Madras High Court
Benash Trust vs Y.Pushpanathan on 12 October, 2012
Author: G.Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.10.2012
Coram:
THE HONOURABLE MR.JUSTICE G. RAJASURIA
A.S.Nos.827 and 1058 of 2009
Benash Trust, a Public Trust,
Rep. By one of the Board of
Trustees, Mr.Maralithiappan
No.06, Narayanan Street
Ayanavaram
Chennai 600 023. .. Appellant in A.S.No.827/2009
Y.Pushpanathan .. Appellant in A.S.No.1058/2009
vs.
Y.Pushpanathan .. Respondent in A.S.No.827/2009
1. Benash Trust
Rep. By its Trustee
K.M.Maralithiappan
No.6, Narayanan Street
Ayanavaram, Chennai 600 023.
2. Richard Thomas
3. Russel Raj .. Respondents in A.S.No.1058/2009
These Appeals are focussed as against the judgments and decrees dated 06.03.2009 passed in O.S.Nos.2071 of 2006 and 3499 of 2006 by the II Additional Judge, City Civil Court, Chennai.
IN A.S.No.827 of 2009:
For appellant : Mr.S.W.Kanagaraj
For Respondent : Mr.A.Ilango
IN A.S.No.1058/2009:
For appellant : Mr.A.Ilango
For Respondent : Mr.S.W.Kanagaraj for R1
JUDGMENT
These appeals are focussed animadverting upon the judgments and decrees dated 06.03.2009 passed in O.S.Nos.2071 of 2006 and 3499 of 2006 by the learned II Additional Judge, City Civil Court, Chennai.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Niggard and bereft of details, the germane facts absolutely necessary for the disposal of these two appeals would run thus:
(a) There are two suit filed by the plaintiff, seeking the relief as under:
O.S.No.2071 of 2006:
"(a) To grant injunction restraining the defendant who is a mere trespasser from occupying the suit property;
(b) To grant damages at the rate of Rs.4,000/- p.m. For illegal occupation of the suit property from 01.08.2005 to date of the defendant is may to surrender the property; and
(c) For costs."
O.S.No.3499 of 2006:
"(a) To declare that the plaintiff trust is entitled to manage the suit property;
(b) To restrain defendants in any way interfering with the affairs of the management of the suit property; and
(c) For costs." (extracted as such)
(b)The defendant/Pushpanathan in O.S.2071 of 2006 filed his written statement resisting the suit.
(c) The trial Court framed the relevant issues.
(d) Up went the joint trial, wherein, on the side of the plaintiff, one David Raveendran was examined as P.W.1 and Exs.A1 to A30 were marked; on the side of the defendants, D1/Pushpanathan examined himself as D.W.1 and Exs.B1 to B3 were marked.
(e) Ultimately the trial Court dismissed the suit O.S.No.2071 of 2006, but decreed the suit O.S.No.3499 of 2006.
4. Being aggrieved by and dissatisfied with the dismissal of the suit O.S.No.2071 of 2006, the plaintiff Trust filed the appeal A.S.No.827 of 2009 for setting aside the judgment and decree in O.S.No.2071 of 2006 and for decreeing the suit. Whereas, Pushpanathan preferred the appeal in A.S.No.1058 of 2009, on various grounds for setting aside the judgment and decree in O.S.No.3499 of 2006.
5. The learned counsel for the Trust would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(a) One Subramaniam purchased a vast extent of property vide the sale deed as contained in Exs.A1 and A2 and in a portion of it, he raised a Church also. He happened to be the founder trustee of the Trust by name, 'Benash Trust', vide Ex.A11. The properties as contemplated in Exs.A1 and A2 were dedicated to the Trust. While so, the said Subramaniam, from out of his own earnings and funds, raised an out house like structure for himself to stay in it, whenever he visited Chennai by way of sojourn. Subsequently, the said Pushpanathan/D1 entreated and implored him that he might be permitted to occupy it with his family members, so that he would take care to see that there would be no trespass or any encroachment into the said property covered under Exs.A1 and A2. The said Subramaniam also permitted him to do so.
