Kuppusamy v. Arulmigu Puthu Mariamman Koil & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.12.2009 CORAM:THE HONOURABLE MS.JUSTICE R.MALAS.A.No.315 of 2003& C.M.P.No.20108 of 2003Kuppusamy .. Appellant/Plaintiffvs.1. Arulmigu Puthu Mariamman Koil, Kurinchipadi, rep. by Executive Officer, Kurinchipadi, Cuddalore District.2. Assistant Commissioner, HR & CE, Cuddalore. .. Respondents/DefendantsSecond Appeal filed under section 100 C.P.C.against thejudgment and decree dated 7.2.2002 in A.S.No.6 of 1995 on the fileof the Additional Sub-Court, Cuddalore, against the judgment anddecree dated 29.11.1994 in O.S.No.614 of 1993 on the file of theDistrict Munsif Court, Cuddalore. For appellant: Mrs.Hema Sampath, Senior Counsel for M/s.R.SubramanianFor respondents: Mr.R.Vasudevan for M/s.T.Susindran for R-1 Mrs.Bhavani Subbarayan, Spl.G.P.(C.S) for R-2JUDGMENTThe Second Appeal is filed by the appellant-plaintiff againstthe judgment and decree dated 7.2.2002 in A.S.No.6 of 1995 on thefile of the Additional Sub-Court, Cuddalore, confirming thejudgment and decree dated 29.11.1994 in O.S.No.614 of 1993 on thefile of the Principal District Munsif Court, Cuddalore.2. The averments in the plaint are as follows:The suit property is a vacant site belonging to the firstrespondent-first defendant-Temple. It is immediately on the east https://hcservices.ecourts.gov.in/hcservices/ of the plaintiff's house. The plaintiff purchased his house fromthe previous owner Ramaswami Mudaliar's heirs, by means ofregistered sale deed, dated 14.2.1985. The previous owner wasenjoying the suit property as a lessee of the first defendant-Temple, paying annual rent of Rs.15/- for the vacant site. Afterpurchase by the plaintiff, he is in possession. The plaintiff istethering his cow and calf in the suit property and also storinghay-rick and rubbish. He has put up a fence on the northern side.The first defendant is aware of the plaintiff's possession andright as a tenant. The Executive Officer has changed the recordsand not receiving the rent. The plaintiff cannot be evictedexcept by due process of law. However, the defendants are takingsteps to evict the plaintiff from the suit property. Hence, theplaintiff has come forward with the suit for bare injunctionrestraining the defendants from interfering with the peacefulpossession and prayed for a decree.3. The gist and essence of the written statement filed by thefirst defendant-Temple are as follows: The property belong to the Temple. The Temple has got everyright to lease it out to the third parties. The plaintiff cannotclaim the right to use the suit property as a matter of right. Bymere purchase of the house, the plaintiff cannot be deemed to havepurchased the right to use the suit property also. If theplaintiff wants to use the suit property, he ought to haveobtained permission from the Commissioner of H.R. & C.E., withoutwhich the plaintiff's claim is not valid in law. There is nocattle shed or manure pit or hay-stack in the suit property. Thesuit property is lying vacant. The first defendant is at libertyto lease out the suit property to anybody under public auction.There is no cause of action for the suit. The first defendantprayed for dismissal of the suit.4. The gist and essence of the written statement filed by thesecond defendant are as follows:The second defendant-Assistant Commissioner of H.R. & C.E. isnot necessary party to the suit. The suit is bad for misjoinder ofnecessary party. The Controlling Officer of the first defendant-Temple is necessary party. Only the Executive Officer and theTrustees are necessary parties. The Department has not passed anyorder in respect of the suit property. The suit is barred underSection 108 of the H.R. & C.E. Act. No notice has been given underSection 80 C.P.C. The plaintiff is not entitled for anyinjunction. Hence, the second defendant prayed for dismissal ofthe suit.5. The trial Court, after considering the averments both in https://hcservices.ecourts.gov.in/hcservices/ the plaint and in the written statement, has framed four issuesand considering the evidence of P.W.1, D.W.1 and Exs.A-1 to A-8,dismissed the suit. Against that, the plaintiff preferred appeal.The learned first appellate Judge, after framing two points fordetermination, concurred with the findings of the trial Court anddismissed the appeal. Hence, the Second Appeal has been filed bythe appellant-plaintiff. 