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Madras High Court
GOKULAKRISHNAN
Amirthalinga Pandarathar - Appellant
Versus
Kesavachariar - Respondent
Decided On : 03/05/1971
MADRAS CULTIVATING TENANTS PROTECTION ACT - TENANT UNDER MORTGAGEE - RIGHTS - CULTIVATING TENANT - DEFINITION - INTERPRETATION - APPLICABILITY.
Fact of the Case:
The plaintiff filed a suit for possession and past and future mesne profits of the suit properties. The plaintiff alleged that he was cultivating the suit properties personally and that the first defendant, who was working as kariasthar under him, took the lands usufructuarily mortgaged to the sister of the plaintiff, on lease, and cultivated the same. The first defendant then trespassed into the B schedule lands taking advantage of the fact that he was a lessee of the A schedule lands. The said usufructuary mortgage was discharged on 3-10-1965 but the first defendant did not surrender possession of the land to the plaintiff in spite of notice, claiming that he was a cultivating tenant under him in respect of the third item in the A schedule. The second defendant claimed to be the cultivating tenant of the remaining two items in the A schedule and the only one item in the B schedule since 1961, having taken it on waram from the plaintiff in fasli 1370. The plaintiff denied the claims of the defendants that they were cultivating the lands under him on waram basis or otherwise, and stated that he was entitled to possession of the suit properties. The trial court found that the first defendant was cultivating the A schedule properties under the mortgagee, Thangammal, that he was not cultivating item 3 of the A schedule under any tenancy agreement, under the plaintiff from fasli 1369 onwards on waram basis, that the 2nd defendant was not cultivating items 1 and 2 of the A schedule and the B schedule property under tenancy agreement with the plaintiff from fasli 1370 on waram basis, that there was no arrangement between the plaintiff and defendants, that the defendants were not cultivating tenants entitled to the benefits of Act XXV of 1955, that the Court of the District Munsif, Chidambaram, had jurisdiction to try the suit and that the plaintiff was entitled to possession of the properties with past mesne profits of Rs.2232. The lower appellate court confirmed the judgment and decree of the trial court. Aggrieved by the judgment and decrees of the courts below, the defendants preferred the above second appeal.
Finding of the Court:
The court found that the first appellant is a cultivating tenant in respect of the third item of the A schedule properties and that he is entitled to have the protection of the Madras Cultivating Tenants Protection Act. The court also found that the second appellant has not proved his tenancy agreement, implied or express. The court further found that the lower appellate court erred in granting mesne profits in favour of the plaintiff in respect of the B schedule property.
Issues: 1. Whether the first appellant is a cultivating tenant under the Madras Cultivating Tenants Protection Act? 2. Whether the second appellant has proved his tenancy agreement? 3. Whether the lower appellate court erred in granting mesne profits in favour of the plaintiff in respect of the B schedule property?
Ratio Decidendi: 1. The definition of 'cultivating tenant' under Section 2(aa) of the Madras Cultivating Tenants Protection Act requires that the person must carry on personal cultivation on the land, there must be a tenancy agreement, and the tenancy agreement may be express or implied. In the present case, the first appellant satisfied the definition of 'cultivating tenant' as he was actually cultivating the land and the plaintiff agreed for the leasing out of the said item to the first appellant. 2. The second appellant failed to prove his tenancy agreement, implied or express, as there was no admission by the plaintiff as regards his status. 3. The lower appellate court erred in granting mesne profits in favour of the plaintiff in respect of the B schedule property as the first appellant did not trespass into the B schedule property.
Final Decision: The second appeal is allowed as far as the first appellant is concerned regarding item 3 of the A schedule and the same is dismissed as regards the second appellant. There will be no order as to costs in the second appeal.
JUDGMENT:- The defendants are the appellants. The suit was for possession and past and future mesne profits. The facts leading to this appeal are: The properties in plaint A and B schedules in Maduranthaganallur belong to the plaintiff who was cultivating the same personally. Under the original of Ex.A-1, registration copy of the mortgage deed, dated 2-9-1962, be usufructuarily mortgaged the A schedule properties consisting of three items, measuring 1.93 acres, to his sister Thangammal of Kammapuram, 16 miles away from the suit village. The first defendant who was working as kariasthar under the plaintiff and whose services were terminated in the beginning of 1962 due to faction in the village took the lands usufructuarily mortgaged to the sister of the plaintiff, viz, the A schedule lands, on lease, and cultivated the same. Then he trespassed into the B schedule lands taking advantage of the fact that he was a lessee of the A schedule lands. The said usufructuary mortgage was discharged on 3-10-1965 but the first defendant who was cultivating the lands of the A schedule as lessee under the usufructuary mortgagee and the B schedule lands as trespasser did not surrender possession of the land to the plaintiff in spite of notice, claiming that he was a cultivating tenant under him in respect of the third item in the A schedule, i.e., 72 cents, having taken it on waram seven years prior to the issue of the notice under Ex.A-2 dated 31-10-1966. The second defendant claimed to be the cultivating tenant of the remaining two items in the A schedule, i.e., items 1 and 2, measuring 2.21 acres, and the only one item in the B schedule measuring 99 cents since 1961, having taken it on waram from the plaintiff in fasli 1370. The plaintiff denied the claims of the defendants that they were cultivating the lands under him on waram basis or otherwise, and stated that he was entitled to possession of the suit properties.
2. The trial Court found that the first defendant was cultivating the A schedule properties under the mortgagee, Thangammal, that he was not cultivating item 3 of the A schedule under any tenancy agreement, under the plaintiff from fasli 1369 onwards on waram basis, that the 2nd defendant was not cultivating items 1 and 2 of the A schedule and the B schedule property under tenancy agreement with the plaintiff from fasli 1370 on waram basis, that there was no arrangement between the plaintiff and defendants, that the defendants were not cultivating tenants entitled to the benefits of Act XXV of 1955, that the Court of the District Munsif, Chidambaram, had jurisdiction to try the suit and that the plaintiff was entitled to possession of the properties with past mesne profits of Rs.2232. In that view, it decreed the suit as prayed for relegating the question of quantum of future mesne profits for decision in separate proceedings.
3. The defendants preferred an appeal to the Sub Court, Chidambaram. The Appellate Court, after elaborately discussing the evidence on record, found that the first appellant took the A schedule properties on lease from the usufructuary mortgagee, Thangammal, and that he did not trespass into the B schedule property thus, the lower appellate court came to the conclusion that since the first appellant is not the waramdar under the respondent, he was a trespasser in respect of 73 cents, of land in the third item of the A schedule, with the result it confirmed the judgment and decree of the trial court. Even though the lower appellate court found that the frist appellant did not trespass into the B schedule property, it held that the first appellant is liable for mesne profits even in respect of the B schedule property.
4. Aggrieved by the judgment and decrees of the courts below, the defendants have preferred the above second appeal.
5. The first defendant in his written statement alleged that he never worked as 'karvari' under the plaintiff at any time, that there was no faction in the village, that h
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