ORDER
V. Ratnam, J.
1. The plaintiff in O.S. No. 80 of 1987, District Munsif's Court, Sathiamangalam (O.S. No. 552 of 1980 (District Munsif court, Gobichettipalayam) is the petitioner in this Civil Revision petition directed against the orders of the Courts below holding that the civil Court has no jurisdiction to entertain the suit instituted by the petitioner.
2. In the course of the plaint in O.S. No. 80 of 1987, the petitioner obtained that the respondent herein is a tenant of his with reference to a field called Palayakalaianoor Boothi Thottam and that he is not a tenant of the filed in R.S.F.219/2. With reference to the two sheds bearing door Nos. 28 and 29, situated in R.S.F.219/2, the petitioner came forward with the case that the respondent requested the petitioner to permit him to occupy the sheds and that was accepted to and the occupation of the sheds by the respondent was permissive. The further case of the petitioner was that the sheds had become dilapidated and required repairs and reconstruction and when the respondent was asked to vacate in order to enable the petitioner to carry out the repairs, he not only declined to do so, but attempted to reconstruct the sheds at his own expense and with that view, had also gathered materials near the sheds. It was under these circumstances, that the petitioner instituted the suit seeking to recover possession of the sheds bearing door Nos. 28 and 29 from the respondent and for their incidential reliefs.
3. In the written statement filed by the respondent, while accepting that he is a tenant of the petitioner in respect of the Boothi Thottam, he claimed that the thatched shed in Boothi Thottam was unfit for use as residence and that as Boothi Thottam adjoined Bhavani river and got inundated owing to the floods in the river, the sheds bearing door Nos. 28 and 29, in Moolai thottam was given to the respondent in pursuance of a lease for his residence and occupation. The respondent also raised an objection that the Court has no jurisdiction to try the suit, as under the provisions of Tamil Nadu Act 40 of 1971, the jurisdiction of the Civil Court is ousted.
4. On the aforesaid pleadings, an additional issue was framed touching upon the jurisdiction of the Civil Court to entertain the suit and that was tried as a preliminary issue. The trial court as well as the lower appellate Court were of the view that the question of the occupation of a kudiyiruppu by an agricultural labourer on 19-6-1971, can be decided only by the authorities functioning under Tamil Nadu Act 40 of 1971 and not by the civil court and in that view, held that the civil court has no jurisdiction to entertain the suit. It is the correctness of this order that is challenged in this civil revision petition.
5. The courts below unfortunately have not bestowed any attention to the allegations in the plaint and also the admission in the written statement. It is not in dispute that the question of jurisdiction has to be decided on the basis of the averments in the plaint. Therein, the petitioner has clearly stated that the respondent is not a tenant of the petitioner in respect of R.S.F.219/2, but that the sheds bearing door Nos. 28 and 29 therein were permitted to be occupied by the respondent. It is further seen from the cause of action paragraph in the plaint that permission was so granted to the respondent in 1974 and that was terminated on 6.3.1980. In the written statement, the respondent had clearly accepted that he is a tenant of the land called Boothi Thottam and he had not refuted the statement in the plaint that he is not a tenant of the petitioner in respect of R.S.F.219/2. Apart from it, in paragraph 4 of the written statement, the respondent had clearly admitted that the sheds bearing door Nos. 28 and 29 situate in Moolai Thottam were given under a lease to him for his residence and occupation. It is thus clearly made out on the pleadings that the sheds bearing door Nos. 28 and 29 have nothing whatever to do with Boothi Thottam, in respect of which alone the respondent has been accepted to be a tenant. In other words, the occupation of the sheds in question is not in any manner referable to the tenancy of the respondent in relation to Boothi Thottam. The question is, whether even when the two sheds have no connection whatever with the lands leased to the respondent but are otherwise in his occupation permissively, according to the plaint, he could be permitted to raise an objection regarding the jurisdiction of the court on the ground that the Provisions of Tamil Nadu Act 40 of 1971 would oust the jurisdiction of the civil courts. In my view, he cannot put forth such a plea after accepting the position that he was a tenant only in respect of Boothi thottam and the two sheds bearing door Nos. 28 and 29 situate in Moolai Thottam, which have nothing whatever to do with Boothi Thottam were given to him for his residence and occupation pursuant to a lease. That this is so is now ell settled by a series of decisions of this Court. In Narayana Pillai v. Naganatha Iyer, : (1981)1MLJ506 it was held that the definition of 'Kudiyiruppu' in Section 2(6) of Tamil Nadu Act 40 of 1971 does not apply to a pucca building which an agriculturist may take on lease and that to hold that the site of any dwelling house or hu(SIC) is a kudiyiruppu, one has to ascertain whether the occupant, either as a tenant or as a licensee, is an agriculturist, or an agricultural labourer and the presumption raised in Explanation I to Sub-section (8) of Section 2 of the Act cannot avail a party who claims to be an agriculturist merely on the basis of a contention that the site in his occupation is a kudiyiruppu and that the claim that the site of the dwelling house or hut is a kudiyiruppu can be put forth only if he is a tenant or a licensee in respect of the site alone. Manickam v. Dharmapuram Adheenam : (1984)2MLJ189 lays down that the definition 'Kudiyiruppu' contemplates the site of a dwelling house and it will not take within its ambit a building and where a building is demised, there is no scope for applying the provision of Tamil Nadu Act 40 of 1971, at al all. In Rasu Pillai v. Additional Tahsildar (kudiyiruppu) Mayiladuthurai (1985) 2 M.L.J. 320 : 98 L.W. 424 it was pointed out that the object of Tamil Nadu Act 40 of 1971 is not to cover and take in the demise of premises consisting of site and superstructure as a single unit, either on lease or licence, but that the demise ought to be of the site alone. It was also further pointed out that Section 2(8) of the Act has got a purpose to serve, namely, where the superstructure belongs to any person other than the occupant of a kudiyiruppu, such superstructure shall also vest in the occupant as per the terms of that section., but there cannot be any extension of that purpose to say that even though the demise in favour of the occupant was not only of the site but also of the superstructure as a single unit, the provisions of the Act would be attracted and the occupant could claim the rights conferred by the Act. In view of the allegations in the plaint, in this case, and also the stand of the respondent in his written statement that what was demised were two sheds under a lease, it follows that there is no scope at all for invoking the provisions of Tamil Nadu Act 40 of 1971 outing the jurisdiction of the civil court.
6. Consequently, the civil revision petition is allowed and the orders of the Courts below are set aside and the trial court is directed to entertain O.S. No. 80 of 1987 (O.S. No. 552 of 1980 District Munsif's court, Gobichettipalayam) on its file and deal with and dispose of the same on merits. There will be no order as to costs.