Senniappa Nadar Vs. T.R. Sarojini Ammal and anr. - Court Judgment

Excerpt:
- orderp. sathasivam, j. 1. the defendant is the appellant. the respondents filed o.s. no. 505 of 1977 on the file of the district munsif's court, cuddalore for recovery of possession. the plaint averments are as follows:the first plaintiff is the wife of the second plaintiff. the suit property belongs to the second plaintiff. the second plaintiff leased the right to collect the usufructs of the coconut trees in the suit property to the defendant, on an annual lease amount of rs. 3,100. the defendant had not paid the lease amount from karthigai, 1973 and a suit was filed for the recovery of lease amount. the defendant is only a licensee in respect of the land. the plaintiff's issued a notice calling upon the defendant to vacate the property and hand over the possession. the defendant sent a reply with incorrect allegations stating that he is a cultivating tenant. with these averments, the plaintiff filed the present suit.2. the defendant in his written statement as well as in the additional written statement contended in the following manner: the entire property was leased out to this defendant. it is incorrect to state mat he is only a licensee in respect of the land. the defendant raised plantain crop in the suit property. the lease amount is only rs. 1,000. there is no valid termination of the lease. this defendant is a cultivating tenant in respect of the entire property and is entitled to the benefits of tamil nadu occupants kudiyiruppu (confermant ownership) act, 1971. with these averments, the defendant prayed for the dismissal of the suit.3. in support of the plaint averments, the 2nd plaintiff, t.r. ramamurthy was examined as p.w.1 and he has also marked exs.a-1 to a-3.4. on the other hand, the defendant himself was examined as d.w.1 and he has not produced any document to substantiate his defence. the commissioner's report and the plan were marked in exs.c-1 and c-2.5. it is the evidence of p.w.1 that as per the lease agreement, between the parties, the defendant is entitled to collect only the usufructs and that he is only a licensee in respect of the land. on the other hand, it is the evidence of the defendant that he is a cultivating tenant in respect of the land and coconut trees standing therein. admittedly, in respect of the above transaction, there is no written document. on the basis of the oral evidence of p.w.1 and d.w.1 as well as exs.c-1 and c- 2, learned district munsif, cuddalore, has held that what was granted to the defendant was only a licence in respect of the land and rejected the contention of the defendant that he is a cultivating tenant in respect of the suit land. the trial court has also rejected another contention of the defendant that he is entitled to the benefits of tamil nadu occupants kudiyiruppu (conferment ownership) act, 1971. by judgment and decree dated 14.7.1981, learned district munsif, cuddalore decreed the suit as prayed for.6. against the judgment and decree of the trial court, the unsuccessful defendant filed an appeal in a.s. no. 202 of 1981 before the district court, cuddalore. learned district judge, in the absence of any document regarding the right to pluck coconuts, on the basis of the oral evidence of p.w.1 and d.w.1 held that the defendant is only a licensee with the right to collect the usufructs of coconuts on the suit land and he had no other interest in the suit land, except the right of access to the coconut trees, consequently rejected all the contentions of the defendant and dismissed the appeal, confirming the judgment and decree of the trial court.7. against the concurrent findings of the courts below, the defendant filed this second appeal, s.a. no. 129 of 1983. while entertaining the second appeal, the following substantial questions of law were framed by this court:1. whether the right to pluck coconuts conferred upon the appellant will amount to a lease or licence? 2. whether the judgment and decree of the lower appellate court are not opposed to the principles laid down in r. saravanan v. sri vedaranyeswaraswami devasthanam, : air1982mad386 .? 