PANCHAPAKESA IYER Vs. SUBRAMANIA MOOPAN AND ORS.

JUDGEMENT

(1.) THE order impugned in this writ petition for the issue of a writ of certiorari is that of the Revenue Court which directed restoration to possession under Section 4 of the Madras Cultivating Tenants' Protection Act, 1955 (Act XXV of 1955). The first respondent alleged that he had been cultivating the land of an extent of 2 acres and 42 cents in the village of Allur, Tiruchirappalli taluk.

(2.) THE petitioner is the owner of the land now in controversy. The first respondent, Subramaniam, was in possession of this land as a cultivating tenant on 1st December, 1953. He filed an application out of which the present proceedings arise, R.A. No. 81 of 1956, in the Revenue Court, Tiruchirappalli, for restoration to possession of his holding under Section 4(1) of the Madras Act (XXV of 1955). The petitioner resisted this application but the same was allowed by the Revenue Court and it is the validity of this order that is challenged in this petition. A few facts are necessary to be stated to appreciate the point raised in the petition. The first respondent alleged that he was in possession of the land as a cultivating tenant on 1st December, 1953, the date which is crucial for the application of Section 4 of the Cultivating Tenants' Protection Act. The landlord denied it and stated one Sangili was the person then in possession. The Revenue Court, however, has found as a fact that the case set up by the landlord was not true and this being a finding of fact this contention has not been repeated before me. The petition must, therefore, proceed on the basis that the first respondent in whose favour of Revenue Court has passed an order was in possession of the property in dispute on 1st December, 1953. He continued to be in possession till 24th June, 1955, when by an order of a Magistrate under Section 145, Criminal Procedure Code, the lands were attached. Subsequently the landlord died on 13th July, 1955. Meanwhile when the lands were under attachment and were in the hands of the receiver appointed by the Magistrate they were leased to one Murugan for a period of one year. Murugan relinquished possession of the land at the end of the term in or about February, 1956. It was thereafter that the first respondent, the previous cultivating tenant filed this petition for restoration to possession. Section 4 of the Act under which this application was made runs:

(3.) THE second point urged was that subsequent to 1st December, 1953, that is in or about 1955 after the receiver appointed by the Magistrate took possession there was a lease of the land under which some other cultivating tenant was admitted to possession of the land and that such other tenant had cultivated the land before the commencement of the Act. It was urged that Murugan the person so admitted was a cultivating tenant and that he did not fall within the Proviso of Section 4(2)(iii) and that his admission to tenancy, even though he relinquished possession of the land subsequently, was a bar to the restoration of possession. I feel unable to accede to this argument either. I am inclined to read Section 4(2)(iii) as meaning that restoration to possession of a cultivating tenant will not be possible if there is another tenant who is bona fide in possession of land and who does not fall within the terms of the Proviso. If therefore the tenant had relinquished possession before the date of the application for restoration to possession there is no bar to the application of Section 4(1).