ORDER
A.R. Lakshmanan, J.
1. The petitioner Madam is a public trust, represented by its power agent S. Sarangachariar. One Nagammal, mother of the second respondent herein was cultivating an extent of 2.34 acres in S.No. 459, Perugavazhndhan village, Mannargudi Taluk. As she was in arrears of rent, the petitioner Madam filed an application for eviction in P.T.No. 617 of 1987 under Section 19(3) of Act 57 of 1961 and the said application was allowed and thereafter E.P.No. 19 of 1988 was filed for possession of the property and the said execution petition was ordered on 7.10.1988 pursuant to which the petitioner Madam took possession of the land on 21.12.1988. Thereafter, the said Nagammal filed an appeal seeking restoration of possession which was dismissed on 25.8.1989 by the Revenue Court, Thanjavur. Aggrieved by the said order, the said Nagammal came forward with a C.R.P. in C.R.P.No. 2935 of 1990 on the file of this Court.
2. Whileso, the second respondent (Vedaratnam) claiming himself to be the sole legal heir of Nagammal (who died on 29.10.1989 according to the petitioner herein and on 1.9.1989 according to the second respondent herein), filed an application for restoration of possession. The said application was resisted by the petitioner Madam on various grounds. The Revenue Court entertained the application and ordered restoration of possession to the 2nd respondent herein. It is against this order of the Revenue Court, the petitioner Madam has preferred the above revision petition under Article 227 of the Constitution of India. The main contention on behalf of the petitioner Madam is that the order impugned in this revision had been passed under Act 41 of 1989, which according to the petitioner was not in force either on the date of application or on the date of passing of the order. Further, the said Act 41 of 1989 does not provide for any appeal or revision. It is also the case of the petitioner Madam that after they took possession of the land through the Revenue Court, the said lands were leased out to one Mathiazhagan, who is in possession of the lands.
3. It is pointed out on behalf of the petitioner by Mr. V. Prabhakar, learned Counsel for the petitioner that the very application for restoration of possession filed under Section 7 of Act 41 of 1989 is not maintainable especially when such application itself has been filed after 31.3.1990 after which date the very Act is not in force. It is further stated that Section 1, Sub-sections (3) and (4) of Act 41 of 1989 in and by which the period during which the Act would be in force had been clearly demarcated as “1.10.1986 to 31.3.1990” thus rendering the invocation of any provision under the said Act after 31.3.1990 a negatory since according to the petitioner for invoking Section 7 of Act 41 of 1989, an application has to be made within three months after publication of the Act, viz., within three months from 29.11.1989. Which in the instant case, the application was filed beyond the said time-limit. Therefore, it is contended that the Revenue Court has erred in entertaining the application filed after the prescribed period especially without being satisfied as to whether sufficient cause has been made out for not preferring the application within the time stipulated under Section 7(1) of Act 41 of 1989. Mr. Prabhakar, learned Counsel for the petitioner further represented that the mother of the second respondent had sought for restoration of possession by filing P.T.No. 617 of 1987 before the first respondent which application was dismissed on 25.8.1989 against which C.R.P.No. 2935 of 1990 was pending on the file of this Court. It was later on dismissed as withdrawn by an order of this Court dated 24.1.1996. Therefore, it is contended that once the mother of the first respondent had exercised the right of restoration of possession and having failed therein, the second respondent cannot claim any right as he cannot derive better title than that of his mother. Even assuming that the 2nd respondent as a legal heir can claim relief, he has not stated in his objection that he is contributing his own physical labour and therefore, in the absence of pleadings, the 2nd respondent is estopped from raising such contention at the time of argument. It was also urged that the Revenue Court should have rejected the application for restoration for possession especially when Section 7 of Act 41 of 1989 contemplates an application by a cultivating tenant who is contributing his own physical labour.
4. I have perused the petition filed by the second respondent before the Revenue Court, Thanjavur for re-delivery of possession of the land in question. The second respondent has not stated anywhere in the said petition that he is contributing his physical labour. The claim was based only on the ground that he being the sole legal heir of his mother, he is entitled for the re-delivery of possession of the land in question and that he is not liable to be evicted pursuant to the provisions of Act 41 of 1989. As already seen, the Revenue Court passed an order on 7.10.1988 directing the tenant Nagamrnal to deliver peaceful possession of the land to the petitioner Mutt. The eviction was ordered on the ground that the petitioner was in arrears of more than Rs. 7,000 and odd. Pursuant to the order dated 7.10.1988, the possession was delivered to the petitioner mutt on 21.12.1988. It is also pertinent to note that the counter filed by the petitioner mutt before the Revenue Court. According to the petitioner mutt, the petition filed before the Revenue Court by the 2nd respondent is not maintainable and that the 2nd respondent Vedarathnam never cultivated the land and that he is not a tenant thereof. It is also further stated in the counter that once the cultivating tenant has been directed to be evicted and once possession was taken over by the land owner, there is no question of tenancy continuing either in the name of the said tenant or her legal heirs. This apart, the tenants have not chosen to deposit the huge arrears of rent which are due from Nagamrnal and therefore, there is no question of any restoration of possession. However, the Revenue Court, by its order dated 5.12.1990, has ordered the restoration of possession on the basis of the arguments advanced by the learned Counsel for the second respondent which would not state that he is also contributing his physical labour for cultivating the land in question. It is also ordered that since the second respondent is the only heir of the deceased Nagamrnal he is entitled to entertain the petition. Aggrieved against the same, the present revision has been filed.
