SATHU KONAR Vs. DURAISAMI

JUDGEMENT

(1.) This Civil Revision Petition raises the question as to how far interference in revision is possible under Sec. 115, Civil Procedure Code, read, with Sec. 6 -B of Madras Act XXV of 1955 as amended, when the lower tribunals had to deal with jurisdictional facts and such tribunals have arrived at certain conclusions which appear to be incorrect. The landlord is the petitioner before me. The respondent claims to be his tenant. The respondent states that he called upon the landlord to be present at the harvest for. purposes of ascertainment and receipt of his share of the produce, and as the petitioner failed to be present either by himself or by his authorised representative at the time of such harvest he bad to undertake the harvest of the produce by himself. The tenant's further case is that he sold the paddy at Rs. 7 a kalam and deposited the value of the rent into Court and has filed this petition under Sec. 3(3)(a) of Act XXV of 1955. The landlord in his counter states that the respondent is not a tenant, much less a cultivating tenant, that he is running a tea shop in the village, and in any event the deposit is inadequate. The Revenue Court accepted the contentions of the tenant and allowed the petition. The tenant was also granted time to deposit the deficiency in the rent. As against this order, the revision petition is filed.

(2.) Mr. Rangachariar appearing for the landlord invited my attention to Exhibit B -l a varam letter executed by the father of the tenant. This relates to the fasli immediately prior to the fasli for which the respondent purported to deposit a certain amount, alleging that he is a direct tenant under the petitioner. It is not necessary to go into the question whether the quantum of rent deposited by the tenant is correct or not. During fasli 1371 and for prior years, it is the indisputable case of the parties that it was the father of the respondent before me who was the tenant and that the respondent, as son, was assisting his father in the actual cultivation of the land. This arrangement between the petitioner and the father of the respondent came to an end in fasli 1371. It is not clear as to why a fresh letter of attornment from the respondent or a fresh varam letter was not taken from the father for the subsequent faslis. It is not also the case of the tenant that he is continuing in occupation of the lands after the expiry of a tenancy agreement in his favour prior to that period. There is, therefore, nothing in writing to establish that there was the relationship of landlord and tenant between the petitioner and the respondent. I have carefully considered the evidence let in this case and I am not satisfied that the tenant had proved and established such a legal relationship between himself and the petitioner either expressly or by necessary implication. No doubt, the P. Ws. would say that they have seen the respondent cultivating the land for the last five years. Obviously such cultivation should be deemed to be on behalf of the father of the respondent who was admittedly the tenant for fasli 1371 and prior thereto. I am of the opinion that a mere collaborator or a person who renders assistance to a cultivating tenant as defined in Sec. 2 of the Madras Cultivating Tenants Protection Act, would not by himself, by reason of such collaboration or assistance become a cultivating tenant himself. It is not clear whether the father is continuing in possession of the land after the determination of the tenancy agreement. The respondent who alleges that he is a cultivating tenant should prove it by acceptable evidence. The following passage in Joseph Constantine Steamship Line Ltd. v/s. Imperial Smelting Corporation Ltd. L.R., (1942) A.C. 154, rendered by Viscount Maugham is apposite for purposes of this case,

(3.) The Supreme Court in Narayan v/s. Gopal : [1960]1SCR773 , has held that the burden of proof inter alia means that a party is required to prove an allegation before he could obtain judgment in his favour. Bearing the above principles in mind and having sifted the evidence adduced by the tenant -respondent, I do not find any clinching evidence on the side of the respondent to establish the jural relationship of landlord and tenant between the petitioner and the respondent. Proof of such relationship is essential so as to vest the jurisdiction in the Revenue Court to deal with a petition under the Madras Cultivating Tenants Protection Act. This is what is ordinarily and commonly termed as a jurisdictional fact. If, therefore, such a jurisdictional fact had not existed, the Revenue Court necessarily had no jurisdiction to entertain the application, see M.L. and B. Corporation v/s. Bhatnath : [1964]3SCR495 , Further the Supreme Court in Rama Iyer v/s. Sundaresa : [1966]3SCR474 , observed as follows: