Sri Athmanathaswami Devasthanam Vs. K.
Gopalaswami Aiyangar [1963] INSC 142 (9 May 1963)
09/05/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1965 AIR 338 1964 SCR (3) 763
ACT:
Ryoti Lands-Waste lands brought under
cultivation-If amounts to cultivable lands-Admission of ryot to Possession of
ryoti lands-Permanent right of occupancy-If amounts to lease for a term
exceeding 5 years-Sanction of the Endowments Board, if necessary-Madras Hindu
Religious Endowments Act, 1927 (Mad.
2 of. 1927), s. 76-Madras Estates Land Act,
1908 (Mad. 1 of 1908), ss. 3 (15) , 3 (16), 6,189.
HEADNOTE:
The lands belonging to the appellant temple
had been let into possession to the respondent in August, 1944 by the then
trustee of the temple when the latter was being pressed by the State
authorities for reclaiming the land and putting it to cultivation in connection
with the Grow More Food campaign launched by the Government during World War
II.
The succeeding trustee sued the respondent
for the recovery of a sum of money as damages for use and occupation of the
lands on the grounds (1) that the lands were uncultivable waste lands and not
ryoti lands, (2) that the transaction by which the respondent was let into
possession was not binding on the present trustee inasmuch as it had not been
entered into after obtaining the permission of the Hindu Religious Endowments
Board under s. 76 of the Madras Hindu Religious Endowments Act, 1927, and (3)
that the respondent was, therefore, a trespasser. The respondent's defence was
(1) that the suit lands were ryoti lands and that in view of his being let into
possession by the previous trustee he acquired the status of a ryot under s. 3
(15) of the Madras Estates Land Act, 1908, and also acquired permanent rights
of occupancy under s. 6 of the said Act, (2) that the transaction by which he
was let into possession did not amount to an alienation and did not come within
the purview of s. 76 of the Endowments Act, and (3) that the suit lands being
ryoti and the defendant being a ryot, the suit was not maintainable in the
civil court. The trial court decreed the suit but, on appeal, the High Court
took the view that the suit could be instituted only in the Revenue Court and
764 that the civil court had no jurisdiction to entertain it.
It accordingly set aside the trial court's
decree and ordered the return of the plaint to the plaintiff-appellant for
presentation to the proper court. It further dismissed the cross-objections
filed by the appellant with respect to the trial court's allowing credit of
certain payments towards rent or damages due from the respondent The evidence
disclosed that though the lands in suit were waste lands covered with shrubs,
jungle and the like and had riot been cultivated for a long time, they were
brought under cultivation in connection with the Grow More Food campaign, and
there was nothing to show that the reclamation of the land was not profitable
financially. It was also found that the respondent was ryot as defined in s. 3
(15) of the Madras Estates Land Act.
Held (1) that the lands in suit were ryoti
lands within s. 3 (16) of the Madras Estates Land Act, 1908, as they were
cultivable lands.
Land which can be brought under cultivation
is cultivable land unless some provision of law provides for holding it
otherwise in certain circumstances.
(2) that the mere fact that s. 6 of the
Madras EstatesLand Act conferred a permanent right of occupancy on the mere
admission of a ryot to the possession of ryoti land by the landholder, did not
make the letting of the land to such a person equivalent to the grant of a
lease to him for a term exceeding 5 years, and that, therefore, no sanction of
the Madras Hindu Religious Endowments Board was necessary for the letting of
the suit lands to the respondent.
(3) that the suit for the recovery of damages
and ejectment was not cognizable by a civil court in view of s. 189 of the
Madras Estates Land Act, as the respondent was a ryot within the meaning of the
Act.
(4) that the High Court erred in making an
order dismissing the cross-objections filed by the appellant, since, after
coming to a conclusion that the civil court had no jurisdiction over the
subject-matter of the suit, it could not decide any question on merits.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 70 of 1961.
Appeal from the judgment and decree dated
July 12, 1956, of the Madras High Court in A. S. No. 7 of 1954.
765 K. N. Rajagopal Sastri, M. S. K. Sastri
and M.S. Narasimhan, for the appellant.
A. V. Viswanatha Sastri and T. V. R.
Tatachari, for the respondent.
1963. May 9. The judgment of the Court was
delivered by RAGHUBAR DAYAL J.--This appeal is by certificate granted by the
High Court of Madras under Art. 133 (1) (a) of the Constitution.