5. I have already referred to the arguments advanced by Mr. V. Prabhakar, learned Counsel on behalf of the petitioner mutt. Mr. R. Krishnamoorty, learned Senior counsel on behalf of the second respondent, contended that though there is no pleading in regard to the contribution of physical labour by the second respondent, the Revenue Court, accepting the contribution of the 2nd respondent herein and believing their case had ordered restoration of possession and therefore, the order of the Revenue Court is not liable to be interfered with. It is further contended that the petition was filed by the second respondent for restoration of possession within three months from the date 29.11.89 and not as alleged by the petitioner on 31.3.1990. Learned Senior Counsel further contended that the second respondent is entitled to maintain the present application since he is admittedly the sole legal heir of the deceased Nagamrnal and also he was helping the said Nagamrnal in her cultivation operations.
6. Let me now consider the case of the petitioner in regard to the other contentions regarding the maintainability of the petition by the 2nd respondent before the Revenue Court. It is the specific case that the 2nd respondent has not stated in his petition that he is contributing his own physical labour. A categoric statement was made by the petitioner herein in the counter affidavit before the Revenue Court that the 2nd respondent herein never cultivated the lands and he is not a tenant thereof and that in the absence of any specific plea that he is cultivating the land, the petition filed by him is not competent. No reply affidavit has been filed by the 2nd respondent herein before the Revenue Court controverting this categoric statement made in the counter affidavit. No oral evidence was also let in on the side of the 2nd respondent to prove his contribution of physical labour. The contention of Mr. Prabhakar, in regard to this issue merit acceptance. It is settled law that in the absence of any pleadings, the 2nd respondent is estopped from raising such contention at the time of argument. Therefore, I have no hesitation in rejecting the argument of Mr. R. Krishnamoorthy, learned Senior Counsel on this issue. In support of this contention, Mr. Prabhakar invited my attention to he judgment of a Division Bench of this Court Raju Reddiar v. The Tamil Nadu Electricity Board wherein the bench held that
It is settled law that in he absence of any pleadings, the respondents are estopped from raising such contentions at the time of argument.
Section 2, Sub-Section (aa) of the Tamil Nadu Cultivating Tenants Act defines Cultivating Tenant, thus:
(aa)’ Cultivating tenant’
(i) means a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging or another, under a tenancy agreement, express or implied; and
(ii) included-
(a) any such person who continues in possession of the land after the determination of the tenancy agreement;
(b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land;
(c) a sub-tenant if the contributes his own physical labour or that of any member of his family in the cultivation of such land; or
(d) any such sub-tenant who continues in possession of the land notwithstanding that the person who sublet the land to such sub-tenant ceases to have the right to possession of such land; but (iii) does not include a mere intermediary or his heir.
The above definition clearly shows that it is necessary for the person like the second respondent to establish that he is contributing his own physical labour in order to claim the benefit under the Act. He should satisfy the fact of personal cultivation if he was to claim benefit under the Act. Section 2, Sub-clause (5) of the Tamil Nadu Public Trust (Registration of Administration of Agricultural Lands) Act, 1961 defines cultivating Tenant which reads as follows:
(5)” Cultivating tenant”-
(i) means a person who contributes his own physical labour of that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied; and
(ii) includes –
(a) any such person who continues in possession of the land after the determination of the tenancy agreement; or
(b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land; or
(c) a sub-tenant if the contributes his own physical labour or that of any member of his family in the cultivation of such land; but
(iii) does not include a mere intermediary or his heir.
Therefore, the person claiming benefits of the Act 41 of 1989 must prove that he contributes his own physical labour in the cultivation of the land belonging to the petitioner mutt under a tenancy agreement expressed or implied. A heir of such person can also claim the benefits under the Act if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land. In the instant case, the second respondent has miserably failed to establish that he has contributed his physical labour. Therefore, even though his application was made within three months from the date of 29.11.1989, is not entitled to the benefits of the Act, since he has failed to establish his contribution of his physical labour. My attention was drawn to a decision of a learned single Judge of this Court reported in K.S.A. Subramania Chettiar v. Senthikumar (1994)1 L.W. 473 In that case, the petitioners who are minors claimed the benefits of the Act. The court held that the petitioners who are minors cannot contend that they are cultivating tenants and therefore, the petition by them was incompetent.
