THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY Appeal Suit No.248 of 2010 A/m.Pathala Ponniamman Temple, Attached to Arulmighu Gangadareswarar Temple, Rep.by its Executive Officer, No.131, Gangadareswarar Koil Street, Purasawalkam, Chennai -84. … Appellant In that view of the matter, I answer the question that the plaintiff is not entitled for the relief of vacant possession as well as a permanent injunction, in the present Appeal as filed by the plaintiff/Temple, not on merits but for the defect of not arraying the Manyadar as also a defendant in the suit for eviction.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 25.11.2022
Judgment Delivered on : 02.12.2022
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Appeal Suit No.248 of 2010
A/m.Pathala Ponniamman Temple,
Arulmighu Gangadareswarar Temple,
Rep.by its Executive Officer,
No.131, Gangadareswarar Koil Street,
Purasawalkam, Chennai -84. … Appellant
Padmavathi … Respondent
Appeal Suit is filed under Order XLI Rule 1 read with Section 96 of the Code of Civil Procedure, 1908, against the Judgment and Decree made in O.S.No.6012 of 2006, dated 30.07.2008 passed by the learned VII-Additional City Civil Judge, at Chennai.
For Appellant : Mr.S.Rajendra Kumar,
for M/s.Norton and Grant
For Respondent : Mr.G.Saravanan
A.The Appeal :
This Appeal Suit is filed against the Judgment and decree in O.S.No.6012 of 2006, in and by which, the suit filed by the plaintiff/Temple, directing the defendant to quit and deliver the vacant possession and for permanent injunction and for the future damages, was dismissed.
B.The Case of the Plaintiff:
2.The case of the plaintiff/Temple is that the suit property ad-measuring an extent of 795 Sq.ft., in Survey No.3182, bearing Door No.61, Barracca Road First Street, Nammalwarpet, Chennai -12, belongs to the Temple. The defendant is in occupation of the suit property without paying any rent. The defendant is neither a tenant nor a permissible occupier of the plaintiff/Temple and hence, she is a trespasser who is in possession detrimental to the interests of the plaintiff/Temple. On 28.06.2006, the defendant demolished the existing superstructure and was trying to build a pucca construction by erecting pillars without any permission from the plaintiff/Temple. The defendant was orally instructed to stop the construction and was also issued a telegraphic notice on 28.06.2006. On 01.11.2001, a Fair Rent Committee fixed Rs.2.56 per Sq.ft., in respect of the Survery number and the suit premises is part of such area. Therefore, the defendant is also liable to pay the same as damages and for use of the occupation. Hence, the suit.
C.The case of the defendant :
3.The suit property is a dedicated “Bolichetty Manyam”. The defendant’s adoptive father, namely, Kottaiah and adoptive mother, namely, Krishnammal, were paying the land rent to the Trustee of the Temple from the year 1930 to 1982. In the year 1968, the said Kottaiah put up the existing superstructure and settled the same in favour of the defendant by a registered Settlement Deed dated 24.09.1971, and from the said date the defendant was in possession and enjoyment of the suit property. From August, 1982, the concerned Trustee who was collecting the rent, stopped collecting the rent. However, in the year 2006, a person claiming to be a representative of the Temple demanded illegal ratification from the defendant. When the defendant did not pay the same this proceeding was filed with an oblique motive. Since the defendant and the predecessors in title are in possession for a such long number of years, the defendant has also perfected title by way of adverse possession. The Executive Officer did not have the sanction to file the instant suit.
D. Reply of the Plaintiff :
4. A reply statement was filed on behalf of the plaintiff contending that the permission of the Commissioner was not necessary, as the Executive Officer is empowered as per the first document filed along with the plaint. The tenants under the Manyadhars were requested attorn the tenancy in favour of the plaintiff/Temple and the defendant did not do the same, therefore, the defendant cannot be termed as a tenant or become a permissive occupier. The allegation on the extraneous consideration is denied as false. The defendant has not acquired any prescriptive title.
E. The Issues & The Trial:
5. On the said pleadings, the Trial Court framed the three following issues :-
“1) Whether the plaintiff is entitled for the relief of vacant possession?
2) Whether the plaintiff is entitled for the relief of permanent injunction?
3) To what other relief ?”
6. On the said issues, the Executive Officer of the plaintiff/Temple was examined as P.W.1 and Exs.A-1 to A.4 were marked. The defendant examined herself as D.W.1 and Exs.B-1 to B-5 were marked.
