@JUDGMENTTAG-ORDER
Nainar Sundararam, J.@mdashThe matter relates to the rights claimed by one Ariyathangam, since deceased, under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act (Act 40 of 1971) (hereinafter referred to as the Act). The original owner of the property was one Santhanaswamy. The third respondent herein purchased the property under Ex. R3 in November, 1969. Earlier under Ex. R2, in August, 1967, Santhanaswamy mortgaged the property to Ariyathangam. There is a controversy as to what exactly was the subject matter of these two transactions whether the property was the site alone or the site and the superstructure. In February, 1971, as per Ex.R1, the son of Ariyathangam, one Muthu Pillai, is stated to have executed a lease deed in favour of the third respondent herein-in respect of the property. According to Ariyathangam, she was only a tenant of the site and hence the property demised was only a kudiyiruppu within the meaning of S.2(8) of the Act and hence she was entitled to the Kudiyiruppu patta. She moved for such a patta before the first respondent and by the order dated 31st May, 1981 the first respondent accorded her prayer for Kudiyiruppu patta for the concerned extent. Before the first respondent, the third respondent was the opposite side to Ariyathangam. Ariyathangam seemed to have died on 2nd June, 1981. The third respondent preferred an appeal to the second respondent against the order of the first respondent, impleading only Muthu Pillai as the legal representative of Ariyathangam. The petitioner herein, who is none else than the daughter-in-law of Ariyathangam, being the wife of Muthu Pillai, got herself impleaded as a party-respondent to the appeal, on the basis of a will executed by Ariyathangam. Muthu Pillai did not evince any interest in contesting the appeal before the second respondent and the contest was only by the petitioner herein. The second respondent concurred with the first respondent in respect of two crucial aspects, viz., (1) that Ariyathangam was occupying the property on the relevant date, viz., 19th June, 1971, and (2) that she was an agricultural labourer. However, forming an opinion that the demise was not only of site, but it was both of the site and the superstructure constituting a single unit, the second respondent discountenanced the plea for grant of kudiyiruppu patta, set aside the order of the first respondent by allowing the appeal preferred by the third respondent. This writ petition had been filed impeaching the order of the second respondent. Mr. T. Susindaran, learned counsel for the petitioner would submit that there is a glaring omission on the part of the second respondent to discuss relevant pieces of evidence and even whatever discussion had been done by the second respondent, does not have the support of the factual materials. After going through the orders of both the first and the second respondents, I am inclined to concur with the submissions made by the learned counsel for the petitioner. That the superstructure belongs to her was sought to be demonstrated by Ariyathangam before the first respondent by exhibiting Exs.P1 and P2 (series) stated to comprise 25 documents. They relate to Municipal demands and the payment of house-taxes and according to Ariyathangam, they cover the superstructure put up by her late husband, one Ammavasai. These documents have been scrutinised by the first respondent and he has accepted them. The second respondent has not at all adverted to these documents before he rendered his decision against the petitioner and in favour of the third respondent. The second respondent refers to the mortgage by Santhanaswamy to Ariyathangam and says that it covered both the site and the superstructure. The opinion of the first respondent on a construction of this document seemed to be that the mortgage covered the site only. Equally so with reference to the purchase by the third respondent under Ex.R3 in November, 1969, the view of respondents 1 and 2 are conflicting with regard to the subject-matter of the sale. The first respondent says that the purchase was of the site. But, the second respondent would say that the subject-matter of the purchase was not only the site but also the superstructure. The second respondent refers to a receipt, whereby the mortgage under Ex. R.2 was released and the second respondent would state that the said receipt also covers the superstructure. However Mr. D. Nellaiyappan, learned counsel appearing for the third respondent admits that no such receipt was exhibited in the case. If this is so, this Court could not attach any sanctity to this reasoning acting upon any conclusion as done by the second respondent over a document which has not been exhibited in the case at all. Furthermore, the second respondent has not adverted to the oral evidence placed in the case by the parties. Number of witnesses have been examined before the first respondent and there is no reference to their evidence at all in the order of the second respondent. Learned counsel for the petitioner would further urge that there is a principle countenanced by this Court that even assuming the superstructure did not belong to the claimant for kudiyiruppu patta, under the Act, that is not a decisive factor to negative the claim therefore and the decisive factor, apart from other relevant features, is as to whether an agriculturist or an agriculturist labourer was in occupation of a site on a lease or on a licence, express or implied on the relevant date. There are pronouncements in support of these submissions of the learned counsel and I find I have also expressed an opinion to that effect in Rasu Pillai v. Addl. Tahsildar (Kudiyiruppu), Mayiladuthurai1. The principle countenanced by pronouncements of this Court has also not been adverted to by the second respondent when he rendered the decision impugned in this Writ Petition. In my view, the order of the second respondent suffers from more than one infirmity and certainly the petitioner is right in invoking the writ jurisdiction of this Court to quash such an order. But, I am not inclined to leave the matter by merely quashing the said order. The interest of justice requires that the matter should be examined by the second respondent de novo avoiding the infirmities taken note of as above, and render a fresh decision in accordance with law. Accordingly, the Writ Petition is allowed and the matter will stand remitted to the second respondent for him to decide the matter afresh as per the above observations and directions. There will be no order as to costs.
