R PARTHASARATHY DIED Vs. ARUMUGHA PADAYACHI

JUDGEMENT

(1.) THE plaintiff is the appellant. Plaintiff filed the suit for recovery of possession of suit property from the defendant and for recovery of past and future mesne profits. Plaintiff is the owner of the suit property, which is a coconut thope. According to the plaintiff he has leased out the suit property to the defendant for a period of five years as per the terms and conditions incorporated in the document dated 6.2.1971 executed between the plaintiff and the defendant. According to the said document, the lease amount was Rs. 450/- per year, payable every year in advance. THE defendant shall be entitled to take the coconut and dry leaves, palai, pannadai, etc. However, he should not remove the green leaves from the trees. When the defendant bales out the water for the up-keep of the coconut trees, he may incidentally raise dry crops on the land. This incidental cultivation win not give him any right under the Cultivating Tenants Protection Act. THE defendant should deliver possession of the suit property to the plaintiff on the expiry of the lease period. THE defendant took possession of the suit property for a period of five years, paid rent for those years. However, the defendant refused to hand over possession to the plaintiff of the coconut grove after the expiry of the lease period. THErefore, the plaintiff sent a notice to the defendant on 23.2.1976, calling upon him to deliver possession of the suit coconut grove and also demanding the mesne profits. THE defendant sent a reply notice claiming right under the Cultivating Tenants Protection Act. THE plaintiff filed a petition in T.N.C.T.P. No. 35 of 1976 before the Authorised Officer, Cuddalore for the eviction of the defendant. THE Authorised Officer held that the Cultivating Tenants Protection Act will not apply to the defendant and hence dismissed that application on 19.3.1977. THE document dated 6.2.1971 though named as lease deed is only a licence. When the licence was cancelled as and from 1.2.1976 as per the terms of the document, the defendant has no right to continue in possession from that date. Even assuming that the suit document is a lease deed, the lease came to an end on 1.2.1976 by efflux of time. Hence, the possession of the defendant will be that of a trespasser from 1.2.1976 onwards. THErefore, the plaintiff has filed the suit for recovery of possession of suit property from the defendant and also for recovery of past and future mesne profits.

(2.) THE defendant filed a written statement. THE case of the defendant is as under:? THE civil court has got no jurisdiction to try the suit and as such the suit is liable to be dismissed. THE property that was leased out is not only the thope but also the dry land which is clear from the recitals contained in the lease deed. THE defendant is a lessee and he is a tenant holding over the property after the expiry of the lease period. He is not a licensee as alleged by the plaintiff. He is entitled to the protection under the provisions of the Tamil Nadu Cultivating Tenants Protection Act. It is not correct to state that the defendant removed the coconut trees from the coconut thope. He was raising groundnut and ragi crops on the punja land. THE plaintiff filed a petition against the defendant for eviction before the Authorised Officer, Cuddalore. THE finding given by the Authorised Officer that the defendant is not a cultivating tenant is not binding upon him. He is not a trespasser. THE defendant filed an additional written statement stating that the suit claim is barred by res judicata and the suit is bad for want of proper notice to quit. It was, therefore, pleaded that the suit is liable to be dismissed. On considering the facts arising in this case, the trial court held that the defendant is only a licensee and he is not entitled to protection under Tamil Nadu Cultivating Tenants Protection Act and there is no evidence that the defendant had cut and carried away 78 coconut trees. Accordingly, the trial court decreed the suit for recovery of possession of suit property and also decreed for the past mesne profits claimed at Rs. 2,000/- THE trial court dismissed the suit claim for future mesne profits and for recovery of Rs. 1,950/- being the value of trees said to be cut and carried away by the defendant. However, on appeal, the first appellate court considering the facts arising in this case, came to the conclusion that the defendant is a lessee and not a licensee. According to the first appellate court the defendant is entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act. THE first appellate court pointed out that the plaintiff ought to have pursued the matter further and filed an appeal against the order passed by the Authorised Officer. But this was not done by the plaintiff. On these reasonings, the first appellate court reversed the judgment and decree of the trial court and dismissed the suit with costs. It is against this judgment and decree, the plaintiff is in appeal before this court.

(3.) IN this context, it is significant to note that in 1965 I MLJ 170 in the case of Arumugha Vettiyan v. Angamuthu Nattar 1990-2-M.L.J. = 1990-1-L.W. 186 this Court has pointed out that when a person has been given right to cut and remove the coconuts from a grove, his right to enter upon the land would be in the nature of a licence, if it is the case, where he is to remove the goods immediately upon the grant of right but where he is entitled to usufruct from the trees spread over a period of time, during which period the usufructs grow out of the soil then the right to collect the usufruct is in the nature of immovable property and would accordingly amount to a lease. It was thus pointed out that such a grant would create an interest in the land and the transaction was a lease.