(b) The said Pushpanathan as caretaker had been in receipt of a sum of Rs.200/- (Rupees two hundred only) as salary and in that capacity, he had been permitted to occupy the said out house found described in the 'B' schedule of the plaint.
(c) The Trustees of the plaintiff Trust have been maintaining the property as well as the Church; while so, the first defendant's conduct became contumacious, which made the Trustees to cancel the permission granted to him to occupy as a caretaker of the 'B' scheduled property, by sending two notices as contained in Exs.A24 and A25. Despite that he failed to vacate the premises; whereupon the suit O.S.No.2071 of 2006 was filed. However, the lower Court without taking into consideration the salient features, simply observed as though a suit for recovery of possession should have been filed ignoring the settled proposition of law, that in the case of a caretaker is concerned, after cancellation of permission, injunction could be sought for as against him as per law, as continuation after cancellation of permission, would render him liable to pay damages for use and occupation also and that factum also was ignored by the lower Court. As such, in total disregard of the settled proposition of law, the lower Court passed a judgment dismissing O.S.No.2071 of 2006, warranting interference in the appeal.
(d) However, the lower Court correctly decreed the suit O.S.No.3499 of 2006, as the defendants were trying to create flutter in the smooth administration of the Trust and that judgment warrants no interference.
6. Per contra, in a bid to extirpate and torpedo the arguments as put forth and set forth on the side of the Trust, the learned counsel for Pushpanathan in both the suits, would pyramid his arguments, which could succinctly and precisely be set out thus:
(a) Pushpanathan is entitled to continue in possession of the 'B' schedule of the property in O.S.No.2071 of 2006 as he had put up that structure by spending his own money.
(b) The said Subramaniam and the trustees have not as claimed in the plaint, put Pushpanathan in possession as a permissive occupier.
(c) In fact, Pushpanathan happened to be the person who participated actively in the setting up of the Church concerned and also in maintaining the same. When Subramania, and his men attempted to have a retrograde step and convert the Church as well as the Church premises into the personal property, the first defendant/Pushpanathan and others objected to it and in fact, Pushpanathan is interested in the smooth conduct of the Church as well as the maintenance of the premises.
(d) There is no question of paying any damages for use and occupation. The lower Court in O.S.No.2071 of 1996 correctly understood the provision of law and dismissed it by holding that in the absence of a prayer for recovery of possession, by mere injunction, the occupation of the defendant/Pushpanathan, cannot be got rid of from the 'B' scheduled property. So far O.S.No.3499 of 2006 is concerned, there need not be any mandate or injunction as against Pushpanathan, because Pushpanathan in no way caused disturbance to the smooth functioning of the Trust.
Accordingly he would pray for the dismissal of A.S.No.827 of 2009 and for allowing A.S.No.1058 of 2009.
7. The points for consideration are as to:
(1) Whether the suit O.S.No.2071 of 2006 as framed and filed by the plaintiff instead of filing the suit for recovery of possession even as per their averments was maintainable? and whether the trial Court was justified in holding that a suit for recovery of possession alone should have been filed?
(2) Whether the rejection of the prayer of the Trust as against Pushpanathan for damages for use and occupation is correct?
(3) Whether the trial Court was justified in passing a judgment and decree as against Pushpanathan and others, even though according to Pushpanathan, there was no interference with the smooth administration of the Trust?
8. All these points are taken together for discussion as they inter linked and inter woven with one another.
9. At the outset I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:
(1) AIR 1976 SC 2340 [D.H.MANIAR AND OTHERS V. WAMAN LAXMAN KUDAV]; certain excerpts from it would run thus:
"10. ........ ........ A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination can be called a licensee."
(emphasis supplied) (2) (2012) 5 SCC 370 [MARIA MARGARIDA SEQUEIRA FERNANDES AND OTHERS V. ERASMO JACK DE SEQUEIRA (DEAD) THROUGH LRs.; certain excerpts from it would run thus:
"67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim a for recovery of possession or claiming a right to continue in possession, to establish that he ha such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession."
