JUDGMENT
Ramanujam, J.
1. The plaintiff who filed a suit for a declaration that he is a cultivating tenant entitled to the benefits of the Madras Cultivating Tenants’ Protection Act, 1955 and for a permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit lands as such tenant and was successful in the trial Court but failed in the lower appellate Court, is the appellant. The trial Court held that the transaction under Exhibit A-1 was a lease. But the lower appellate Court, held it to be a licence. The question in this second appeal is as to whether, the transaction under Exhibit A-1 executed between the plaintiff and the defendant is a lease or a licence.
2. It appears that the suit land belongs to one Ellamman temple and that it is a garden where Jasmine plants have been raised. The plaintiff was put in possession of the flower garden for a period of ten years on 5th May, 1956, for an annual payment of Rs. 350. As the plaintiff committed default in payment of the said amounts for a year the defendant filed a petition before the Revenue Court under the provisions of the Madras Cultivating Tenants’ Protection Act, in 1961 and obtained an Order of eviction. But later the parties seem to have settled the matter and a fresh arrangement was entered into between the plaintiff and the defendant under Exhibit A-1, dated 29th March, 1961 whereunder the flower garden was to be enjoyed by the plaintiff for a period of five years at an annual payment of Rs. 500. The dispute between the parties is as to what are the rights of the plaintiff under Exhibit A-1.
3. Exhibit A-1 shows that the lands covered thereunder were one acre and forty cents, there were 1,400 Jasmine plants which had already been raised and in yielding condition. The recitals in Exhibit A-1 show that the plaintiff is entitled to enjoy the yield from the Jasmine plants for a period of five years, that he is to water the plants from the well situate in the land. Exhibit A-1 however prevents the plaintiff from raising any further Jasmine plants. The document also shows that the possession of the land was exclusively given to the plaintiff though the defendant had reserved a right to enter the land to inspect the plants whenever necessary. It also provides that if water in the well is insufficient the plaintiff has to make his own arrangement for watering the plants. The annual kuthagai has been fixed at Rs. 500. It also provides that the plaintiff has to surrender possession of the land with the Jasmine plants in the same condition as they were handed over to him, on the expiry of the five year period, which means, that the plaintiff has to maintain the plants in good yielding condition. For the Jasmine plants to be in yielding condition when the period of five years fixed under the agreement expires, the plaintiff is expected to not only water the plant but also attend to the weeding, manuring, pruning and other like operations, It is, in the light of these facts it has to be considered whether the I arrangement under Exhibit A-1 was a I lease or a licence.
4. It has been observed by this Court I in Panchapakesan v. Swaminathan (1971) 2 M.L.J. 169, that I the real test to find out whether a transaction is a lease or a licence is to see the intention of the parties at the time of entering into the transaction, that if the document creates an interest in property it is a lease but if it only permits another to make use of the property of which the legal possession continues with the owner it is a licence. It has also been pointed out in that case that although a person who is let into exclusive possession can, prima facie, be considered as a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. In a later decision in The Srirangam Municipality by its Commissioner v. V. Nataraja Pillai S.A. No. 806 of 1968, this Court following the decisions of the Supreme Court in Associated Hotels of India v. R.N. Kapoor , M.N. Clubwala v. Foida Hussain Sahib , and B.M. Lall v. Dunlop Rubber Co. , expressed the view that though exclusive possession is a very important indication in favour of the tenancy, it is not conclusive and that if there are circumstances which negative the intention to create a lease, it should be held that the transaction is a licence, and to ascertain whether a document creates a licence or lease the substance of the document must be preferred to the form.
5. In this case if the intention of the parties is to be gathered from Exhibit A-1, it appears to be clear that the plaintiff is to get exclusive possession of the land wherein Jasmine plants have been raised and not the Jasmine plants alone, that he has been charged with the duty of watering and maintaining the plants in good condition during the period of five years, and that he has to deliver possession of the land with the Jasmine plants in good condition to the respondent at the end. Since the possession of the land has been given to the plaintiff in pursuance of Exhibit A-1 and he is under a duty to redeliver possession of the land after the expiry of the period of five years specified thereunder, it is not possible for me to accept the contention put forward on behalf of the respondent that the plaintiff has been put in charge of only the Jasmine plants and that exclusive possession of the land as such has not been given to the plaintiff. The fact that the lease deed provides for the entry into the property by the respondent for purpose of inspection of the Jasmine plants as and when necessary shows that exclusive possession has been given to the plaintiff in pursuance of Exhibit A-1. The learned Counsel for the respondent wants to construe the arrangement under Exhibit A-1 as a licence to the plaintiff to enter upon the land and to collect the Jasmine flowers without any interest in the land in which the plants had been raised. The learned Counsel seeks to rely on the decision in Firm C.J. Patel and Co. v. State of Madhya Pradesh , wherein the Supreme Court has held that the rights to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac, and to cut and carry away teak and timber and miscellaneous species of trees called hardwood and bamboos are in essence and effect licence granted to persons to cut, gather and carry away the produce in the shape of tendu leaves or lac or timber or wood. But the said decision has been later explained by the Supreme Court in Ananda Behera v. State of Orissa , on the gaound that in that case a right to pluck, collect and carry away tendu leaves does not give the owner of the right any proprietary interest in the lands as the right pertains only to a growing crop, and a growing crop is expressly exempted from