6. At the time of admission of the Second Appeal, thefollowing substantial questions of law were framed forconsideration: "(i) Whether in law the Courts below are right infailing to see that the appellant being a lessee couldbe evicted only under due process of law?(ii) Whether in law the Courts below are right inoverlooking that under Section 105 of the Transfer ofProperty Act, the appellant is a lessee and that he isentitled to hold possession against the lessor?(iii) Whether in law the lower appellate Court wasright in simply copying the trial Court's judgment wordby word without independently considering the facts andevidence as contemplated under Order 43 Rule 1 C.P.C. ?" 7. The appellant as plaintiff filed the suit for bareinjunction stating that the suit property belongs to the firstdefendant-Temple, and one Ramaswami Mudaliar is the lessee underthe first defendant-Temple. The appellant-plaintiff purchased theadjacent house and leasehold right under Ex.A-1. RamaswamiMudaliar has paid kist and lease amount has been paid as seen fromExs.A-2 to A-4. The appellant-plaintiff is in possession andenjoyment of the same. Now, the respondents are attempting tointerfere with the possession. Hence, he has come forward with thesuit.8. The respondents as defendants filed written statement thatthe plaintiff is not a tenant as per the provisions of the TamilNadu Hindu Religious and Charitable Endowments Act and they areentitled to lease out the property belonging to the Temple inpublic auction. Hence, the suit is not maintainable. They prayedfor dismissal of the suit.9. The trial Court, after framing necessary issues andconsidering the oral and documentary evidence, dismissed the suit.Against that, the plaintiff preferred appeal. The first appellateCourt concurred with the findings of the trial Court and dismissedthe suit. Against that, the present appeal has been preferred bythe appellant-plaintiff. https://hcservices.ecourts.gov.in/hcservices/

10. Learned Senior Counsel appearing for the appellant-plaintiff would contend that the suit property belongs to thefirst respondent-Temple. It is under the control of the secondrespondent. Already, the property was enjoyed by one RamaswamiMudaliar as a lessee. He paid lease amount as per Exs.A-2 to A-4.When he sold his property under Ex.A-1, he also sold his leaseholdright to the appellant-plaintiff. The appellant is in possessionfrom 14.2.1985 onwards. That factum is known to the respondents.The respondents are attempting to interfere with the possession ofthe plaintiff. Both the trial Court and the appellate Court havecome to the conclusion that no injunction can be granted against atrue owner. Learned Senior Counsel appearing for the appellant-plaintiff culled out some portion of the plaint averments. Eventhough he sought for a blanket prayer of injunction, theplaintiff, in paragraph 5 of the plaint has stated that hecannot be evicted except by due process of law. So, even thetrespasser in possession could be evicted only by due process oflaw. Learned Senior Counsel appearing for the appellant-plaintiffrelied upon the decision of the Supreme Court reported in 2004 (3)L.W. 143 (Rame Gowda (D) by Lrs. Vs. M.Varadappa Naidu (D) by Lrs.and another) and sought for injunction till the appellant-plaintiff is evicted by due process of law.11. Per contra, learned counsel for the respondents-defendants would contend that the appellant-plaintiff is not alessee under them. He has not paid any rental amount. After theadmission of the Second Appeal, only as per the direction of thisCourt, he is paying the amount. As per the provisions of TamilNadu H.R. & C.E. Act, 1959, the appellant-plaintiff is said to bean encroacher. So, he has to be evicted as per the provisions ofSections 78 and 79 of the Tamil Nadu H.R. & C.E. Act. In view ofthe direction from the second defendant, the first respondent-first defendant is taking steps to lease out the property by wayof public auction and immediately, the appellant-plaintiff hascome forward with the suit and obtained interim order from thisCourt and hence, the respondents-defendants are not able toproceed further. Learned counsel for the respondents furthercontended that from 1985 till the direction of the High Court, hehas been enjoying the property without paying any amount and so,no leniency could be shown to him. The learned counsel for therespondents prayed for dismissal of the Second Appeal.12. Even though Substantial Question of No.(ii) has beenframed in respect of Section 105 of the Transfer of Property Act,in this case, it is not a suit filed for eviction by the landlord.Section 105 of the Transfer of Property Act is not applicable tothe facts of the present case and the said Substantial Question ofLaw No.(ii) is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