F. The Findings of the Trial Court :
7. Thereafter, the Trial Court proceeded to consider the case of the parties and by a Judgment dated 30.07.2008 found that from the evidence on record, it is clear that one Arumugam was the Manyadhar and he has been receiving rents from the defendant at the rate of Rs.5 per month from the defendant’s predecessors, namely, Kottaiah and thereafter, from the defendant. Therefore, the Trial Court found that the said “Bolichetty Manyadhar” voluntarily stopped collecting rent from the year 1982. The Trial Court found that from the year 1981, there are disputes between the “Bolichetty Manyadhars” and the plaintiff/Temple which led to litigation. The said Manyadhars filed a suit in O.S.No.862 of 1981, and the decree of the said suit was marked as Ex.A-4, from which it is clear that the said decree covers the suit property and the Manyadhars’ rights to collect the rent, until their eviction by due process of law was declared and otherwise than by due process of law, the Manyadhars possession cannot be disturbed. Even though the Temple filed a suit in O.S.No.4290 of 1997 to declare that the Temple is the absolute owner of the property, in view of the above Judgment, the Manyadhars have to be evicted by due process of law. Even though it was pleaded by the plaintiff/Temple that they have called upon by various tenants to attorn the tenancy in favour of the Temple, no evidence was produced in support of the same. Therefore, it is found that the defendant was the tenant under the Manyadhars by paying the rents, and even after the stoppage of collection of rent they have to be considered as tenants by holding over and thus, the reliefs prayed for by the Temple cannot be granted to it. The Trial Court rejected the contention that the suit is not maintainable at the instance of the Executive Officer, considering the provisions in the scheme of the suit decree marked as Ex.A-1 and on the above findings the suit was dismissed. As against which, the present Appeal Suit is filed.
8. Heard Mr.S.Rajendra Kumar, learned Counsel for the Appellant and Mr.G.Saravanan, learned Counsel appearing for the Respondent.
9. Mr.S.Rajendra Kumar, learned Counsel for the appellant taking this Court through the pleadings and evidence would submit that firstly the Temple has approached the Court and has obtained a Judgment and Decree against the said Manyadhars in O.S.No.4920 of 1997, which is marked as Exs.A-3. The Jurisdiction of the Civil Court is not barred by law, and therefore, the plaintiff/Temple approached the Civil Court and the Civil Court decreed the suit by declaring that the plaintiff/Temple is the owner of the property. Therefore, once the said declaration was granted in favour of the Temple, there was no further necessity to evict the Manyadhars. The Manyadhars are no longer in the scene and they are not performing any “Bolichetty Manyam”. Admittedly, the respondent/defendant is neither a tenant nor a permissive occupier and therefore, she is a trespasser. The Manyam is only a right to use the property so long as they perform the Manyam and is in the nature of leave and license. Once the purpose is stopped, there need not be eviction of the Manyadhars. The defendant is the rank trespasser and is liable to be evicted.
9.1. The learned Counsel relied upon the Judgment in Srinivasan and Six Others Vs. Sri Madhyarjuneswaraswami1, for the proposition, that the suit filed by the Temple before the Civil Court was in order, as there was no bar or ouster of the jurisdiction of the Civil Courts. The learned Counsel also relied upon the Judgment of the Hon’ble Supreme Court of India, in Joint Commissioner, HRCE, Admn. Deptt. v. Jayaraman2, for the proposition that this Court is the Parens patriae in respect of the idol. The learned Counsel had also placed strong reliance on Ex.B-2, Settlement Deed, which is the defendant’s own title deed in which the title of the plaintiff is categorically admitted. Therefore, once the plaintiff/Temple is the owner of the property, and the defendant residing therein is liable to be evicted.
10. Per contra, Mr. G. Saravanan, the learned Counsel appearing on behalf of the respondent would submit that in this case the defendant alone has been picked and chosen for filing the suit. The Executive Officer has no right to file a suit as per the provisions of the Tamil Nadu Hindu Religious & Charitable Endowments Act, and the Scheme Suit merely permits him to represent the Temple and it does not specifically empower him to file a suit on behalf of the Temple. There must be specific permission to file the present suit. The learned Counsel for the respondent/defendant would submit that declaration of the decree obtained by the plaintiff/Temple under Exs.A-3 and A-4 is per se null and void as it is for a mere declaration without any consequential relief. The learned Counsel has relied upon the Judgment of the Hon’ble Supreme Court of India, in Union of India Vs. Ibrahim – and Anr.3, to contend that a suit for a mere declaration and the decree granted thereof without any consequential relief is null and void. He would further submit that when the lis between the parties has already been concluded by the earlier suit between the Manyadhars and the plaintiff’s Temple under Ex.B-5/decree, in violation of the same, the plaintiff/Temple cannot maintain the present suit. He would further submit that the plea of adverse possession has to be taken only as an alternative plea as the temple had even denied the fact about the “Bolichetty Manyam”. Therefore, he would pray that the Appeal Suit be dismissed.
G.Points for consideration :
11. Upon consideration of rival submissions made on either side and perused the materials on record, the following questions arise for consideration:-
“(i) Whether the plaintiff is entitled seek for eviction of the defendant who is a tenant under Manyadar ?
(ii) Whether the suit filed by the Executive Officer is maintainable ?
(ii) To what relief the parties are entitled to ?”
