purpose of this case read as under:— Tamil The case of the Writ Petitioner is that there was no lease, but what was granted under the deed was only a licence. 4. Mr. AR.L. Sunderasan, learned counsel for the petitioner submitted that the distinction between a lease and a licence is well defined. He referred to Section 52 of the Easements Act, 1882 and submitted that what was granted in favour of the first respondent was only a right to enjoy the usufruct and the same was revoked. He referred to the terms of the agreement and stated that what was granted was only a right to enjoy the usufruct of the trees and inclusion of the land beneath the trees, according to the counsel for the petitioner, would not create any interest on the land. Learned counsel for the petitioner submitted that those words should be read along with the words preceding and the document does not create any other right in land except the right to collect the usufruct of the trees. He also submitted that the fact that possession was given for a period of 5 years would not establish that there was a lease as under Section 52 of the Easements Act, the possession was only incidental to the right to collect the usufruct of the trees. According to the learned counsel, there was no agreement of the parties to lease out the land and the intention was also the same and the manner of payment of the licence amount also shows that what was granted was only a licence. He also submitted that the cultivation was not permitted under the agreement and in the absence of any agreement too cultivate the land, learned counsel for the petitioner submitted, the first respondent cannot be regarded as a cultivating tenant. He also submitted that the cultivation was not permitted under the agreement and in the absence of any agreement too cultivate the land, learned counsel for the petitioner submitted, the first respondent cannot be regarded as a cultivating tenant. Learned counsel for the petitioner submitted that there is no evidence at all to show that the first respondent was cultivating the land and he referred to the evidence of the first respondent before the Tahsildar and submitted that the first respondent has herself admitted that in the agreement nothing was mentioned about the cultivation of land and she deposed to the effect that only the attesting witnesses knew about the terms of the agreement. He referred to the evidence given by the attesting witnesses and submitted that both of them have stated that the first respondent has no right of enjoyment of the land and there was no agreement for the cultivation of the land. He also brought to my notice the evidence of one Chidambara Padayachi, examined on behalf of the first respondent, who has stated that he has not seen who was cultivating the land. He therefore submitted that the respondents 2 and 3 have not considered all the materials on record and he therefore submitted that though this Court may not reappreciate the evidence, but when the findings of the respondents 2 and 3 are perverse and the findings were arrived at without considering the “materials on record this Court should interfere. He further submitted that the mere fact that the possession was given would not amount to grant of lease and even for a licence permission to enter upon the immovable property is required. He also submitted that there is no exclusive possession and the document does not specify the mode of cultivation and the land was not capable of cultivation also. He submitted that even the Schedule to the agreement also indicates what was given was only a right to pluck usufruct of the trees and the intention of the parties was to grant only a licence. He relied upon the following decisions:— (i) Venugopal Pillai v. Thirunavukkarasu and others (A.I.R. (36) 1949 Madras 148 = 61 L.W. 514) (ii) Govindaswami v. Mahalakshmi Ammal (76 L.W. 378), (iii) Murugesan v. Sundaralal (94 L.W. 298), (iv) Venkatachalapathy Odayar v. Rajalakshmi Ammal ( 1981 (1) M.L.J. 11 = 93 L.W. 505). He relied upon the following decisions:— (i) Venugopal Pillai v. Thirunavukkarasu and others (A.I.R. (36) 1949 Madras 148 = 61 L.W. 514) (ii) Govindaswami v. Mahalakshmi Ammal (76 L.W. 378), (iii) Murugesan v. Sundaralal (94 L.W. 298), (iv) Venkatachalapathy Odayar v. Rajalakshmi Ammal ( 1981 (1) M.L.J. 11 = 93 L.W. 505). (v) Natarajan v. Veerabadra Udayar (1990-1-L.W. 186). (vi) Mani Thevar v. R.M. Venkatachalam (1992-2- L.W. 234), and vii) Senniappa Nadar v. T.R. Sarojini Ammal ( 1997 (1) C.T.C. 22 = 1996-1-L.W. 291). 