The appellant, Sri Athmanathaswami Devasthanam,
of Avidayarkoil in Tanjore District, represented by hereditary trustee
Subrahmanya Pand ara Sannadhi Atheena Karthar of Thiruvavaduthurai Atheenam,
hereinafter called the Devasthanam, is the landholder of three villages. It
sued the respondent for the recovery of a sum of Rs. 11, 415/8/6 as damages for
use and occupation of the lands in suit for Faslis 1357 to 1360 at Rs. 3/9/0
per acre per annum. The respondent was let into possession of the land by a
previous trustee of the Devasthanam in August 1944 when he was being pressed by
the State authorities for reclaiming the land and putting it to cultivation in
connection with the Grow More Food Campaign launched by the Government of the
country during World War II. The total land in all the three villages let out
to the respondent was about 727 acres. The plaintiff contended, inter-alia that
the lands in suit were private iruvaram lands and not ryoti lands, that the
transaction by which the respondent was let into possession was not binding on
the present trustee inasmuch as it had not been entered into after obtaining
the premission of the Hindu Religious Endowments Board under s. 76 of the
Madras Hindu Religious Endowments Act, 1927 (11 of 1927), and that therefore
the respondent was a trespasser. The respondent on the other hand, 766
contended that the suit lands were ryoti lands, that in view of his being let
into possession by the previous trustee he acquired the status of a ryot under
s. 3 (15) of the Madras Estates Land Act (1 of 1908) and also acquired
permanent rights of occupancy under s. 6 of the said Act, that the transaction
by which he was let into possession did not amount to an alienation and did not
come within the purview of s. 76 of the Endowments Act. He further contended
that he was not in arrears of rent, that he had paid rents up to Fasli 1356 and
there was a real understanding that the realisation of rent would be waived so
long as the Government waived its right to water cress and that the Government
having waived water cress till the end of Fasli 1360, he was not liable to pay
any rent till the end of the Fasli year. It was also contended that the suit
lands, being ryoti, and the defendant being a ryot, the suit was not
maintainable in the Civil Court.
Both the Trial Court and the High Court have
found that the suit lands are ryoti lands. They differed about the nature of
the transaction by which the respondent was let into possession. The Trial
Court held it to be an alienation by way of a permanent lease and so invalid in
view of absence of consent of the Hindu Religious Endowments Board. The High
Court, on the other hand, held that the transaction did not amount to an
alienation of trust property, that no sanction of the Board was necessary and
that therefore the letting of the land to the respondent was valid.
Disagreeing with the trial Court, the High
Court also found that the suit could be instituted only in the Revenue Court
and that the Civil Court had no jurisdiction to entertain it. The High Court
therefore set aside the decree which the Trial Court had passed and ordered the
return of the plaint to the plaintiff-appellant for presentation to the proper
Court. The High Court further dismissed the cross-objection filed by the
plaintiff-appellant 767 with respect to the Trial Court's allowing credit of a
payment of Rs. 1,000/- towards rent of damages due from the
defendant-respondent. It is against this order that the appellant has filed the
present appeal.
Learned counsel for the appellant challenged
the correctness of the finding that the land in suit was ryoti land on grounds
that part of the land was tank land and the rest not cultivable and therefore
most of the land in suit did not come within the definition of 'ryoti land' in
s. 3 (16) of the Estates Land Act which reads :
" Ryoti land' means cultivable land in
an estate other than private land but does not include- (a) beds and bunds of
tanks and of supply, drainage surplus or irrigation channels ;
(b) threshing-floor, cattle-stands, village-
sites, and other lands situated in any estates which are set apart for the
common use of the villagers;
(c) lands granted on service tenure either
free of rent or on favorable rates of rent if granted before the passing of
this Act or free of rent if granted after that date, so long as the service
tenure subsists." It was not alleged by the appellant in its plaint or at
any stage of the proceedings in the Trial Court that part of the land in suit
consisted of beds of tanks and therefore did not come within the definition of
ryoti land. We do not consider it fair to allow this fresh contention relating
to a question of fact to be raised at this stage, even though in some of the
records of rights certain land is described as "puramboke'.