the definition of “immovable property” in the Transfer of Property Act. But the decision in C.J. Patel and Co. v. State of Madhya Pradesh , cannot strictly be applied to the facts of this case where it is not merely a right to collect the flowers from the Jasmine plants for any one season, but the right is spread over a period of five years,. It has been held by Srinivasan, J. in Arumugha Veltian v. Angamuthu Nattar (1965) 1 M.L.J. 170, that when a person has been given a sight to cut and remove cocoanuts from a grove, his right to enter upon the land would be in the nature of a licence if it is a case where he is to remove the goods immediately upon the grant Of the right, but where he is entitled to usufruct from the trees spread over a period of time during which period the usufruct grow Out of the soil, then the right to collect the usufruct is in the nature of immovable property and would accordingly amount to a lease. The learned Judge purported to follow the principle laid down in Marshal v. Green (1875) L.R. 1 C.P.D. 35, where it was held that if at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold, from further vegetation and from the nutriment to be afforded by the landi the contract is to be considered as for an interest in land; but, where the process of vegetation is over, or the parties agree that the things sold shall be^1 immediately withdrawn from the land, the land is to be considered as a mere warehouse of the things sold, and the contract is for goods. In this case the plaintiff is entitled to collect the usufructs of the crop for a period of five years and he had been charged with the duty of watering and maintaining the plants in good condition during that period. It is therefore not possible to construe it as merely a right to collect the Jasmine flowers with an ancillary right to enter upon the land for gathering the produce. In my view Exhibit A-1 clearly creates an interest in land though the various clauses in Exhibit A-1 prohibit the plaintiff from raising further crops in the land. Therefore, the arrangement under Exhibit A-1 has to be considered only as a lease.
6. But the question still remains as to whether the plaintiff will come under the definition of “cultivating tenant” as defined in Section 2(aa) of Madras Act XXV of 1955. Section 2(aa) defines “cultivating tenant” in relation to any land as a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied and “cultivation” has been define4 in Section 2(6) as the use of lands for the purpose of I agriculture or horticulture. It has therefore, to be found as to whether the plaintiff is carrying on agriculture or horticulture in the land covered by Exhibit A-1. In this case the arrangement between the parties under Exhibit A-1 is that the plaintiff should maintain the existing Jasmine plants in good condition by making his own arrangements for watering etc. The plaintiff has been specifically restrained from raising any further Jasmine plants or any other crop. It is true that plaintiff has not been cultivating any fresh Jasmine plants or any other crop in the land in question. The operation which the plaintiff is to carry on is to water the existing plants and maintain them in good yielding condition. The question is whether this limited operation which he is found to carry on so that he could get good yield from the plants is an agricultural or horticultural operation.
7. In Commissioner of Income-tax v. Benoy Kumar Sahas Roy , the Supreme Court pointed out that the term “agriculture” would comprise within it : (1) basic operations like tilling of the land, sowing seeds, planting, etc., such basic operations requiring expenditure of human skill and labour on the land itself; and (2) other operations which have to be resorted to by the agriculturist and which are absolutely necessary for the purpose of effectively raising the produce from the land, referred to as subsequent operations like protecting the crops, pruning, cutting and harvesting etc., and held that where there had been no sewing or planting but only subsequent tending and protection of the produce as in the case of a forest it would not be agriculture. In Govindaswami v. Mahalakshmi Ammal (1963) 2 M.L.J. 137, Ramachandra Iyer, G.J., speaking for the Bench expressed the view that there would be an agricultural operation only if two things co-existed, namely, basic and subsequent operations and that the mere existence of the latter alone would not make the operation an agricultural one. The following observations are portions:
What is therefore essential to constitute an agricultural operation is the tilling of the land, sowing seeds, planting I and similar operations on the land. I The mere presence of subsequent I operations without there being the 1 basic operations referred to above, I as in the case of forest produce and 1 spontaneous growth, could not be I agricultural operations. In other words 1 if there are no basic operations as I referred above, there cannot be an I agricultural operation.
The above passage is strongly relied I on by the Counsel for the respondent I in support of his contention that the limited operations carried on by the j plaintiff in pursuance of the agreement I Exhibit A-1 are not agricultural or horticultural operations. As pointed out by the Bench in Govindaswami v. Mahalakshmi Ammal (1963) 2 M.L.J. 137, it is not necessary for the purpose of an agricultural lease that the lessee should do both the basic as well as subsequent operations. It would be sufficient if the basic operations had been done by somebody else even years earlier. It is true the decisions go (to the extent of holding that there could be an agricultural operation only if the basic and subsequent operations coexisted, and that the mere existence of the latter would not make the operation an agricultural one. But that does not mean that both sets of operations should be done by the same individual Or within a specified period of time. There can be an agricultural lease in regard to a Crop planted or raised already and existing on the land at the time when the lessee took the property on lease. As I have already held that there had been a transfer of the land in favour of the plaintiff by way of lease under Exhibit A-1, he would be entitled to the protection as a cultivating tenant, as the lease should be regarded as one for agricultural purposes.
8. The result is the decision of the lower appellate Court holding that the plaintiff is not a cultivating tenant in respect of the suit land is set aside. The second appeal is therefore allowed and the suit is decreed as prayed for. There will be no order as to costs.