(3) AIR 2012 SC 2010 A.SHANMUGAM V. ARIYA KSHATRIAY RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM; certain excerpts from it would run thus:
"False and irrelevant pleas:
41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs.
42. On the facts of the present case, following principles emerge:
1. It is the bounden duty of the court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law Court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the Court should in addition to full restitution impose appropriate costs. The Court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. ........"
(4) (2005) 7 SCC 667 JOSEPH SEVERANCE AND OTHERS V. BENNY MATHEW AND OTHERS; certain excerpts from it would run thus:
"6. It is to be noted that though the High Court reversed the findings recorded by the trial Court and the first appellate Court, no question of law was formulated. This is clearly contrary to the mandate of sub-section (4) of Section 100 of the Code of Civil Procedure, 1908 (in short "CPC"). Ordinarily in such a circumstance we would have remitted the matter to the High Court to formulate substantial question of law, if any, and decide the matter. But considering the long passage of time and the prayer of the parties the dispute may be resolved in the present appeal. It is also not necessary to remit the matter as the appellants are otherwise entitled to succeed.
7. There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate court the stress was on something else i.e. the effect of Section 60(b) of the Easements Act, 1882 (in short the Easements Act) and the alleged non- maintainability of the suit on the ground of non-joinder of necessary parties. Before the High Court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking, the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. The licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case the licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict the licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises, the suit will be maintainable."
10. A plain running of the eye over those excerpts including the entire judgments, would highlight and spotlight the fact that in respect of licensees and permissive occupiers, and also occupation by caretakers, are concerned, it is sufficient if license or permission is cancelled and a suit for mandatory injunction is filed as against them. The only probe that is required by the Court in a suit of this nature by the owner of the property, is to find out as to whether there was proper cancellation of permission and it should also be seen as to whether after such cancellation, there was any connivance on the part of the owner relating to the continuation of such occupier in the suit property even after such cancellation of permission. But the lower Court misdirected itself and it was very much carried away by the fact that physically Pushpanathan has been in possession and enjoyment of the suit property and that there was no prayer for recovery of possession. In my considered opinion such an approach is quite antithetical to the well established principles as found enshrined in the decision of the Hon'ble Apex Court set out supra.
11. Even though Pushpanathan would claim that he raised construction in the 'B' scheduled property, absolutely there is not even any itsy-bitsy evidence put forth on his side. However, the plaintiff would rely on Exs.A4 to A6 the receipts issued by one Sharmil constructor to the effect that, it on receipt of money from Subramaniam raised the out house in the 'B' scheduled property. The learned counsel for Pushpanathan would argue that those are all self serving documents created for the purpose of buttressing and fortifying the plaintiff's false claim as though it was Subramaniam who raised the structure. According to him, anybody could secure such documents and produce before the Court.
12. I would like to recollect the popular legal adage that preponderance of probabilities would govern the adjudication in civil cases. The probabilities cannot be lost sight of. The said Pushpananthan started occupying the outhouse and he was also in receipt of a sum of Rs.200/- (Rupees two hundred only) per month as his salary. It is quite unimaginable that a person who agreed to receive a sum of Rs.200/- per month as salary for looking after the premises, would have spent more than Rs.2,00,000/- (Rupees two lakhs only) or so for the purpose of raising such outhouse during the year 1996. I would like view this matter from one other angle also.
13. Indubitably and indisputably, unarguably and unassailably, the land on which the said outhouse was constructed belongs to the Trust and there is no controversy over it. When such is the factual position, even assuming that Pushpanathan raised that structure nearby the Church in the said premises, it would amount to he having dedicated that outhouse for the Trust and ultimately for the welfare of the Church. I am at a lost to understand and there is no knowing of the fact as to how an individual who claims to be a caretaker and also expressing his affiliation to the same Church could claim that he had put up a structure from out of his money and claim his ownership over it. If really as narrated by Pushpanathan, such structure had been constructed at his cost in the Church premises, it amounts himself having dedicated the outhouse itself for the welfare of the Trust and the Church. But the lower Court on that aspect, after considering pro et contra, gave a finding correctly that Pushpanathan did not raise the superstructure.