768 The lands in suit, according to the plaint,
were uncultivable waste lands covered with shrubs,jungle and the like. They had
not been cultivated for a long time. Waste lands covered with shrubs, jungle
and the like cannot be held to be uncultivable merely on that account or on
account of their being not cultivated for a long time. Land which can. be
brought under cultivation is cultivable land unless some provision of -law
provides for holding it otherwise in certain circumstances. This is not
disputed for the appellant, but what is urged on its behalf, is that land will
not be cultivable land if it can be brought under cultivation only after
incurring great expenditure. It is said that according to the respondent, about
Rs. 3,00,000/- were spent in reclaiming the land. Except for the statement of the
respondent, there is no evidence worth considering about the actual expenditure
incurred by the respondent in reclaiming the land in suit which is over 700
acres in area.
Reference was also made to an observation in
the judgment of the High Court to the effect :
"Of course, there are some lands in an
estate which are not cultivable at all like hill tops, permanently submerged
lands, etc., and they will be incapable of being claimed as ryoti lands with
occupancy rights by lessees for grazing, fishing etc." This observation
seems to be a general observation and not in connection with the land in suit.
The land in suit was sought to be brought under cultivation in connection with
the Grow More Food Campaign and this must have been as the land in suit could
be brought under cultivation without any undue expenditure of money and labour.
The expenditure on reclaiming the land might have been more than the usual
expenses in view of the fact that most of the labour had to be imported from
outside and as tractors had to be used on account of the 769 large size of the
land to be reclaimed within as short a time as possible. It is not even shown
that the reclamation of land has not been profitable financially. We are
therefore of the opinion that the Courts below have rightly held the land in
suit to be cultivable land.
The other point made by the appellant is
against the finding that the respondent is a ryot. Ryot is defined in s.3 (15)
of the Act and means a person who holds for the purpose of agriculture ryoti land
in an estate on condition of paying to the landholder the rent which is legally
due upon it.
The contention is that the respondent alleged
that no rent was payable and that in view of this assertion the respondent
would not be a ryot as he holds land without any condition of paying rent to
the landholder. The contention is not factually correct. The respondent made no
such defi- nite statement in either the written statement or in his evidence
which would indicate that he completely disowned his liability to pay rent. We
have been referred to certain statements in the written statement. They only
show that there was some dispute about the rate of rent to be paid and not
about the liability to rent. In paragraph 4 of the written statement it was
said "at that time the actual cash rent which was to be paid was not fixed
but the defendant orally requested and was promised remission of rent as long
as Government remitted water charges in this area on confessional rates of rent
for some years thereafter, in view of the heavy reclamation expenses."
Again, in paragraph 7 it was said ,the defendant at no time had agreed to the
rate fixed by the trustee and had several times protested against it
also." In paragraph 20 the defendant said :
"The allegation in paragraph 4 of the
plaint that the defendant agreed to the rate of rent at 770 Rs. 319/0 per acre
and then entered into possession is altogether wrong...... Far from the
defendant agreeing to the said rate, the defendant both orally and in writing
then and on every available opportunity thereafter has been protesting against
the exorbitant rate, arbitrarily and unilaterally fixed by the trustee swayed
by extraneous considerations.
The defendant had also informed the trustee
that if only the defendant was granted the patta which was promised to him and
to which he was entitled in law, he would take the matter to the collector for
fixing a fair rent. He also took care to add that unless and until a patta was
issued to him, no rent would begin to accrue." Lastly, in paragraph 26, it
was stated "'no rent was agreed to by the defendant and the rent
originally fixed by the late trustee was later abandoned by him. Hence until
the rent was fixed by agreement or by the Collector, no claim for rent is
sustainable." All these statements arc against the appellant's contention
that the respondent asserted that he was not liable to pay rent.
In his deposition the respondent said "I
did not agree to pay Rs. 3/9/0 per acre because I thought it was high ... In
1949 there was a demand by the temple manager for two faslis, i.e., Rs. 6,000.
I told him that he should consult the Pandarasannidhi about it and that I was
not going to pay anything as rent. I do not remember if I sent another letter
to Pandarasannidhi about this matter.
The demand sent to me by the Revenue
Inspector in 1950 is Exhibit B-21. That related to rent due by me for kudikani
lands in my possession.
771 I did not pay it but I entered into
correspon- dence with the Revenue Divisional Officer.
But nothing more was heard about it."
These statements too do not make out that the respondent disclaimed liability
to pay rent. Whenever he refused to pay rent it was for reasons other than
absence of a liability to pay rent.
