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High Court of Judicature at Madras
THE HONOURABLE MR.JUSTICE M. JEYAPAUL
Balu Pillai @ Balasubramania Pillai & Others
Versus
Mahadevan & Others
Second Appeal Nos.1059 of 1995 and 1390 of 1995
Decided On : 17-11-2009
(B) Tamil Nadu Cultivating Tenants Protection Act, 1955 (25 of 1955)-Sec. 2, 6A- Agricultural land-Tenant-Cultivating tenant-Government servant-Personal labour-A Government servant cannot claim to have contributed his physical labour for the cultivation of an agricultural land when he is actually in service and so cannot be a "cultivating tenant" to avail protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
A person, who is a Government servant governed by the Government Servants Conduct Rules can never come under the purview of section 2(b) of the Tamil Nadu Cultivating Tenants Protection Act, 1962. The logic behind the decision is that a Government servant cannot claim to have contributed his physical labour when he is actually in service for the cultivation of the subject property. Defendants 1 and 2 being Government servants cannot be cultivating tenants. When defendants 1 and 2 were not cultivating tenants, they have no right to transfer the leasehold right with respect to the first item of the suit property in favour of the fifth defendant.
Para 16
(C) Tamil Nadu Cultivating Tenants Protection Act, 1955 (25 of 1955)-Sec. 2, 6A- Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (10 of 1969).-Sec.16A-Agricultural land-Tenant-Cultivating tenant-Civil Court-Jurisdiction-Civil Court has jurisdiction to decide whether the person in possession of a land is a cultivating tenant or not and grant relief to the land owner in case it decides that the person in possession is not a cultivating tenant.
Following the aforesaid ratio rendered by the Supreme Court, this court finds that the civil court has got jurisdiction to decide the relationship of the parties concerned as to whether they are the cultivating tenants under the scope and ambit of the Tamilnadu Cultivating Tenants Protection Act, 1955 and grant the relief as sought for once it has come to the decision that the defendants are not cultivating tenants of the suit properties and that they are not entitled to protection under the aforesaid Act. Para 22
(D) Tamil Nadu Cultivating Tenants Protection Act, 1955 (25 of 1955)-Sec. 2, 6A- Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (10 of 1969).-Sec.16A-Agricultural land-Tenant-Cultivating tenant-Transfer of lease-Sub-tenant-Recorded cultivating tenant has no right to alienate his leasehold right to a third party though he has got a right under the Act to sub-let the property to a third party.
As the special Acts referred to above do not contemplate the right of transfer of the leasehold rights in favour of third parties, it is held that the recorded cultivating tenant has no right to alienate the leasehold right to a third party though he has got a right under the Act to sub-let the properties to a third party. Ignoring the exclusive right of the landlord, the recorded cultivating tenant cannot simply sell away his leasehold rights in favour of a third party. Retaining his leasehold right, he can sub-let the premises to a third party. Para 24
The law also, as stated above, does not permit the wholesale alienation of the leasehold right by a recorded cultivating tenant in favour of a third party behind the back of the landlord. Para 25
(E) Code of Civil Procedure, 1908 (5 of 1908)-Sec.11 -Res judicata- Dismissal of suit-Necessary party-Non-joinder of party-If the former suit is dismissed without any adjudication on the material directly and substantially in issue, on the ground of non-joinder of necessary parties, the decision arrived at in the former suit will not operate as res judicata.
The principle of res judicata would apply only if the material directly and substantially in issue in the former suit has been heard and finally decided by a competent court. The court should have applied its judicial mind and adjudicated the issue finally. But, if the former suit is dismissed without any adjudication on the material directly and substantially in issue, on the ground of non-joinder of necessary parties, the decision arrived at in the former suit will not operate as res judicata. Para 28
In the instant case, the issue whether defendants 1 to 4 were the cultivating tenants or not, though raised before the Revenue Court, was not determined finally applying its mind. The said proceedings initiated by the plaintiff was dismissed only on the ground that there was non-joinder of necessary parties. Therefore, by no stretch of imagination, we can come to a decision that the suit is hit by the principle of res judicata. Para 31
(F) Code of Civil Procedure, 1908 (5 of 1908)- O.41-Evidence-Additional evidence-Lacunae-Filling up- Additional evidence cannot be permitted to be let in, in an appellate stage to fill up the lacunae or gap in the evidence already let in.