7. In this revision, it is specifically mentioned in the affidavit filed in support of C.M.P.No. 9900 of 1991 that Nagammal, the mother of the 2nd respondent who filed an application seeking restoration of possession which was dismissed on 25.8.89 by the Revenue Court and aggrieved by the said order, the said Nagammal preferred C.R.P.No. 2935 of 1990 on the file of this Court. It is also stated that the said Nagammal died on 29.10.1989. However, it is contended by the second respondent that Nagammal did not die on 29.10.1989, but on 1.9.1989. In the counter filed by the second respondent herein in C.M.P.No. 15417 of 1991, the 2nd respondent has categorically stated that he filed an application before the Revenue Court on 23.1.1990 itself but not beyond the date of expiry the said Act on 31.3.1990 as contended by the petitioner. There is no reply to the said affidavit. Under such circumstances, it has to be presumed that the application for restoration of possession was made by the second respondent within three months from 29.11.1989 as it was filed on 24.1.1990 before the Revenue Court. As seen earlier, C.R.P.No. 2935 of 1990 was filed by her counsel in this Court on 5th December, 1989, whereas the 2nd respondent has himself admitted that his mother died on 1.9.1989 itself. The affidavit for stay in the said C.R.P., contains the date of thumb impression as 5th September, 1989 at Madras, (after her death). Learned Counsel for the petitioner on the record signed the affidavit on 4th September, 1989 and the revision was filed on 5.12.1989 and taken on file on 7.11.1990. It is seen from the vakalath, Nagammal’s thumb impression is dated 24.11.1989 and the counsel on record has accepted he said vakalath on 30.11.1989 and filed the revision on 5.12.1989. Thus, it is seen all these things have taken place after the demise of the said Nagammal on 1.9.1989 which is the correct date of death according to the 2nd respondent herein. This Court admitted the said petition on 8.11.90 and granted interim stay on the same day. A counter affidavit was filed by the petitioner mutt who is the second respondent in that C.R.P.No. 2935 of 1990 questioning the maintainability of the C.R.P., inasmuch as the same has been preferred by a dead person. According to the petitioner mutt, Nagammal died on 29.10.1989, while the revision had been presented to this Court on 5.12.1989 and therefore, the revision caused by a dead person is not at all maintainable. However, the said revision was withdrawn by the counsel for the petitioner therein and the following is the order passed by S.S. Subramani, J., on 24.1.1996:
Counsel for the petitioner. The civil revision petition is dismissed as withdrawn. No costs. Consequently, the C.M.P. is also dismissed.
In this context, my attention was drawn to the order of M. Srinivasan, J., reported in Mohammed Ibrahim v. Chellammal (1991)1 M.L.J. 334. In that case an application to bring on record the L.Rs. was filed by the respondent therein, as if the defendant was alive at the time of filing the appeal. The court below had accepted the explanation given by the respondent that she was not in town at the time of filing the appeal. According to her she had provided her advocate with necessary funds for preferring the appeal even a few days prior to the date of filling appeal and left the place. It is her evidence that she came to know the death of the defendant only after her return to the place and immediately thereafter she, filed the petition to bring the legal representatives on record. The learned Judge was of the view that interests of justice require that an opportunity should be given to the respondent to prosecute the appeal as against the legal representatives of the deceased defendant after condoning the delay. The learned Judge held as follows:
The appeal filed by the respondent herein before the Subordinate Judge was a still-born one as the defendant in the suit was dead by the time the appeal was filed. In such cases, Order 22 of the Code of Civil Procedure will not apply. There is no question of bringing on record the legal representatives as there was no valid appeal. The remedy of the appellant is to get the cause title amended and if it is within time to file the appeal against the legal representatives. If it is out of time, the remedy is to apply for condonation of delay in filing the appeal against the legal representatives.
As already seen, it is the specific case of the second respondent herein, that he is the sole legal representative of the deceased Nagammal. It is not known as to how the C.R.P.No. 2935 of 1990 was withdrawn by the counsel after her death and on whose instructions. The remedy as suggested by this Court, the 2nd respondent would have taken steps to get the cause title amended and if it is within time, to file a petition to implead himself as legal representative and if it is open to him, to apply for condonation of delay in filing the said petition. The second respondent has not taken any steps in this regard. Therefore, the dates above mentioned will only go to show that the entire proceedings initiated by the counsel on record in filing C.R.P.No. 2935 of 1990 is a nullity. The second respondent being the sole legal heir of the deceased Nagammal and his not taking any steps to come on record would only go to show that he has purposely evaded taking any steps and initiated the present proceedings under Act 41 of 1989 on 24.1.1990, after her death on 1.9.1989, even though the possession was taken as early as on 21.2.88. The order of he Revenue Court in ordering restoration of possession of the land in question to the second respondent is nothing but perverse. There is admittedly no evidence to show that the second respondent was contributing his physical labour. Therefore, he is not a person entitled to the benefits of the Act 41 of 1989. As rightly pointed out by Mr. Prabhakar, learned Counsel for the petitioner, the lower court should have rejected the application for restoration of possession especially when Section 7 of Act 41 of 1989 contemplates an application by a cultivating tenant who contributed his physical labour for the cultivation of the land in question. The other reasonings given by the Revenue Court in ordering the restoration of possession are equally unsound and untenable. For all the reasons mentioned supra, the order of the court below is liable to be set aside.
8. In the result, the C.R.P. is allowed. However, there will be no order as to costs.