8. mr. n. ishtiaq ahmed, learned counsel for the appellant, relying upon a decision rendered in r. saravanan v. sri vedarnyeswaraswami devasthanam, : air1982mad386 , argued that what was granted to the defendant is only a lease. in other words, he vehemently contended that the right to pluck coconuts is only a lease, but not a licence as observed by the courts below. on the other hand, mr.k.v. sundararajan, learned counsel for the respondents repelling the above contention of the appellant cited the decisions in (i) govindaswami vanniar v. mahalakshmi ammal, 76 l.w. 378, (ii) venkatachalpathy udayar v. rajalakshmi ammal, 93 l.w. 505, (iii) natarajan v. veerabadra udayar, 1990 (1) l.w. 186 and (iv) mani thevar v. r.m. venkatachalam, 1992 (2) l.w. 234 and contended that what was granted to the defendant is only a licence.9. admittedly, both the parties to the controversy have not executed any document in respect of the collection of usufructs from the coconut trees on the suit land. a perusal of the oral evidence of p.w.1 amply shows that the defendant is entitled to collect only the usufructs and that he is only a licensee in respect of the land. the report and the plan of the commissioner, exs.c-1 and c-2 prove that the evidence of defendant as d.w.1 is unacceptable. the concurrent findings of the courts below are that the defendant is not a cultivating tenant and what was granted to him is only a licence.10. it is true that in saravanan's case, 95 l.w. 322, relying upon a division bench judgment reported in venugopal pillai v. thirunavukkarasu, 61 l.w. 514 and other two judgments of this courts reported in ranga iyengar v. sivasami pandaram, 90 l.w. 560 and venkatachalapathi odayar v. rajalakshmi ammal, 93 l.w. 505. his lordship justice mohan, (as he then was), has held that the right to pluck coconut would amount to only a lease. in the light of the above judgment, i have carefully perused the four decisions referred to by the learned counsel for the respondents.in govindaswami vanniar's case. 76 l.w. 378, the division bench consisting of ramachandra iyer, c.j. and venkataraman, j. in similar circumstances held that the right to collect usufructs of the trees is impliedly coupled with a licence to use the land which will not amount to a lease of the land itself. it may be that such a benefit amounts to an interest in immovable property. but that is not the same thing as saying that there has been a transfer of the land itself. the division bench has also observed that whether the nature of the transfer would amount to lease or licence, depends mainly on the terms of the agreement. since there was a written agreement in the case referred to by the division bench, on the basis of the contents of the document, it ultimately held that what was granted in the document is only a licence. the division bench has also ruled that if there had been a transfer of the land in favour of the appellant by way of lease, he would be entitled to the protection as cultivating tenant as the lease should be regarded as one for agricultural purposes. inasmuch as there was no demise of the land, in that case, concurring with the courts below, the division bench dismissed the second appeal.11. in venkatachalapathy udayar's case, 93 l.w. 505, ramanujam, j., after referring to the earlier decision of this court, held that the right to collect usufructs from coconut trees for one year is only a licence and not a lease.12. in natarajan's case, 1990 (1) l.w. 186, bellie, j., after referring to govindaswami vanniar v. mahalakshmi ammal, 76 l.w. 378 and venugopal pillai v. thirunavukkarasu and ors., 61 l.w. 514, has held that the right to collect the produce of the trees is not a lease and is only a licence. in the said judgment, learned single judge has referred to venugopal pillai's case, 61 l.w. 514. lastly, in the decision reported in mani thevar v. km. venkatachalam, (1992)2 l.w.234, again bellie, j. after considering venugopal pillai's case, govindaswami vanniar's case, saravanan's case : air1982mad386 and natarajan's case, has held that right to pluck ripe coconuts is not a lease and rejected the claim as cultivating tenant.13. applying the principle laid down in these cases for determining whether a particular transaction is a licence or a lease to the facts of the present case, i am of the view that the transaction between the plaintiffs and the defendant, as spoken to by them as p.w.1 and d.w.1 can only be treated as licence. if it is considered as a licence, there will be no question of termination of the tenancy as required under section 106 of the transfer of property act. the above mentioned decisions, on the basis of the recitals and the contents therein, hold that the right to pluck usufructs of the coconut trees is only a licence. coming to the present case, as stated by me, admittedly there is no written document. on the basis of the oral evidence of p.w.1 and d.w.1, the courts below concurrently held that what was given to the defendant is only a licence. in the light of the above mentioned factual position and the principle enunciated in the above referred catena of decisions. i am in entire agreement with the judgments and decrees of the courts below. consequently, there are no merits in the second appeal and the same is accordingly, dismissed. no order as to costs.

