Arulmigu Thiruneelakandeswara Swami Temple v. T.Rajendran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16-11-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.1332 of 1995 Arulmigu ThiruneelakandeswaraSwami Temple rep. by its Executive Officer.. Appellant/PlaintiffVersusT.Rajendran.. Respondent/DefendantPRAYER:The second appeal has been filed against the judgment anddecree, dated 17.2.1993, made in A.S.No.25 of 1992, on the file ofthe District Court, Nagapattinam, confirming the judgment and decree,dated 13.12.1991, made in O.S.No.79 of 1991, on the file of theDistrict Munsif Court,Tiruvarur.For Appellant : Mr.C.Raghunatha ReddyFor Respondent : Ms.G.Devi J U D G E M E N TThe second appeal has been filed against the judgment anddecree, dated 17.2.1993, made in A.S.No.25 of 1992, on the file ofthe District Court, Nagapattinam, confirming the judgment and decree,dated 13.12.1991, made in O.S.No.79 of 1991, on the file of theDistrict Munsif Court,Tiruvarur.2. The plaintiff in the suit, in O.S.No.79 of 1991, is theappellant herein. The defendant in the said suit is the respondentherein. The suit had been filed by the plaintiff for vacantpossession and for mesne profits.3. The brief facts of the case, as stated by the plaintiff inhis plaint, are as follows:The suit property belongs to the plaintiff Temple. The patta inrespect of the suit property is in the name of the temple. The suitproperty, with Patta No.166, is a vacant land. The defendant had,illegally, encroached upon the suit property and he has been inenjoyment of the said property from the year 1980. The defendant hasno right in the suit property, as he is only an encroacher. At thetime of the renovation of the temple in the year, 1985, the defendanthad agreed to vacate the suit property belonging to the Temple, sincethe defendant has no right whatsoever in the said property. https://hcservices.ecourts.gov.in/hcservices/

4. It has also been stated that the suit property belongs to theTrustee of the plaintiff Temple. According to Section 34 of the TamilNadu Hindu Religious and Charitable Endowments Act, 1959, there is aprohibition to sell, exchange or mortgage, the suit property. By anorder, dated 19.11.1969, the Commissioner, Hindu Religious andCharitable Endowments Department, had asked the Executive Officer ofthe Thiruvarur Sri Thiyagarajaswamy Temple to take charge of the suittemple. The Executive Officer of the suit Temple is the appropriateperson to represent the temple and therefore, he has instituted thepresent suit by filing the plaint. Even though the plaintiff hadissued a notice, dated 27.7.1990, to the defendant asking him tohandover the possession of the suit property, the defendant had notreplied to the said notice. As such, the defendant is liable to handover the possession of the suit property to the plaintiff. In theabove circumstances, the plaintiff had filed the suit, in O.S.No.79of 1991, praying for the relief, as stated therein. 5. In the written statement filed by the defendant, it has beenstated that the allegation in the plaint that the defendant hadtrespassed over the suit property in the year, 1980, is false. Thedefendant has been in possession and enjoyment of the suit propertyfrom the year, 1953, as a lessee, under the plaintiff Temple. Thelease has been recognised by the Deputy Commissioner of HinduReligious and Charitable Endowments Department, in M.P.No.5 of 1987.As the defendant is the lessee, in respect of the suit property, heis not a trespasser, as alleged in the plaint. The right of thedefendant, as a lessee, had not been terminated by any means known tolaw. 6. It has also been stated that the suit filed by the plaintifffor recovery of possession, based on the title, is not legallysustainable, as the defendant is not the trespasser. The defendant iswiling to purchase the land, based on its value. The prayer in thesuit for the possession of the property cannot be granted, as thereis no termination of the lease. As such the suit is liable to bedismissed, as being devoid of merits. 7. In view of the averments made in the plaint, as well as inthe written statement, the trial Court had framed the followingissues for consideration:“1. Whether the plaintiff is entitled to the possession of thesuit property? 2. Whether the plaintiff would get the mesne profits? 