MURUGESAN Vs. SUNDARLAL

JUDGEMENT

(1.) ONE Thangavelu Mudaliar, who was the owner of a cocoanut tope, leased out the right to gather cocoanuts from the tope in favour of one Murugesan. This lease was evidenced by a registered lease deed. Murugesan clearly declared that he had no right of possession whatever in the land on which the cocoanut tope stands and the subject-matter of the lease in his favour was strictly limited to the enjoyment of the usufruct from the cocoanut trees, in consideration of payment of rent at a certain rate. The lease under this document was for a term of two years. But, even after the expiry of that period, the relationship of the parties continued as before as respects the cocoanut trees and the usufructs therefrom. After the death of Thangavelu Mudaliar, a similar arrangement was continued by his son and thereafter by his grandson, Sundarlal. On 28th November, 1977, Sundarlal issued notice to Murugesan demanding payment of rent which had fallen in arrears and asking him to render vacant possession of the cocoanut tope. On the failure of Murugesan to comply with the terms of the notice, Sundarlal filed a suit for recovery of possession of the tope from Murugesan. The main defence put forward by Murugesan to the suit was that it was not maintainable. According to Murugesan, his position under the terms of the lease was that of a cultivating tenant and he could not be evicted from the premises, otherwise than on the grounds and in the manner laid down by the Tamil Nadu Cultivating Tenants" Protection Act, 1955. The trial Court rejected this contention. On appeal, the appellate Court agreed with the trial Court's view. In this second appeal, learned counsel for the tenant Murugesan submitted that the lease in the present case was a lease of immovable property and a lease for agricultural purposes and hence the remedy of the landlord cannot be by way of a suit in ejectment, but only by way of appropriate proceedings for eviction under the Cultivating Tenants" Protection Act. Learned counsel relied on two decisions, both of them by learned single Judge of this Court. He cited Arumugha Vettian v. Angarmuthu Nattar 1for the position that where the subject-matter of a lease for a period of time is the right to collect the usufruct of cocoanut trees, such a right must be held to be in the nature of lease of immovable property. The other decision cited by the learned counsel is Renga Iyengar v. Sivaswami Pandaram 2 . In this case the right to the usufruct of cocoanut trees was leased out in favour of an individual, who was let into possession of the land over which the cocoanut trees stood. It was found that the lease did not include a demise of the land itself. The learned Judge, however, held that since the cocoanut trees were attached to the earth growing cocoanuts must be regarded as an agricultural operation, the entire lease must be regarded as lease of immovable property for agricultural purposes and a suit in ejectment must be preceded by a valid notice to quit.

(2.) LEARNED counsel for the landlord, however, submitted that the law recognised a distinction between lease of land, on the one hand, and a mere lease of the usufruct of the trees, on the other in the latter relationship there would be attached a licence to the lessee to enter upon the land, for the purpose of effectuating his lease, for getting at the usufruct of the trees and removing it. LEARNED counsel submitted that the very essence of a lease of land is, that the land should be demised by the lessor in favour of the lessee. A demise involves a transfer of an interest in land as such, and the delivery of possession of the land to the assessee. In the case of a lease of the usufruct of trees that does not involve any transfer of an interest in land, must less a demise, involving delivery of possession. LEARNED counsel pointed out that in the present case the lessee, Murugesan, had unequivocally declared in the lease deed that he had no interest whatever in the land on which the cocoanut trees stood.

(3.) LEARNED counsel for the landlord referred me to a decision of a Division Bench of this Court reported in Govindaswami v. Mahalakshmi Ammal 1 . In that case, there was a lease under which the lessee was entitled to collect the produce from trees, and the lease deed made it clear that the right created under the lease was only in respect of the trees and not in respect of the land. The question in that case was whether the lessee could claim the benefits of the Cultivating Tenants" Protection Act, 1955. The Division Bench held that the lessee cannot be regarded as a cultivating tenant. Although this judgment of the Division Bench does not draw pointed attention to the definitions of the statutory expressions "cultivating tenant" and "land" occuring in the Cultivating Tenants" Protection Act, the principle on which the Division Bench rendered their conclusion is one, which, with respect, I will adopt for the purpose of the present case, in addition to basing my decision on the words of the statutory definitions.