5. Learned counsel for the first respondent, on the other hand, submitted that the evidence of the first respondent before the Tahsildar clearly shows that there was cultivation by the first respondent and the fact that the land was also mentioned in the agreement establishes that the father of the petitioner allowed the first respondent to cultivate the land and hence, it is only a case of lease. He also submitted that the finding of the second and the third respondents that the first respondent is a cultivating tenant was arrived at on the basis of the materials on record and he referred to the evidence of the first respondent wherein she has stated that she has been cultivating the land and it is not correct to state that the entire land is a thope. Learned counsel for the first respondent therefore submitted that the adangal register also clearly shows that the first respondent has been cultivating the land and the village accounts also show that the first respondent is a cultivating tenant. Learned counsel for the first respondent relied upon the decisions of this Court in the case of Venugopala v. Tliirunavukkarasu (A.I.R. (36) 1949 Madras 148 = 61 L.W. 514). Renga Iyengar v. Sivaswami Pandaram ( 1977 (II) M.LJ. 265 = 90 L.W. 559), Saravanan v. Sri Vedaranyeswaraswami Devasthanam ( 1982 (II) M.LJ. 290 = 95 L.W. 322) and Munian Muthuraja v. Rajarathinam ( 1960 (II) M.L.J. 475 = 73 L.W. 329). 6. Learned counsel for the petitioner, in his reply, submitted that the rent receipts do not show the cultivation of the land by the first respondent and he referred to the order of the Tahsildar wherein he has considered the rent receipts and held that the rent receipts did not show that there was cultivation of the land by the first respondent. 7. 7. Before considering the arguments advanced by the learned counsel for the parties, it is necessary to refer to the decisions relied upon by the learned counsel for the parties. In Munian Muthuraja v. Rajarathinam ( 1960 (II) M.LJ. 475 = 73 L.W. 329), Ananthanarayanan, J. (as His Lordships then was) considered the question of a persons right in taking a lease of usufruct alone and the learned Judge held that the person could be regarded as a cultivating tenant. Learned Judge laid down the following test and came to the conclusion that the lessee should be regarded as a cultivating tenant. “The lessee will necessarily have to provide the minimum care for the plantation, and so long as we may take judicial notice of this fact, he would certainly be a person engaged in “cultivation” within the meaning of the Act. Otherwise, the result would be the patently fallacious and absurd one, that in every case, the application of the definition would depend upon oral evidence as to the kind of manual labour employed by the lessee. It is not pretended that cashew trees, being organic growth, can subsist by themselves without the necessary minimum care, such as watering, etc. In the case of a lease, it is obviously the lessee in occupation who will be providing this minimum care”. 8. G. Ramanujam, J., in Venkatachalapathy Odayar v. Rajalakshmi Ammal ( 1981 (I) M.LJ. 11 = 93 L.W. 505) considered the decision of this Court in the case of Panchapakesan v. Swaminathan (1971) I M.L.J. 169 = 84 L.W. 800) and the observations made by the learned Judge are relevant for the purpose of this case which are thus: “To decide whether a particular transaction is one of licence or lease, Courts have applied various tests. If a right is created in respect of a land for a specified time and the grantee is expected to exploit the land for purposes of his own, then the transaction can be said to be one of lease. But, where without creating any interest in the land the right to collect the usufructs from the trees standing on the land alone is given, the grantee cannot claim to be a lessee, he can be said to be a license e only. But, where without creating any interest in the land the right to collect the usufructs from the trees standing on the land alone is given, the grantee cannot claim to be a lessee, he can be said to be a license e only. In determining whether a particular transaction is a lease or a licence, we have to be guided by the substance of the deed evidensing the transaction and the intention of the parties. In Panchapakesan v. Swaminathan (1971) I M.LJ. 169 = 84 L.W. 800), this Court has pointed out the distinction between a lease and a licence. It was pointed out in that case that the distinction between a lease and a licence is well-established, that if there is a document, the substance of the document must be preferred to the form, that the real test is the intention of the parties whether they intended to create a lease or a licence, that if the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence. The distinction between a lease and licence had been pointed out by the Supreme Court in Associated Hotels of India v. R.N. Kapoar (1960 SCJ 453: (1963) I SCR 368: A.I.R. 1959 SC 1262). In the said decision, it was pointed out that the real test is the intention of the parties and that if the document creates an interest in the property, it is a lease, but if it merely permits another to make use of the property, it is a licence. In M.N. Clubwala v. Fida Husain Saheb (1964) 2 S.C.J. 448: (1964) 2M.LJ. (S.C.) 83: (1964) 2 An.W.R.(S.C.)83:(1964) 6S.C.R642: A.I.R. 1965 S.C. 610), the Supreme Court again pointed out that the intention of the parties is the decisive consideration for finding out whether the agreement between the parties created a relationship of landlord and tenant or merely that a licensor and licensee, that the intention of the parties has to be ascertained on a consideration of all the relevant provisions in the document and that in the absence of a formal document, the intention must be inferred from the circumstances and conduct of the parties”. 