3. To what relief, the plaintiff is entitled to?”8. The trial Court had found that the suit property, inT.S.No.1970/1, is situated at the back side of the house of D.W.1.Arulmighu Thiru Neelakanteswarar Temple had earlier been under theadministration of the Trustee. At that time, the trustees of thetemple had given the paguthi rights in the suit property to various https://hcservices.ecourts.gov.in/hcservices/ persons and they have been enjoying the same. Thereafter, by an orderissued by the Commissioner, Hindu Religious and Charitable EndowmentsDepartment, in the year, 1969, the administration of the plaintifftemple had been brought under the charge of the Executive Officer ofthe Thiruvarur Sri Thiyagarajaswamy Temple. In the year, 1969, whenthe Executive Officer of Sri Thiyagarajaswamy Devasthanam had takencharge of the administration of the plaintiff Temple, P.W.1 had beenin enjoyment of the suit property, having the paguthi right. There isno denial by the plaintiff temple that in the year, 1953, Thiagarajavelar was the trustee and thereafter, Veeraiyah velar had been thetrustee. At the time when Thiagaraja velar was the trustee of thetemple, D.W.1 had taken the property and had also executed a documentin that regard. The said document had been marked as B.5. FromExhibits B.1 to B.3, it is clear that when Veeraiyah velar was thetrustee of the plaintiff temple, a petition had been submitted to theDeputy Commissioner of Hindu Religious and Charitable EndowmentsDepartment, Mayiladuthuria, against D.W.1 claiming for the possessionof the property, under section 78 (2) of the Hindu Religious andCharitable Endowments Act, 1959, and that the said petition had beenclosed, on 16.3.1988, based on a compromise. Thereafter, D.W.1 hasbeen in enjoyment of the suit property, based on the said compromise.Even though the plaintiff had stated in the plaint that till theyear, 1980, the suit property had been a vacant land and thereafter,the defendant had been enjoyment of the said property, havingencroached upon the said property, Sri Thiyagarajaswamy Temple hadnot taken possession of the suit property. P.W.1 had stated, in hisevidence, that Sri Thiyagarajaswamy Temple had not taken possessionof the suit property. P.W.1 had admitted that when the administrationof the plaintiff temple had been taken over by Thiruvarur SriThiyagarajaswamy Temple in the year, 1969, he has not taken thepossession of the suit property. Therefore, from the evidence ofP.W.1, D.W.1 has been in enjoyment of the suit property from theyear, 1953, as the paguthitharar. P.W.1 had not denied the fact thatthe suit property belongs to the plaintiff temple. The defendant isliable to pay the paguthi rent to the plaintiff temple. In case offailure on the part of the defendant to pay the paguthi rent, it isopen to the temple to take necessary action against the defendant forthe recovery of the rental amount. Further, since the temple had notissued any notice to the defendant, terminating his paguthi right,the temple is not entitled for the reliefs sought for in the suit.Accordingly, the trial court had dismissed the suit, by its judgmentand decree, dated 13.12.1991, made in O.S.No.79 of 1991. 9. Aggrieved by the said judgment and decree, the plaintifftemple had filed the first appeal before the District Court,Nagapattinam, in A.S.No.25 of 1992. The first appellate court hadframed the following point for consideration:“1. Whether the plaintiff is entitled to the possessionof the suit property?”10. The first appellate Court had found that there was nodispute about the fact that the suit property belongd to the https://hcservices.ecourts.gov.in/hcservices/ plaintiff temple. Even though the plaintiff had claimed that thedefendant had, illegally, encroached upon the suit property, from theyear, 1980, and he has been in enjoyment from the year, 1980, thedefendant had stated that he is in enjoyment of the suit property,with the permission of the plaintiff temple, as a lessee. Therefore,the main issue to be decided by the first appellate Court was whetherthe defendant has been in enjoyment of the suit property, with thepermission of the plaintiff temple or that he has been in enjoymentof the suit property, having encroached upon the same.11. The first appellate Court had noted that by a notice, dated27.7.1990, the Executive Officer of the plaintiff Temple had issued anotice to the defendant stating that he was in illegal enjoyment ofthe suit property belonging to the plaintiff Temple. A copy of thesaid notice had been marked as Ex.A.2. The said notice had beenreceived by the defendant. At the same time, the plaintiff hadinitiated an action against the defendant to vacate him from the suitproperty, which he has been in unauthorised occupation by filing apetition, before the Deputy Commissioner of the Hindu Religious andCharitable Endowments Department, Thanjavur, under Section 78(2) ofthe Hindu Religious and Charitable Endowments Act, 1959. Since acompromise was made between the plaintiff and the defendant, theDeputy Commissioner of the Hindu Religious and Charitable EndowmentsDepartment, had passed an order, dated 16.3.1988, closing thepetition, based on a compromise deed filed before him. A copy of thesaid