R SARAVANAN Vs. VEDARANYASWARASWAMI DEVASTANAM

JUDGEMENT

(1.) The plaintiff, who could not succeed in either of the courts below, has come up by way of second appeal. The suit O. S. No. 338 of 1975 on the file of the learned District Munsif, Mayuram, was one for a permanent Injunction contending that a bare right to pluck cocoanuts would amount to a lease, and, so long as the lease is subsisting between the parties, he would be entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act and therefore, he could not be evicted nor could his enjoyment be disturbed. In as much as there is interference with his enjoyment by the first defendant Devasthanam, it had become necessary to file the suit. In defence, it was contended that a bare right to pluck cocoanuts would not amount to lease but a licence. This defence prevailed with the courts below and hence the second appeal.

(2.) What is urged before me by the learned counsel for the appellant is, having regard to the rulings in Venugopala Pillai v. Thirunavukkarasu, (1948) 2 Mad LJ 155: (AIR 1949 Mad 148) and Ranga Iyengar v. Sivaswami Pandaram, which are almost on all fours to this case the appellant is entitled to succeed. A right to pluck cocoanuts cannot be called a mere licence, because having regard to the definition of immovable properties of S. 3, clause (26) of the General Clauses Act, it would constitute a benefit arising out of land. Therefore, once there is a transfer of interest in the immovable property which would take within it the benefit arising out of that, the appellant's case ought, to have been accepted. As against this, the learned counsel for the respondents, strongly, relying upon the decision reported in Venkatachalapathi Odayar V. Rajalakshmi Ammal, (1981) 1 Mad LJ 11, states that such a right would not amount to a lease but a licence. There also what was conferred was a mere right to Pluck cocoanuts without any interference (interest?) in the property.

(3.) Having regard to the above arguments, the only question that arises for my determination is, where a right to pluck cocoanuts is conferred upon the transferee, whether it would amount to, a lease or licence? In (1948) 2 Mad LJ 155: (AIR 1949 Mad 148), the question arose whether right to tap the cocoanut trees for toddy would amount to a licence or not. In answering this, the Division Bench of this court, consisting of Raiamannar, Officiating C. J, as he then was, and Yahya Ali J. observed at page 157-