NARAYANA PADAYACHI Vs. SUNDARALINGAM AND ANR.

JUDGEMENT

(1.) THIS appeal must succeed on the short ground of jurisdiction. Before dealing with it, the material facts may be noticed. The appellant was let into possession by the respondents into an extent of 54 cents of dry land under an agricultural tenancy. The respondents sued in Original Suit No. 244 of 1951 on the file of the Court of the District Munsif at Mayuram in ejectment, which ended in a compromise decree, dated 17th April, 1952. This decree provided that the appellant should vacate and deliver vacant possession after five years, that is, on 17th April, 1957. The respondents filed on 13th December, 1961 the execution petition out of which this appeal arises. Execution of the compromise decree was resisted on the grounds (i) the appellant was a cultivating tenant (ii) he was entitled to protection under the provisions of the Kudiyiruppu Act and (iii) the petition was barred by limitation. The executing Court held on the first point against the appellant, or the second point it found that he was entitled to protection in respect of only seven cents of land and on the third the petition was barred by limitation. The execution petition was therefore dismissed. On appeal by the respondents, the lower appellate Court disagreed with the trial Court and found that during the absence of the appellant during a period of two years, his sons were not proved to have cultivated the land and that in view of this the appellant had ceased to cultivate the land for two years within the meaning of Section 3(2)(b) of the Madras Cultivating Tenants Protection Act, 1955. On the Second point, the lower appellate Court concurred with the finding of the executing Court, but, on the last point, the lower appellate Court again disagreed with the Court below it and held that the execution petition was not barred. On that view, the lower appellate Court ordered eviction of the appellant from the land except in respect of seven cents.

(2.) BEFORE this Court, Mr. K.S. Naidu, learned Counsel for the appellant has not canvassed the view of the lower Court on limitation, but has confined his argument to three points (i) the general trend of the evidence for the appellant established that his sons did as a matter of fact cultivate during his absence of two years, (ii) even assuming that this was not so there could be no question of automatic eviction and the respondents should establish that the appellant had evinced an intention to abandon cultivation altogether and (iii) in any case, even on the assumption that the appellant came within the purview of Section 3(2)(b), the remedy of the respondents lay with the Revenue Divisional Officer and the civil Court will have no jurisdiction to evict the appellant by execution of the decree.

(3.) THE lower appellate Court observed that Section 3(2)(b) was satisfied because the tenant had admittedly ceased to cultivate 'the' land for two years and had not substantiated by proof that during his absence during that period the land was subject to any cultivation by any members of his family. This appears to be a misdirection on its part as to the scope and effect of Section 3(2)(b). The Court below failed to appreciate that what it has to look for is the intention on the part of the tenant to abandon cultivation for ever and never revert to it. In feet beyond quoting Section 3(2)(i) it does not give a precise finding that the appellant had as a matter of fact altogether ceased to cultivate the land in the sense this Court has interpreted that provision.