order, dated 16.3.1988, had been marked as Exhibit B.3. Copiesof the summons issued in respect of the said proceedings had beenmarked as Exhibits B.1 and B.2. The compromise deed mentioned in theorder of the Deputy Commissioner, dated 16.3.1988, had been marked asExhibit B.4. The defendant had signed the compromise deed and oneVeeriyan had signed in the said deed, on behalf of the plaintifftemple. It had been contended on behalf of the plaintiff that sincean action had been initiated against the defendant, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959, andas the lease had been granted to the defendant, without obtaining thepermission of the Commissioner, in accordance with Section 34 of theHindu Religious and Charitable Endowments Act, 1959, the enjoyment ofthe suit property, by the defendant, is illegal. However, the firstappellate Court had not accepted the said contentions raised onbehalf of the plaintiff, since it had noted that the defendant hadbeen in occupation and enjoyment of the suit property, with thepermission of the plaintiff, for many years, as seen from Exhibit B.4. 12. The first appellate Court had also found that there had beenan agreement, dated 9.1.1953, between the father of the defendant,namely, Thiagaraja Pillai and Thiagaraja Velar, the trustee of theplaintiff temple. The said agreement had been marked as Exhibit B.5.Accordingly, the father of the defendant had been permitted to enjoythe suit property, for about 10 years. After the expiry of the saidperiod, Thiagara Pillai had been in enjoyment of the property. Afterthe death of Thiagara Pillai, the defendant had been in enjoyment ofthe suit property. In such circumstances, the first appellate Courthad held that the contentions raised on behalf of the plaintiff https://hcservices.ecourts.gov.in/hcservices/ temple, that the defendant had been in illegal occupation of the suitproperty, cannot be accepted. Therefore, the first appellate Courthad concurred with the views of the trial Court. However, the firstappellate Court had stated that it would be open to the plaintifftemple to take possession of the suit property, by following theprocedures established by law. Accordingly, the first appellate Courthad dismissed the first appeal by its judgment and decree, dated17.2.1993.13. Aggrieved by the judgment and decree of the first appellateCourt, dated 17.2.1993, made in A.S.No.25 of 1992, the plaintiff hadfiled the present second appeal before this Court. The second appealhad been admitted on the following substantial question of law:“1. Whether the lease under Exhibit B.5 is notvalid in view of Section 77 of the Hindu Religious andCharitable EndowmentsAct, 1959.?14. The learned counsel appearing on behalf of the appellant hadcontended that the Courts below ought not to have relied on thealleged lease deed, dated 9.1.1953,marked as Exhibit B.5, as it hadnot been executed by both the lessor and the lessee and since it wasnot a registered document. The said deed is non est in law for wantof proper execution and registration. The Courts below had failed tohold that the suit property appurtenant to the appellate temple andthat it is situated within the precincts of the temple. Further, thefirst ate Court had failed to appreciate that there cannot be anyestoppel against the statute. The first appellate Court ought to haveheld that the alleged compromise filed before the DeputyCommissioner, the Hindu Religious and Charitable EndowmentsDepartment, Mailaduthurai, is null and void, as it is contrary toSections 34(1) and 77 of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959. 15. The learned counsel appearing on behalf of the appellant hadcontended that after the coming into force of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959, the alleged lease infavour of the respondent, in accordance with Exhibit B.5, cannot becontinued, as it had become illegal. The order passed by the DeputyCommissioner, the Tamil Nadu Hindu Religious and CharitableEndowments Department, on 16.3.1988, marked as Exhibit B.3, isirregular, in view of Section 78 of the Tamil Nadu Hindu Religiousand Charitable Endowments Act, 1959, as he had no power to accept anycompromise between the parties, especially, when the trustee of theappellant temple was not a litigant in the proceedings before thesaid authority.16. The learned counsel appearing on behalf of the appellant hadalso submitted that since it is an undisputed fact that the suitproperty belongs to the appellant temple, the respondent ought tohave proved the fact that there was a lease deed, dated 9.1.1953,marked as Exhibit B.5. However, it has been claimed that the allegedlease was for a period of 10 years only. Even otherwise, the lease https://hcservices.ecourts.gov.in/hcservices/ deed ought