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PETITIONER: SRI ATHMANATHASWAMI DEVASTHANAM

       Vs.

RESPONDENT: K.   GOPALASWAMI AIYANGAR

DATE OF JUDGMENT: 09/05/1963

BENCH: DAYAL, RAGHUBAR BENCH: 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

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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.

JUDGMENT: 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

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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  trustproperty,  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

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             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

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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

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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

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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   therefrom   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.