The parties cannot be permitted to introduce additional evidence to fill up the lacunae or gap in the evidence already let in. Para 36
Second Appeal No.1059 of 1995 is filed against the judgment and decree in A.S.No.45 of 1995 preferred against the judgment and decree in O.S.No.132 of 1992 and Second Appeal No.1390 of 1995 is filed against the judgment and decree in A.S.No.52 of 1993 preferred against the judgment and decree in O.S.No.132 of 1992.
2. The first respondent, who is the plaintiff in the suit filed the suit in O.S.No.132 of 1992 praying for recovery of possession and also for mesne profits. The Trial Court chose to decree the suit for recovery of possession, but negatived the prayer for mesne profits and as a result of which, the first respondent, who is the plaintiff in the suit preferred A.S.No.52 of 1993 challenging the dismissal of the suit with respect to the prayer for mesne profits and the appellants herein, who are defendants 5 to 7, preferred A.S.No.45 of 1993 aggrieved by the decree granted in favour of the first respondent herein for recovery of possession. The first appellate court was pleased to allow the appeal preferred by the plaintiff in A.S.No.52 of 1993 and dismissed the appeal preferred by defendants 5 to 7 in A.S.No.45 of 1993. In short, the suit filed by the first respondent/plaintiff was allowed in its entirety at the appellate stage and therefore, defendants 5 to 7 have preferred the present appeals.
3. Defendants 1 to 4, who figure as respondents 2 to 5 before this court, remained absent. The plaintiff has contended that the suit properties originally owned by one Devasundari Ammal and the same were purchased by the plaintiff for valuable consideration under a registered sale deed dated 5. 1979. Devasundari Ammal leased out the suit properties to one Karuthan even prior to the sale in favour of the plaintiff and the said Karuthan was a recorded tenant of the suit properties. Karuthan died in the year 1971. Defendants 1 and 2 are his sons and the third defendant is his widow and the fourth defendant is his married daughter. The third defendant was old and infirm and was blind and the fourth defendant was married off. The first defendant was employed in the Agriculture Department and the second defendant was employed in the Postal Department. The fourth defendant was living at Kodavilagam near Manganallur. None of the heirs of Karuthan contributed his physical labour in the cultivation of the suit properties. However, the first and second defendants purportedly conveyed their tenancy rights in respect of the first item of the suit properties in favour of the fifth defendant under a registered deed dated 6. 1979 for a consideration of Rs.1600/=. The fifth defendant was also employed at Neyveli and had not cultivated the first item of the suit properties. The sixth defendant, who is the divided brother of the fifth defendant, is cultivating the first item of the suit properties with hired labour. The possession of the second item of the suit properties was given to the seventh defendant by defendants 1 and 2 and the seventh defendant is actually cultivating the second item. None of the defendants who are in possession of the suit properties, is a cultivating tenant and entitled to the benefits of the Act 25 of 1955. Eviction proceeding initiated as against the first, second and fifth defendant before the Revenue Court was dismissed on the ground that the other legal heirs viz., the widow and daughter of the deceased Karuthan were not impleaded as necessary parties to the said proceeding. With the above pleadings, the plaintiff has sought for recovery of possession from the defendants.
4. Defendants 1 to 4 remained ex parte. Defendants 5 to 7 resisted the claim of the plaintiffs on the ground that the legal heirs, who inherited the tenancy rights of Karuthan, transferred the tenancy right in favour of the fifth defendant. It is contended that the heirs of Karuthan continued to cultivate the suit properties by contributing their physical labour even after the demise of Karuthan. The fifth defendant, on transfer of
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