There is ample material on the record to show
that the respondent was liable to pay rent for the land given to him for
cultivation. Exhibit A-3 is the order of the Pandarasannidhi for granting patta
to the respondent of the land belonging to Avadiyarkoil Temple. The very first
term mentioned in this order is that the applicant, i.e., the respondent, must
pay cash rent at such rates as may be determined by the Pandarasannidhi.
We therefore do not see any force in the
contention that the respondent is not a ryot as defined in the Act.
The next contention for the appellant is that
the lease of the land in favour of the respondent is invalid in view of the
provisions of s. 76 of the Endowments Act as the Board had not sanctioned the
lease. Sub-section (1) of s. 76 reads :
"76 (1) No exchange, sale or mortgage
and no lease for a term exceeding five years of any immovable property
belonging to any math or temple shall be valid or operative unless it is
necessary or beneficial to the math or temple and is sanctioned by the Board in
the case of maths and excepted temples and by the committee in the case of
other temples." The order for the grant of patta to the respondent did not
fix any period for which it was granted. It 772 is urged for the appellant that
the lease must be taken to be for a period exceeding 5 years, as in pursuance
of the provisions of s. 6 (1) of the Act, the respondent secured permanent
right Of Occupancy in his holding. Such permanent right of occupancy is not
conferred on the appellant on account of the term fixed in the lease. Such
right is conferred by the Act on any person who is admitted by a landholder to
the possession of ryoti land. he mere admission of a ryot to the possession of
ryoti land by the landholder gives that ryot the permanent right of occupancy
in view of the statutory provisions of s. 6. If the Pandarasannidhi had only
admitted the respondent to the ryoti land for a period less than five years,
even then the result would have been that the respondent would have acquired a
permanent right of occupancy in his holding. We are of opinion that the mere
fact that s. 6 of the Act confers such a right on a person admitted to a ryoti
land, does not make the letting of the land to such a person equi- valent to
the grant of a lease to him for a term exceeding 5 years, and as such requiring
the previous sanction of the Board. If it be held otherwise, the result would
be that either the Pandarasannidhi will have to obtain the sanction of the
Board for every proposed letting of land of whatever area, or not to exercise
his ordinary duties of letting the as a trustee. The provisions of s. 76 could
not have been intended to put such a restriction on the exercise of his
ordinary rights by the Pandarasannidhi. It is too much to expect that the
combined effect of s. 76 of the Endowments Act and s. 6 of the Estates Land Act
is that there be no more letting of land belonging to a temple by the
Pandarasannidhi. We hold that the letting of the land to the respondent did not
amount to the leasing of the land to him for a term exceeding 5 years and that
therefore required no sanction of the Board and that the letting of the land to
the respondent is valid and good in law.
773 The respondent being a ryot, a suit for
the recovery of rent and ejectment is not cognizable by a Civil Court, in view
of the provisions of s. 189 of the Act. Sub-section (1) of s. 189 reads :
"189 (1). A District Collector or
Collector hearing suits or applications of the nature specified in Parts A and
B of the Schedule and the Board of Revenue or the District Collector exercising
appellate or revisional jurisdiction there from shall hear and determine such
suits or applications or exercise such jurisdiction as a Revenue Court.
No Civil Court in the exercise of
its original jurisdiction shall take cognizance of any dispute or matter in
respect of which such suit or application might be brought or made." Suits
by a landholder to recover arrears of rent and to eject a ryot are triable by a
Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the
Act.
Such suits cannot be taken cognizance of by a
Civil Court in view of second paragraph of s. 189 (1). The High Court is right
in holding that the Revenue Court alone has the jurisdiction over the suit and
therefore in ordering the return of the plaint for presentation to the proper
court.
The last point urged is that when the Civil
Court had no jurisdiction over the suit, the High Court could not have dealt
with the cross-objection filed by the appellant with respect to the adjustment
of certain amount paid by the respondent. This contention is correct. When the
Court had no jurisdiction over the-subject matter of the suit it can- not
decide any question on merits. It can simply decide on the question of
jurisdiction and coming to the conclusion that it had no jurisdiction over the
matter had to return the plaint.
774 We therefore dismiss the appeal except in
so far as it relates to the order of the High Court on the cross- objection
filed by the appellant. We set aside the order dismissing the cross-objection.
We order the appellants to pay the costs of the respondent throughout.
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