SAROJINI AMMAL Vs. K. CHELLIAH PILLAI

JUDGEMENT

(1.) UNDER an agreement dated 17th November, 1966, the petitioner and the first respondent agreed that the first respondent could enter upon her land of an extent of about 11 acres in Uthamapalayam, Madurai and that whilst she be enabled to raise coffee, orange, pomegranates etc., crops in the same land, the first respondent would equally be permitted to plant banana trees and enjoy the usufructs therefrom. It is also in the contemplation of parties what whilst the first respondent enters the land for purposes of enjoying the usufructs of the banana crop raised by him, he should not in any way disturb the other crops which the petitioner might raise in the very same land. Almost at the end of the period provided for under the arrangement as above, the first respondent apparently intended to get a permanent right in himself under the Madras Cultivating Tenants' Protection Act and with that object in view, he applied to the Record Officer, Periakulam requesting him to record him as a cultivating tenant of the land owned by the petitioner. He succeeded before the Record Officer. The petitioner questioned such recording by the Record Officer under the provisions of the Act, but was not successful. The petitioner, therefore, filed an appeal as provided under the Act to the Special Deputy Collector, Madurai, who agreed with her that the respondent was not a cultivating tenant as no interest in the land was at any time intended to be transferred under the arrangement referred to above. On revision as against this order to the second respondent, he differed from the Special Deputy Collector and took the view that an interest in the land was transferred under the arrangement of 1966 and that the first respondent was entitled to be recorded as a tenant within the meaning of the Tamil Nadu Cultivating Tenants' Protection Act, 1955. It is as against this order that the present Writ Petition has been filed.

(2.) IN the order challenged, the second respondent while stating the features of the arrangement between the petitioner and the first respondent came to the conclusion that the possession of the land was handed over to the first respondent for cultivating the land. He conceded that the petitioner had the concurrent right to plant coffee seeds and to grow other fruit -bearing trees in the land along with the operations which the first respondent could do on the land, which he characterised as agricultural operations. But this feature by itself, according to the second respondent, would not militate against his conclusion that what was agreed to be transferred under the arrangement was an interest in the land and not a licence to the first respondent to use the land for purposes of raising banana plants and enjoy the usufructs therefrom. The petitioner raised incidentally a plea that the 1st respondent has surrendered his right under the arrangement some time prior to the application made by him for recording his rights under the Act. This was, however, disbelieved and as a question of fact, it was found that the first respondent was enjoying the rights which he had under the arrangement on the date when he sought for himself being recorded as a cultivating tenant in the public records. This finding cannot be challenged in this Court.

(3.) IN the instant case, the first respondent was unable to satisfy the appellate authority, namely, the Special Deputy Collector that a particular piece of land out of 11 and odd acres belonging to the petitioner could be carved out from the totality of the land and be said to be 'the land' which has been leased out or demised to him for the purpose of planting banana plants and enjoying the banana usufructs therefrom. Unless there is acceptable proof that a particular piece of land which is decipherable or identifiable and which could be specified is the subject matter of a demise and unless the person who claims a right as a cultivating tenant establishes that his physical labour involving agricultural operations is with reference to such specified and identified land, he cannot be said to be a person having an interest in immovable property or 'the land'. This is the essence and foundation for the proof and establishment of a right within the meaning of Section 2 (aa) of the Act. It, therefore, follows that if a person claiming such a right is unable to point out clearly that a piece of land is in his sole custody for purposes of being operated upon and for himself utilising the same for his agricultural operations, it cannot be said that there is a relationship of lesser and lessee as is ordinarily understood under the provisions of the Transfer of Property Act as between that person and the owner of that land. Whatever may be the nature of the right as between such two persons, it falls short of a right as a lessee with reference to immovable property. Only if an interest in immovable property is transferred by an instrument, express or otherwise, and that right was so granted by the owner of the land to enable the other person to use it for agricultural purposes, he cannot claim right as a cultivating tenant as well.