H.Question No.(i) :
12. Even as per Ex.B-2/Settlement Deed, which is a title document of the defendant, the title of the plaintiff/Temple regarding the suit land is admitted. Even the first sentence of the document reads as follows:-
“1971k; tUc&k; brg;lk;gu; khjk; 24k; njjp. brd;ddpg;gl;odk;. g[uirthf;fk; otprd; vz;/6. guhf;fh nuhL. ek;khs;thu;ngl;il. brd;id 12. bghyp brl;o khzpak;. ghjhs bghd;dpak;khs; njt!jhdj;jpy; FoapUf;Fk; cg;gu Fyk;. ,e;J kjk;. 53 taJs;s fhy”;brd;w fd;dhl;o ek;ika;a nk!;jpup Fkhud; K.N.nfhl;ila;ah 1. nkw;go gl;ozk;. nkw;go bjUt[.///// ”
The last sentence of the document in the schedule of the property reads as follows:-
“//// ,e;j brhj;jpd; kjpg;g[ U:/12500-? nkw;go kid ghjhs bghd;dak;kd; njt!;j;jhdj;Jf;Fr; brhe;jkhdJ/”
13. This apart, even in the written statement the title of the Temple in respect of the suit land is not disputed. Therefore, the arguments relating to the validity of the declaration of the decree obtained by the plaintiff/Temple becomes superfluous. It also suffice to state that there is no consequential relief which was granted in the said decree. On the contrary, in the decree obtained by the Manyadhars, who are the landlords in respect of the defendant, a decree has been granted specifically enabling them to collect the rents and to evict them only in accordance with the due process of law. The arguments as if both the decrees contradict each other is incorrect. Both decrees have to be read in tandem and they do not oppose each other. The Temple is the owner of the property. The Manyadhars only have the right to use the property for the specific purpose/ exploit the property so long as they perform the specific purpose of “Bolichetty Manyam”. But, however, even if they do not perform the “Bolichetty Manyam” and become liable to be evicted. As per to the Judgment and decree in Ex.B-5, they have to be evicted in accordance with the due process of law and the Temple on its own cannot re-enter the property. That being the situation from Ex.B-1/tenancy receipts and Ex.B-2/Settlement Deed, it can be seen that the defendant is not a rank trespasser or third party, but she is the legal heir of the tenant originally inducted by the Manyadhars. The learned Counsel for the appellant submitted that what is granted to the Manyadhars is nothing but the permission to use the property, so long as to continue the Bolichetty Manyam and submitted that it is in the nature of a license. Firstly, the terms on which, the Manyadhars were granted are not placed before this Court so as to determine as to whether the same would be a leave and license or lease or any other type of grant. Secondly, by way of Judgment interparties when the competent Civil Court has held that they have to be evicted in accordance with due process of law, I am afraid that a contra view can be taken in this Appeal. The defendant’s adoptive parents have been paying the rent, and thereafter they settled the superstructure on the defendant. Merely because the Manyadhars are not collecting rent and the same will not change the character of possession of the defendant. In that view of the matter, the plaintiff ought to have filed the suit against the Manyadhars as well as the Manyadhar’s tenant and filing a suit against the tenant alone by contending as if the tenant is a trespasser is not in order. The Trial Court has rightly held so. According the point is answered.
I. Question No. (ii) :
14. In that view of the matter, answer to the other technical question as to whether the clause in the scheme decree by itself is enough of Executive Officer to file a suit or whether he should obtain special permission from the Commissioner becomes academic and need not be gone into in this appeal suit.
J. Question No. (iii)
15. In that view of the matter, I answer the question that the plaintiff is not entitled for the relief of vacant possession as well as a permanent injunction, in the present Appeal as filed by the plaintiff/Temple, not on merits but for the defect of not arraying the Manyadar as also a defendant in the suit for eviction. As rightly contended by the learned Counsel for the Appellant, this Court being the Parens Patrea of the Idol and its property, as to ensure that proper steps were taken by the plaintiff/Temple to secure the property, it would be open for the plaintiff/Temple to file a fresh suit by arraying the Manyadhars and the defendant herein, jointly as defendants and file a fresh suit for eviction. Due pre-notice will also be issued in accordance with the law before proceeding as fresh. It would also be open for the authorities, in the meanwhile, to accept the defendant directly as a tenant under them on the appropriate amount of rent fixed by them, if they choose it to fit to be in the best interest of the Temple. In such a case, notice has to be issued to the Manyadhars or their legal heirs and a decision may be taken appropriately.
J.In the Result :
(i) The Appeal Suit in A.S.No.248 of 2010 is dismissed, however, subject to the observations in the above paragraphs;
(ii) There will be no order as to costs.
Index : yes/no
D.BHARATHA CHAKRAVARTHY, J.
1.The VII-Additional City Civil Court, Chennai.
2.The Section officer, Original side, High Court of Madras.
Pre-Delivery Judgment in
A.S.No.248 of 2010