to have been registered, in accordance with Section 107 ofthe Transfer of Property Act, 1882. As such, the said lease deed wasinadmissible in evidence, as seen from Section 17(1)(d) of theRegistration Act, read along with Section 49(c) of the said Act.Further, the said lease deed had not been executed by both thelessor and the lessee. Further, it had been superseded by a leasedeed, dated 1.3.1988, marked as Exhibit B.4. As such, the lease deed,marked as Exhibit B.5, had been extinguished, in view of Section 62of the Indian Contract Act. Even the second lease deed, dated1.3.1988, had not been registered, even though the said deed ought tohave been compulsorily registered, in accordance with section 17(1)(d) of the Registration Act, 1908.. 17. The learned counsel appearing on behalf of the appellant hadalso contended that a lease for a term exceeding five years is nulland void unless it has been sanctioned by the Commissioner, as beingnecessary or beneficial to the religious institution concerned, asseen from Section 34 read with Section 6(18) of the Hindu Religiousand Charitable Endowments Act, 1959. However, there was no sanctionby the Commissioner before the lease deed, dated 1.3.1988, marked asexhibit B.4, had been entered into. Since Exhibit B.3, which is anorder passed by the Deputy Commissioner of the Hindu Religious andCharitable Endowments Department is based on Exhibit B.4, lease deed,dated 1.3.1988, it cannot have any legal validity. Further, Section77 of the Hindu Religious and Charitable Endowments Act, 1959,prohibits the grant of lease, if it relates to any land, which isappurtenant to or adjoining the religious Institution. Even theCommissioner of the Hindu Religious and Charitable EndowmentsDepartment could grant the sanction for a lease only in respect ofthe land situated outside the precincts of the religious Institution.Since the suit land, which is the subject matter of the lease deed,dated 1.3.1988, marked as exhibit B.4, is appurtenant to oradjoining the `Nandavanam' of the plaintiff temple, the suit land isres extra commercium. 18. The learned counsel had further submitted that sinceExhibits B.4 and B.5 are null and void ab initio, the respondentcannot claim any right, whatsoever, in or over the suit property.Since there is no lease, the necessity to issue a notice terminatingthe alleged lease would not arise. Further, the respondent is anencroacher, as he is in unauthorized occupation of the suit property,without the approval of the competent authority, who is theCommissioner of the Hindu Religious and Charitable EndowmentsDepartment. Even otherwise, the alleged lease, under Exhibit B.4, hadexpired long back. It is also to be noted that the respondent had notpaid any rent to the plaintiff temple, in respect of the suitproperty, even though he had claimed that he was lessee. Since therespondent had not replied to the notice, dated 27.7.1990, marked asExhibit A.2, issued on behalf of the plaintiff temple, adverseinference could be drawn against the respondent, in view of section114 of the Evidence Act, 1872. Further, according to Section 109 ofthe Hindu Religious and Charitable Endowments Department Act, thereis no limitation for the recovery of any immovable property of the https://hcservices.ecourts.gov.in/hcservices/ temple. 19. Per contra, the learned counsel appearing for the respondenthad submitted that the Courts below had rightly held that the reliefssought for by the appellant in the suit, in O.S.No.79 of 1991,cannot be granted, in view of the fact that the respondent is inoccupation and enjoyment of the suit property, which belongs to theappellant temple, as a lessee, in view of the lease deed, dated9.1.1953, marked as Exhibit B.5 and the lease agreement, dated1.3.1988, marked as Exhibit B.4. Therefore, the allegation of theappellant that the respondent is an encroacher in the suit propertycannot be accepted. The appellant temple is estopped from making theclaim that the respondent is in unauthorised and illegal occupationand enjoyment of the suit property, after having entered into anagreement of lease, on 1.3.1988, with the respondent. Further, thesuit filed by the appellant temple is not maintainable, in view ofthe fact that it has been instituted by the executive officer of theplaintiff temple. 20. On such a contention being raised by the respondent, thelearned counsel appearing for the appellant had relied on thedecision, in SOBHANADRESWARA RICE MILL Vs. BRAHMACHARI BAVAJI MUTT(1973 1 ANDHRA WEEKLY REPORTER 255) to state that the suit filed bySri Brahmachari Bavaji Mutt, Vijayawada represented by Sri SikhadevRathi, is in order and that the contention of the learned counselappearing for the respondent, with regard to the maintainability ofthe suit, cannot be countenanced. 