Judgment:
ORDER

P. Sathasivam, J.

1. The defendant is the appellant. The respondents filed O.S. No. 505 of 1977 on the file of the District Munsif's Court, Cuddalore for recovery of possession. The plaint averments are as follows:

The first plaintiff is the wife of the second plaintiff. The suit property belongs to the second plaintiff. The second plaintiff leased the right to collect the usufructs of the coconut trees in the suit property to the defendant, on an annual lease amount of Rs. 3,100. The defendant had not paid the lease amount from Karthigai, 1973 and a suit was filed for the recovery of lease amount. The defendant is only a licensee in respect of the land. The plaintiff's issued a notice calling upon the defendant to vacate the property and hand over the possession. The defendant sent a reply with incorrect allegations stating that he is a cultivating tenant. With these averments, the plaintiff filed the present suit.

2. The defendant in his written statement as well as in the additional written statement contended in the following manner: The entire property was leased out to this defendant. It is incorrect to state mat he is only a licensee in respect of the land. The defendant raised plantain crop in the suit property. The lease amount is only Rs. 1,000. There is no valid termination of the lease. This defendant is a cultivating tenant in respect of the entire property and is entitled to the benefits of Tamil Nadu Occupants Kudiyiruppu (Confermant Ownership) Act, 1971. With these averments, the defendant prayed for the dismissal of the suit.

3. In support of the plaint averments, the 2nd plaintiff, T.R. Ramamurthy was examined as P.W.1 and he has also marked Exs.A-1 to A-3.

4. On the other hand, the defendant himself was examined as D.W.1 and he has not produced any document to substantiate his defence. The Commissioner's report and the plan were marked in Exs.C-1 and C-2.

5. It is the evidence of P.W.1 that as per the lease agreement, between the parties, the defendant is entitled to collect only the usufructs and that he is only a licensee in respect of the land. On the other hand, it is the evidence of the defendant that he is a cultivating tenant in respect of the land and coconut trees standing therein. Admittedly, in respect of the above transaction, there is no written document. On the basis of the oral evidence of P.W.1 and D.W.1 as well as Exs.C-1 and C- 2, learned District Munsif, Cuddalore, has held that what was granted to the defendant was only a licence in respect of the land and rejected the contention of the defendant that he is a cultivating tenant in respect of the suit land. The trial court has also rejected another contention of the defendant that he is entitled to the benefits of Tamil Nadu Occupants Kudiyiruppu (Conferment Ownership) Act, 1971. By judgment and decree dated 14.7.1981, learned District Munsif, Cuddalore decreed the suit as prayed for.

6. Against the judgment and decree of the trial court, the unsuccessful defendant filed an appeal in A.S. No. 202 of 1981 before the District Court, Cuddalore. Learned District Judge, in the absence of any document regarding the right to pluck coconuts, on the basis of the oral evidence of P.W.1 and D.W.1 held that the defendant is only a licensee with the right to collect the usufructs of coconuts on the suit land and he had no other interest in the suit land, except the right of access to the coconut trees, consequently rejected all the contentions of the defendant and dismissed the appeal, confirming the judgment and decree of the trial court.

7. Against the concurrent findings of the courts below, the defendant filed this second appeal, S.A. No. 129 of 1983. While entertaining the second appeal, the following substantial questions of law were framed by this Court:

1. Whether the right to pluck coconuts conferred upon the appellant will amount to a lease or licence?

2. Whether the judgment and decree of the lower appellate court are not opposed to the principles laid down in R. Saravanan v. Sri Vedaranyeswaraswami Devasthanam, : AIR1982Mad386 .?

8. Mr. N. Ishtiaq Ahmed, learned counsel for the appellant, relying upon a decision rendered in R. Saravanan v. Sri Vedarnyeswaraswami Devasthanam, : AIR1982Mad386 , argued that what was granted to the defendant is only a lease. In other words, he vehemently contended that the right to pluck coconuts is only a lease, but not a licence as observed by the courts below. On the other hand, Mr.K.V. Sundararajan, learned counsel for the respondents repelling the above contention of the appellant cited the decisions in (i) Govindaswami Vanniar v. Mahalakshmi Ammal, 76 L.W. 378, (ii) Venkatachalpathy Udayar v. Rajalakshmi Ammal, 93 L.W. 505, (iii) Natarajan v. Veerabadra Udayar, 1990 (1) L.W. 186 and (iv) Mani Thevar v. R.M. Venkatachalam, 1992 (2) L.W. 234 and contended that what was granted to the defendant is only a licence.