13. Even though Substantial Question of Law No.(iii) has beenframed with regard to Order 43 Rule 1 C.P.C., in respect ofdismissal of I.A.Nos.138 of 1996 and 96 of 2001 for reception ofadditional evidence, the first appellate Court, in paragraphs 16and 17 of the judgment, dismissed the said I.As. Even though thesaid substantial question of law has been raised in respect ofOrder 43 Rule 1 C.P.C., learned counsel for the appellant-plaintiff has not canvassed any arguments in this aspect. In suchcircumstances, it is not necessary to give answer to thissubstantial question of law. 14. Substantial Question of Law No.(i): Admittedly, the suit property belongs to the firstrespondent-Temple. One Ramaswami Mudaliar was a lessee under thefirst defendant. It is evidenced by Exs.A-2 to A-4 lease receipts.The case of the appellant-plaintiff is that he has purchased theleasehold rights. He filed Ex.A-1 which related to the house andnot to the suit property. In Ex.A-1, one of the boundaries hasbeen shown as the suit property and west of Arulmighu PuthuMariamman Temple is vacant site. In the said boundaries, theappellant-plaintiff has purchased the brick-built terrace houseand southern vacant portion is garden. Admittedly, the appellant-plaintiff is in possession of the property. D.W.1 also admittedthat the appellant is in possession of the property. To prove thepossession, the photographs have been marked as Exs.A-5 to A-8.The photographs have not been marked in accordance with law. De-hors Exs.A-5 to A-8, the respondents-defendants admitted that theappellant is in possession of the property. In the abovecircumstances, I am of the opinion that the appellant-plaintiff isin possession of the property.15. It is appropriate to consider the decision relied upon bythe learned Senior Counsel appearing for the appellant reported in2004 (3) L.W. 143 (cited supra), wherein, the Supreme Court heldas follows: "12. In the present case the Court has found theplaintiff as having failed in proving his title.Nevertheless, he has been found to be in settledpossession of the property. Even the defendant failed inproving his title over the disputed land so as tosubstantiate his entitlement to evict the plaintiff. TheTrial Court therefore left the question of title openand proceeded to determine the suit on the basis ofpossession, protecting the established possession andrestraining the attempted interference therewith. TheTrial Court and the High Court have rightly decided thesuit. It is still open to the defendant-appellant to https://hcservices.ecourts.gov.in/hcservices/ file a suit based on his title against the plaintiff-respondent and evict the latter on the formerestablishing his better right to possess the property." 16. Sections 78 and 79 of the Tamil Nadu H.R. & C.E. Act readas follows:"Section 78: Encroachment by persons on land orbuilding belonging to charitable or religiousinstitution or endowment and the eviction ofencroachers--(1) Where the Assistant Commissioner havingjurisdiction either suo motu or upon a complaint made bythe trustee has reason to believe that any person hasencroached upon (hereinafter in this section referred toas "encroacher") any land, building, tank, well, springor water-course or any space wherever situated belongingto the religious institution or endowment (hereinafterreferred to as the "property"), he shall report the facttogether with relevant particulars to the JointCommissioner having jurisdiction over the division inwhich the religious institution or endowment issituated.Explanation--For the purpose of this section, theexpression "encroacher" shall mean any person whounauthorisedly occupies any tank, well, spring or water-course or any property and to include--(a) any person who is in occupation of propertywithout the approval of the competent authority(sanctioning lease or mortgage or licence); and(b) any person who continues to remain in theproperty after the expiry of termination or cancellationof the lease, mortgage or licence granted to him.(2) Where on a perusal of the report received byhim under sub-section (1), the Joint Commissioner findsthat there is a prima facie case of encroachment, heshall cause to be served upon the encroacher a noticespecifying the particulars of the encroachment andcalling on him to show cause before a certain date whyan order requiring him to remove the encroachment beforethe date specified on the notice should not be made. Acopy of the notice shall also be sent to the trustees ofthe religious institution or endowment concerned.