21. In view of the submissions made by the learned counselappearing for the appellant and the learned counsel appearing for therespondent and on a perusal of the evidence available on record, itcan be seen that there is no dispute, with regard to the fact thatthe suit property belongs to the plaintiff temple. Even if the claimof the respondent that he has been in possession of the suit propertybelonging to the plaintiff temple, as a lessee, in view of the leasedeed, dated 9.1.1953, marked as Exhibit B.5 and the lease agreement,dated 1.3.1988, marked as Exhibit B.4 is accepted, there is no doubtthat the lease had been granted to the defendant by way of leaseagreement, dated 1.3.1988, for a period of 10 years only. There is noevidence on behalf of the respondent to show that the lease periodhad been extended beyond the initial period of lease, which was for10 years. Further, since both the lease deed, dated 9.1.1953, and thelease agreement, dated 1.3.1988, were unregistered, the evidentiaryvalue and the status of unregistered documents are governed bysections 17(1)(d), and 49(c) of the Registration Act, 1908, andsection 107 of the Transfer of Property Act, 1882. 22. There is no doubt that the Courts below had arrived at theirconclusions by rejecting the claims made by the appellant hereinrelying on the unregistered documents, marked as Exhibits B.4, dated1.3.1988 and Exhibit B.5, dated 9.1.1953. It is also clear that thelease, said to have been granted in favour of the respondent, iscontrary to the provisions of Section 34, read with section 6(18) of https://hcservices.ecourts.gov.in/hcservices/ the Hindu Religious and Endowments Act, 1959, as well as Sections 77and 78 of the said Act. When it is evident from the terms of ExhibitB.4 that the suit land is appurtenant to or adjoining the`Nandavanam' of the plaintiff temple, even the Commissioner of theHindu Religious and Charitable Endowments Department, could not havegranted the lease in favour of the respondent, as he did not possessthe power to do so. The occupation and enjoyment of the suitproperty, by the respondent, beyond the period of 10 years from thedate of the lease deed, dated 1.3.1988, marked as Exhibit B.4, wouldbe unauthorised, in view of Section 78(1)(a) of the Hindu Religiousand Charitable Endowments Act, 1959, unless it is shown that thelease, said to have been granted in favour of the respondent, by wayof the lease deed, dated 1.3.1988, had been extended, subsequently.However, there is nothing on record to show that the lease granted infavour of the respondent, in the year 1988, had been extended,thereafter. Further, the allegation of the appellant that therespondent had not paid any rent to the appellant temple, pursuant tothe alleged lease agreement, dated 1.3.1988, had not been refuted bythe respondent. 23. As seen from the available evidence, the appellant had sentthe notice, dated 27.7.1990, marked as Exhibit A.2, claiming that therespondent was in unathorised and illegal occupation of the suitproperty belonging to the appellant temple and that the respondentshould vacate the suit property, had not been replied to by therespondent . In such circumstances, in view of the substantialquestion of law raised in the present second appeal, this Court is ofthe considered view that the Courts below had erred in rejecting thereliefs sought for by the appellant temple. This court is also of theview that it would be futile to drive the appellant temple to takerecourse to the other procedures established by law, at this stage,to evict the respondent from the suit property. In fact, therespondent had not shown as to the procedures, that are available tothe appellant, to vacate the respondent from the suit property.Hence, the principles of equity and the interest of justice demandsthat the reliefs sought for by the appellant, is to be granted bydirecting the respondent to vacate from the suit property and to handover the vacant possession of the said property to the appellant,within a period of three months from today. Further, it is made clearthat it would be open to the appellant to initiate appropriateproceedings in respect of the claim for mesne profits. Therefore, thejudgment and decree of the Courts below are contrary to law and thefacts and the circumstances of the case. 24. For the reasons stated above, the judgment and decree of theCourts below are set aside. Accordingly, the second appeal standsallowed. No costs. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lanTo:1. The District Court, Nagapattinam2. The District Munsif Court,Tiruvarur3. The Section Officer, V.R.Section, High Court, Madras.+ 1 cc to Mr.V.Ragupathi,Advocate,SR.61300+ 2 cc to Mr.C.Raghunatha Reddy,Advocate,SR.61116Second Appeal No.1332 of 1995 KA(CO)EM/8.12.09