High Court · 2005

In the High Court of Judicature at MadrasDated: 22.02.2005Coram:The Honourable Mr. Justice S.R.SINGHARAVELUSecond Appeal No. 1117 of 19941. Kamalambal2. A.Jayapal..Appellants/Defendants 2 & 4..vs..Arulmigu Renuka DeviAmman Temple, Vijayapuram,Thiruvarur Taluk and Munsif,rep.by its Executive Officer..Respondent/PlaintiffSecond Appeal filed under Section 100 of Civil Procedure Codeagainst the judgment and decree dated 30.06.1993 in A.S.No.8 of 1991on the file of Sub Court, Nagapattinam, reversing the judgment anddecree dated 27.02.1990 in O.S.No.133 of 1988 on the file of DistrictMunsif Court, Thiruvarur.For Appellants : Mr.B.RamamoorthyFor Respondent : Mr.T.R.RajaramanJUDGMENTSecond Appeal was directed against the judgment dated 30.06.1993 inA.S.8 of 1991 of the Sub Court, Nagapattinam, which reversed thejudgment dated 27.02.1990 in dismissing the suit in O.S.133 of 1988 bythe District Munsif, Thiruvarur.2. During the course of admission, the following substantial questionof law was framed:Whether the plaintiff can succeed on the basis of the case ofthe defendant without proving his own case and abandoning thesame ?3. The suit was originally filed for permanent injunction andsubsequently amended as one for mandatory injunction to demolish theconstruction made by the defendant in the suit site, which belongs tothe respondent/ plaintiff temple. The suit land is measuring 4912sq.ft.in T.S.No.979/1 in Block No.22, Ward No.3 in Vijayapuram of https://hcservices.ecourts.gov.in/hcservices/ Thiruvarur; that consists of two non-residential buildings, bearing doorNo.22C and 22D and one residential building bearing door No.23.4. Originally the land was an inam land to which Section 13 of TamilNadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Act30 of 1983)was found applicable. Under Ex.A-1, there was a suo motuenquiry held by the Settlement Tahsildar, Thanjavur under the provisionsof Act 30 of 83, for the purpose of grant of ryotwari patta. Thenotified date was taken as 15.02.1965. Arunachalam, the originaldefendant also took part along with the authorities of the plaintifftemple in the said enquiry. As Arunachalam subsequently expired, hislegal representatives were added as the appellants in the appellatestage. It is in that Settlement Proceedings Ex.A-1, mention was madeabout the conveyance of permanent paguthi right and para 6 of Ex.A-1specifically contained that what was conveyed was only the paguthirights and the ownership of the building. It was ultimately found asfollows:"I therefore order that the buildings in the suit landshall with effect on and from the appointed day vest undersection 13(1) of the Act jointly in the institution and therespondent No.1 (Arunachalam Chettiar) as determined in theSchedule". 5. According to the Settlement Proceedings, the title in the suitbuilding vest jointly in the institution and the appellants' predecessorby name Arunachalam. Thus the appellants will be entitled to 50% of thebuilding while the other 50% remain vested with the respondent temple.Inasmuch as the building as a whole remains in the possession of theappellants/defendants, 50% of their possession is due to their ownershipand the remaining 50% is in the capacity of a lessee. There seems to besome arrears of lease and that is why, even in the course of evidence onthe side of respondent /plaintiff, it has been clearly stated thatbecause of the pending arrears, they were necessitated to file the suit.Thus, the motive for filing the suit is the pendancy of arrears, withwhich we are not concerned here as the suit is not for claiming arrears.From the above evidence, the leasehold right of appellants in the suitbuilding is made known.6. The contention of the respondent/ plaintiff is that the defendanthas removed the tiled roof of the building and had changed it intoconcrete roof. Thus, according to the counsel for therespondent/plaintiff, this is not permissible under section 108(p) ofthe Transfer of Property Act. Section 108(p) of the Transfer ofProperty Act provides,"In the absence of a contract or local usage to the contrary,the lessor and the lessee of immovable property, as againstone another, respectively, possess the rights and are subjectto the liabilities mentioned in the rules next followed, or https://hcservices.ecourts.gov.in/hcservices/ such of them as are applicable to the property leased....(p) he must not, without the lessor's consent, erect on theproperty any permanent structure, except for agriculturalpurposes'"7. The purpose of the building is residential and therefore, thelessee, as per the above provision, shall not without the consent of thelessor, erect on the property any permanent structure. So, what wasprohibited by the provision is erection of a permanent structure in thesaid land without the consent of the lessor. This presupposes theexistence of 'Nil' building or a temporary construction, which accordingto the above provision, should not be erected or constructed of apermanent nature without the lessor's consent. There is no lessor'sconsent herein. Therefore, if there was vacant land or that there was atemporary shed, new construction or conversion of a temporaryconstruction into permanent structure is alone prohibited. But counselfor the appellants agreed that there was an existence of a permanentstructure and the defendant had only removed the tiled roof andconverted it into a concrete roof. For which, of course, there was nopermission granted by the lessor. Whether this conversion of a tiledroof into a concrete roof would make the above provision applicable isdepending upon the fact that the existing tiled roof shall be atemporary one. In no stretch of imagination, it can be said that tiledroof is only a temporary one. If that roof was made up of hay ricks orsome leaves of coconut tree or palmyrah tree, then it may be consideredas a temporary structure, which should not have been converted intoeither tiled or concrete roof without the consent of a lessor. Now, itis only one form of permanent structure that was converted into anotherform of permanent structure. This was not prohibited by section 108(p)of Transfer of Property Act nor does it expect the consent of a lessor.It is also not the case of the respondent /plaintiff that some damagehad been made to the building at the risk and cost of plaintiff temple.After all, it is only an improvement to the building and no damage waseither alleged, pleaded or proved.8. In such circumstances, the finding of the appellate court thatthere are basic grounds for granting mandatory injunction is incorrect.Demolishing a permanent building would no way cause any advantage to theplaintiff, but in the alternative, it has only become added asset tothe temple. There is no benefit for either of the parties in suchdemolition. It is also not as if the building is an old building,liable for demolition. Regarding the age of the building, there is noevidence. The respondent/ plaintiff should not also rely upon theweakness of the appellants/legal representatives of the defendant ingetting a decree. The question of law is, accordingly, answered infavour of the appellants. https://hcservices.ecourts.gov.in/hcservices/

9. Second Appeal is allowed and the suit is dismissed by restoringthe decree of the trial court and setting aside the decree of the firstappellate court. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1) The Subordinate Judge, Nagapattinam.2) The District Munsif, Thiruvarur.Copy to:The Record Keeper,V.R.Section,High Court,Madras.One cc to Mr.B.Ramamoorthy, SR.7991.Second Appeal No.1117 of 1994RL [co]MK