(3) The notice referred to in sub-section (2) shallbe served in such manner as may be prescribed.(4) Where, after considering the objections if any,of the encroacher received during the period specifiedin the notice referred to in sub-section (2) and afterconducting such inquiry as may be prescribed, the Joint https://hcservices.ecourts.gov.in/hcservices/ Commissioner is satisfied that there has been anencroachment, he may by order and for reasons to berecorded require the encroacher to remove theencroachment and deliver possession of the property(land or building or space) encroached upon to thetrustee before the date specified in such order.(5) During the pendency of the proceeding, theJoint Commissioner shall order the encroacher to depositsuch amount as may be specified by him in considerationof the use and occupation of the properties in questionin the manner prescribed.Section 79: Mode of eviction on failure of removalof the encroachment as directed by the JointCommissioner--(1) Where within the period specified inthe order under sub-section (4) of section 78, theencroacher has not removed the encroachment and has notvacated the property, the Assistant Commissioner havingjurisdiction over the division may remove theencroachment and obtain possession of the propertyencroached upon, taking such police assistance as may benecessary. Any Police Officer whose help is required forthis purpose shall render necessary help to theAssistant Commissioner.(2) Nothing in sub-section (1) shall prevent anyperson aggrieved by the order of the Joint Commissionerunder sub-section (4) of section 78 from instituting asuit in a Court to establish that the religiousinstitution or endowment has no title to the property:Provided that no Civil Court shall take cognizanceof any suit instituted after six months from the date ofreceipt of the order under sub-section (4) of section78:Provided further that no such suit shall beinstituted by a person who is let into possession of theproperty or who is a lessee, licensee or mortgagee ofthe religious institution or endowment.(3) No injunction shall be granted by any Court inrespect of any proceeding taken or about to be taken bythe Joint Commissioner under section 78."17. As per Explanation to sub-section (1) of Section 78, aperson who remains in a property after expiry of the lease, isalso an encroacher. So, the appellant-plaintiff can be evictedonly as per the provisions laid down under Section 78 of the TamilNadu H.R. & C.E. Act. Learned Senior Counsel appearing for theappellant-plaintiff would contend that, till then, the appellant-plaintiff's possession can be protected by way of grantinginjunction. https://hcservices.ecourts.gov.in/hcservices/

18. It is true that the appellant-plaintiff has made theaverment in paragraph 5 of the plaint that he will have to beevicted except by due process of law. But in the prayer of thesuit, the expression "except by due process of law" is missing.But however, his possession is to be protected. Moreover,considering the arguments and considering Sections 78 and 79 ofthe Tamil Nadu H.R. & C.E. Act, I am of the opinion that if theinjunction is granted, the appellant-plaintiff would prevent therespondents-defendants, the owners of the property, fromproceeding in accordance with law. In the above circumstances, asper Sections 78 and 79 of the Tamil Nadu H.R. & C.E. Act, therespondents-defendants are entitled to evict the appellant-plaintiff. So, in pursuance of the decision of the Supreme Courtreported in 2004 (3) L.W. 143 (cited supra) and consideringSections 78 and 79 of the Tamil Nadu H.R. & C.E. Act, theappellant-plaintiff will have to be evicted only under due processof law. Hence, the appellant-plaintiff is not entitled toinjunction against the true owner. The respondents-defendants aredirected to evict the appellant-plaintiff only in accordance withlaw. 19. With the above observations and directions, the SecondAppeal is dismissed. No costs. C.M.P. is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. Additional Subordinate Judge, Cuddalore. 2. Principal District Munsif, Cuddalore.3. Section Officer, V.R. Section, High Court, Madras.+1cc to Spl. Govt. Pleader Sr 71480+1cc to Mr.T.Sasindran, Advocate Sr 71288+1cc to Mr.R.Subramanian, Advocate Sr 71662MBS(CO)km/7.1.S.A.No.315 of 2003