A BHASKARAN Vs. SELLAPPA GOUNDAN

JUDGEMENT

(1.) THIS revision petition is filed against the order of the District Munsif, Sankari, at salem, transferring the records in O. S. No. 67 of 1957, on his file to the Estates land Act Tribunal, Vellore, under Section 11 of Madras Act XXX of 1956. The plaintiffs are the petitioners. O. S. No. 67 of 1937 was filed for ejectment of and recovery of mesne profits from, the defendants. The plaintiffs claimed that the suit properties belonged to them absolutely, that they granted a lease of the same in the year 1949 to the first defendant (defendants 2 to 4 being his sons) and that the aforesaid lease was renewed thereafter. The renewed lease is stated to have terminated on 12-4-1953 and as the defendants refused to hand over possession, the suit was filed for recovery of possession and mesne profits.

(2.) THE defendants contested the suit. They denied the plaintiffs' title to the property and also the lease. They further stated that the suit properties were ryoti lands in the whole inam village of Komarapalayam Agraliaram, in which they have the kudiwaram interest from the time of their ancestors, and that the plaintiffs being only the, landholders could not evict them. Various issues were framed in the suit. For the present purpose issues 7 to 9 are alone relevant. They are: "7. Is Komrapalayam Agaharam village not an estate as defined in the Madras estates Land Act 1 of 1908 as amended? 8. Are the suit lands ryoti lands? 9. Whether the defendants 2 to 4 have occupancy Or kudiwaram rights in the suit lands?" The defendants, thereafter, filed I. A. No. 2434 of 1957 in the lower court for transferring the suit under Section 11 of madras Act XXX of 1956. The lower court held that as it was incumbent on the court to decide whether the suit lands are situate in an estate or not, the sit should be transferred to the Tribunal. The plaintiffs have filed the present revision petition against that order.

(3.) THE plaintiffs' case is that the village, in which the land is situate, is not an estate, and even if it were so, they had the full right, that is both the melwaram and kudiwaram interests in the suit property which would entitle them to evict the defendants. On the other hand the defendants claim to have occupancy rights in the lands, as the village according to them is an estate and the suit lands ryoti. On an analysis of the contention, it would follow that (1) if the village is an estate and the suit lands arc ryoti lands, the suit would have to be dismissed, as the civil court will have no jurisdiction to entertain the suit, (2) if the village is an estate but the suit lands arc not ryoti lands but those in which the plaintiffs have both melwaram and kudiwaram interests or at least kudivaram interest in the lands, the suit will have to succeed, and that (3) if the village is not an estate at all, and the defendants' right was only under the lease granted by the plaintiffs, which subsequently came to an end, a decree of possession should follow. Therefore, the right of the defendants to retain possession would depend not only on the fact of the village being an estate but on he suit lands being ryoti lands, in which they have an occupancy right. It is true that in order to prove that the lands are ryoti lands it should first be shown that the village in which they are situate is an estate. But that is only preliminary or incidental step to ascertain whether the lands are ryoti lands. The contention on behalf of the defendants is that under Section 11 of Madras Act xxx of 1956, the court has no option but to transfer the suit to the Tribunal once there is an issue in the case involving the determination as to whether any area is situate in an estate, regardless of the fact whether such. issue is necessary or merely incidental to the case. It may be noticed that issues 8 and 9 cannot come within Section 11 of the Estates Land Act. The only issue on which the defendants could rely is issue No. 7 under which it has got to be decided whether the suit village is an estate or not. Before considering the contention raised on behalf of the parties, it is necessary to set out Section 11 (1) of Madras Act XXX of 1956.