9. 9. In Murugesan v. Sundaralal (94 L.W. 298), the deed which, was the subject matter therein conferred on the tenant the right to enjoy usufruct from the trees in consideration of payment of rent at a certain rate and in that factual situation the learned Judge had no hesitation in holding that where the lease impinges on the usufruct of the trees standing on the land and where the land is severely excluded from the ambit of the subject matter of the lease, the lessee cannot be regarded as a cultivating tenant. 10. Bellie, J., had considered a similar question in more than one occasion. In Natarajan v. Veerabadra Udyar (1990- 1-L.W. 186), the learned Judge taking into consideration the decisions of a Division Bench of this Court in the case of Govindasami Vanniar v. Mahalakshmi Animal (76 L.W. 378 = (1963)-2-M.LJ. 137) and Venugopal Pillai v. Thimnavukkarasu and others (61 L.W. 514 = (1948)-2-M.LJ. 155) held that the right to collect the produce from the trees could not be regarded as a lease of the land and what was granted was only a right to collect the produce from the trees and there was no right on the land and the tenant could not be regarded as a cultivating tenant. 11. In Mani Thevar v. R.M. Venkatachalam (1992-2-L.W. 234), Bellie, J. again considered the similar question and after referring to earlier decisions, learned Judge held that the defendant was only given a right to collect the coconuts from the trees and the transaction should be regarded only as a licence. In Senniappa Nadar v. T.R. Sarojini Ammal ( 1997(1) C.T.C. 22 ), P. Sathasivam, J. considered earlier case laws on the subject and held that if there had been transfer of land in favour of a person by way of lease, then the person is entitled to the protection of the Cultivating Tenants Protection Act and where there was no demise of the land, the transaction should be viewed only as a licence. 12. 12. In Venugopala v. Thimnavukkarasu (A.I.R. 1949 Madras 148), a Division Bench of this Court was considering a case where there was an agreement of rent in respect of toddy yield of the coconut trees and the defendant obtained a right to enjoy the toddy yield and the right to enter upon the land for that purpose, but did not obtain any right in the land and on those facts, learned Judge found that the defendant was not entitled to the exclusive possession of the land as such but the owner was entitled to make such use of the vacant land as he wanted to and was also expected at his own cost to water the trees, keep them in condition and engage men to do all the acts of bettering the garden. The learned Judge held that the defendant was not a lessee of the land and in so far as the land was concerned, he was only a licensee and his right to enter upon the land to use the land was found to be existing so long as he had the right to enjoy the toddy yield from the trees. 13. In Renga Iyengar v. Sivaswami Pandaram ( 1977 (II) M.L.J. 265 ), V. Ramaswami, J. (as His Lordship then was) held that where there was a lease of right to cut and remove coconut trees standing on the immovable property, it was a lease and that too, it was an agricultural lease and the learned Judge held as under:— “The definition of immovable property includes standing trees and only standing trees are excluded under the Transfer of Property Act. Since in this case the lease was not a lease of the land but it was a lease of the right to cut and remove coconut from the trees standing on an immovable property, it is a lease of immovable property itself and as held by this Court, it is also an agricultural lease”. 14. S. Mohan, J. (as His Lordship then was) in Saravanan v. Sri Vedaranyeswaraswami Devasthanam ( 1982 (II) M.L.J. 290 ) held that where a right was given to pluck coconut in favour of the plaintiff, that right to pluck coconut would amount to lease and so long as the said lease was subsisting, he was entitled to the protection of the Tamil Nadu Cultivating Tenants Protection Act. Learned Judge, following the decision of V. Ramaswami, J. in Renga Iyengars case (cited supra) , held that the right to pluck coconut would amount to lease of the land. 15. In Govindaswami v. Mahalakshmi Ammal (1963-II-M.L.J. 137), the facts are that there was a document under which a right was created in respect of trees standing thereon and the right was only to collect the produce from the trees and no interest was created on the land and there was an undertaking on the part of the lessee not to cultivate any other part of the land and there was an express term stating that the trees alone were leased out. This Court, in those factual situations, held that what was granted was a lease of the usufruct from the trees coupled with the licence on the land. The above decision is not applicable to the facts of the case. In the instant case, there was a transfer of the land also and the lessee was given exclusive possession of the land and there is no express term to the effect that the lessee should not cultivate the land, but on the other hand, there is an implicit agreement that the lessee was allowed to cultivate the land as the lessor was made liable for the loss, if the lessor prevents the lessee from entering upon the land or if the lessor alienates the land to any third party. In other words, a right in the land was created and the opening words of the deed implies that a right in the land was created in favour of the lessee. Otherwise, there was no necessity for the lessor to bear the loss, if he prevents the lessee from entering upon the land or if he alienates the land to any third party. Further, there is no express recital to the effect that what was given was only a right to enjoy the usufruct of the trees, but, if that was the intention, that could have been stated by the parties in the document. On the other hand, the clause, ‘the lease of the trees and the land’ clearly shows the intention of the parties too the effect that what was given was a lease to cultivate the land and not it was a mere licence. 16. On the other hand, the clause, ‘the lease of the trees and the land’ clearly shows the intention of the parties too the effect that what was given was a lease to cultivate the land and not it was a mere licence. 16. Applying the various tests laid down in various decisions to the facts of the case, it is clear that the agreement provides not only a right over the trees, but also in the land. If as contended by Mr. AR.L. Sunderasan, learned counsel what was demised was only a right to pluck the usufruct from the trees, there is no reason why a right should be given to the lessee in respect of the trees and also in respect of the underlying land. That apart, the second part of the document gives exclusive possession of the land in favour of the first respondent and there is also a clause to the effect that if the owner of the land prevents the lessee from entering upon the land or if he alienates the land, he would be liable to pay the loss to the lessee. Though there are no specific words empowering the lessee to cultivate the land, the intention of the parties, as seen from the document, clearly shows that what was given on lease was the land and the trees standing thereon. In other words, there are no restrictions contained in the agreement to the effect that the right of the lessee is restricted to the usufruct from the trees. On the other hand, the expression, “kuthakai” of the land and trees indicates the intention of the parties that the lessee was allowed to have the benefit of cultivation. The mere fact that a fixed sum of Rs. 3000/- was to be paid on the date mentioned, without reference to the factum of cultivation or realisation of produce is not very relevant when the land was given on lease to the lessee for cultivation. Though the attesting witnesses have deposed to the effect that the lessee was not given any right to enjoy the land, i n view of the expressions contained in the document, much reliance cannot be placed on the oral evidence of the attesting witnesses. The evidence of the first respondent also shows that she has been cultivating the land which was accepted by the second and third respondents. The evidence of the first respondent also shows that she has been cultivating the land which was accepted by the second and third respondents. The third respondent found that the lessee has been cultivating the land and the adangal register of the village also proves the factum of cultivation of the land in question. Though the receipts given by the father of the petitioner do not show that the amounts were received towards rent of the land, the absence of any recital is not of much importance when the factum of cultivation by the first respondent was accepted by the respondents 2 and 3. In my view, the agreement clearly envisages that there was a lease of the land. The contention of the learned counsel for the petitioner that there is no agreement for cultivation is also not acceptable. The agreement was entered into after coming into force of the Tamil Nadu Cultivating Tenants Protection Act, 1955. Though there is no express agreement providing for cultivation of the land by the first respondent, a close reading of the document shows that the first respondent was given lease of the land and trees and the lease of the land can only be for cultivation. Therefore, in my view, the agreement to cultivate the land is implicit in the agreement itself. That apart, the respondents 2 and 3 have come to the conclusion on the materials available on record that the first respondent is a cultivating tenant and this Court is not sitting in appeal and unless it is established that the views of the respondents 2 and 3 are perverse, this Court will not interfere with such findings. I find that the findings of the respondents 2 and 3 are supported by materials on record and the agreement entered into between the parties also proves the intention of the parties and it provides for the use of the land along with the trees. Therefore, I do not find any infirmity in the order of the second respondent confirming the order of the third respondent. Accordingly, the Writ Petition fails and it is dismissed. However, in the circumstances, there will be no order as to costs. Consequently, W.M.P. No. 24120 of 1990 is dismissed.