9. Admittedly, both the parties to the controversy have not executed any document in respect of the collection of usufructs from the coconut trees on the suit land. A perusal of the oral evidence of P.W.1 amply shows that the defendant is entitled to collect only the usufructs and that he is only a licensee in respect of the land. The report and the plan of the Commissioner, Exs.C-1 and C-2 prove that the evidence of defendant as D.W.1 is unacceptable. The concurrent findings of the courts below are that the defendant is not a cultivating tenant and what was granted to him is only a licence.

10. It is true that in Saravanan's case, 95 L.W. 322, relying upon a Division Bench Judgment reported in Venugopal Pillai v. Thirunavukkarasu, 61 L.W. 514 and other two judgments of this Courts reported in Ranga Iyengar v. Sivasami Pandaram, 90 L.W. 560 and Venkatachalapathi Odayar v. Rajalakshmi Ammal, 93 L.W. 505. His Lordship Justice Mohan, (as he then was), has held that the right to pluck coconut would amount to only a lease. In the light of the above judgment, I have carefully perused the four decisions referred to by the learned counsel for the respondents.

In Govindaswami Vanniar's case. 76 L.W. 378, the Division Bench consisting of Ramachandra Iyer, C.J. and Venkataraman, J. in similar circumstances held that the right to collect usufructs of the trees is impliedly coupled with a licence to use the land which will not amount to a lease of the land itself. It may be that such a benefit amounts to an interest in immovable property. But that is not the same thing as saying that there has been a transfer of the land itself. The Division Bench has also observed that whether the nature of the transfer would amount to lease or licence, depends mainly on the terms of the agreement. Since there was a written agreement in the case referred to by the Division Bench, on the basis of the contents of the document, it ultimately held that what was granted in the document is only a licence. The Division Bench has also ruled that if there had been a transfer of the land in favour of the appellant by way of lease, he would be entitled to the protection as cultivating tenant as the lease should be regarded as one for agricultural purposes. Inasmuch as there was no demise of the land, in that case, concurring with the courts below, the Division Bench dismissed the second appeal.

11. In Venkatachalapathy Udayar's case, 93 L.W. 505, Ramanujam, J., after referring to the earlier decision of this Court, held that the right to collect usufructs from coconut trees for one year is only a licence and not a lease.

12. In Natarajan's case, 1990 (1) L.W. 186, Bellie, J., after referring to Govindaswami Vanniar v. Mahalakshmi Ammal, 76 L.W. 378 and Venugopal Pillai v. Thirunavukkarasu and Ors., 61 L.W. 514, has held that the right to collect the produce of the trees is not a lease and is only a licence. In the said judgment, learned single judge has referred to Venugopal Pillai's case, 61 L.W. 514. Lastly, in the decision reported in Mani Thevar v. KM. Venkatachalam, (1992)2 L.W.234, again Bellie, J. after considering Venugopal Pillai's case, Govindaswami Vanniar's case, Saravanan's case : AIR1982Mad386 and Natarajan's case, has held that right to pluck ripe coconuts is not a lease and rejected the claim as cultivating tenant.

13. Applying the principle laid down in these cases for determining whether a particular transaction is a licence or a lease to the facts of the present case, I am of the view that the transaction between the plaintiffs and the defendant, as spoken to by them as P.W.1 and D.W.1 can only be treated as licence. If it is considered as a licence, there will be no question of termination of the tenancy as required under Section 106 of the Transfer of Property Act. The above mentioned decisions, on the basis of the recitals and the contents therein, hold that the right to pluck usufructs of the coconut trees is only a licence. Coming to the present case, as stated by me, admittedly there is no written document. On the basis of the oral evidence of P.W.1 and D.W.1, the courts below concurrently held that what was given to the defendant is only a licence. In the light of the above mentioned factual position and the principle enunciated in the above referred catena of decisions. I am in entire agreement with the judgments and decrees of the courts below. Consequently, there are no merits in the second appeal and the same is accordingly, dismissed. No order as to costs.