14. It is also crystal clear that the relationship between the plaintiff and the defendant is not one that of landlord and the tenant and it is not the case of Pushpanathan that he is a statutory tenant under the plaintiff etc. In such a case, there is no denying of the fact that Exs.A24 and A25 were sufficient enough to cancel the permission of occupancy granted in favour of Pushpanathan in respect of the property. It is also quite evident that after such cancellation of the permission, the plaintiff also did not pay any salary to Pushpanathan, whereby no connivance for his continuance of occupation could be discerned.
15. The learned counsel for the defendant would invite the attention of this Court to the first prayer in O.S.No.2071 of 2006 and advance his arguments that such a prayer for injunction indicates and exemplifies as though Pushpanathan is not in possession and that he should be prevented from being in possession, even though in the body of the plaint they candidly and categorically admitted that Pushpnathan has been in possession and enjoyment of the "B" scheduled property; Whereas, the learned counsel for the plaintiff would correctly and convincingly reply by pointing out that the words used in the prayer, have to be understood in proper perspective. It is not the case as though the plaintiff stated that Pushpanathan is not in occupation of the premises. What are all the plaintiff intended to signify by those words is that Pushpanathan should not be allowed to continue in the suit property and to that effect injunction has to be given.
16. The ultimate aim is that he should seie to occupy the property because the legal possession is always that the owner namely the Trust, in such a case, the question of owner himself asking for possession would be a well neigh impossibility legally.
17. I would like to agree with his submission. In the case of permissive occupation, legal possession is deemed to be with the owner and the permissive occupier cannot be deemed to be in any legal possession of the property. No doubt, physically he is in occupation of the premises. Once that licence is cancelled, his continuance would be construed as trespass. A mere running of the eye over those decisions referred to supra, would reiterate the same point only. The lower Court however failed to understand the nuance involved in the concepts animus possidendi and corpus possessionis, which are extracted hereunder from thefamous treatise Salmond's Jurisprudence for ready reference:
". . . . . Salmond considered that possession consisted of a corpus possessionis and an animus possidendi. The former, he thought, comprised both the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.
It is certainly true that in assessing whether possession has been acquired, lost or abandoned intention may be highly relevant. . . . . .
The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it in which event he clearly has possession we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others."(emphasis supplied)
18. Then the question arises as to whether the plaintiff was enjoined to file a suit for recovery of possession, in view of the defendant Pushpanathan having continued to occupy the premises even after the expiry of the period contemplated under Ex.A25, till the filing of the suit.
19. At this juncture I would like to point out that if after the cancellation of the permission as evidenced by Ex.A25, there was any connivance on the part of the plaintiff for the continuance of the defendant, then the matter would be different. In such a case only, Puspanathan's possession would amount to trespasser in established possession, warranting the plaintiff to file a suit for recovery of possession, but there is no iota or shred, shard or miniscule extent of evidence to demonstrate and display that he continued to be in possession as a trespasser. Hence, the scope of the suit as well as the prayer should be understood in proper perspective in the light of the evidence adduced on both sides. My analysis supra would point up that the plaintiff's suit cannot be dismissed on the ground that it was bad for want of a prayer for recovery of possession and there is nothing to indicate that after cancellation of permission, the continuance of Pushpanathan in the premises was connived at by the owner so as to clothe him with the occupation of the premises as a trespasser in established possession, warranting recovery of possession at the instance of the plaintiff.
20. An attempt also has been made by Pushpanathan to resist the suit of the plaintiff on the ground that the plaintiff Trust had no locus standi to file such a suit. In support of such a plea, the learned counsel for Pushpanathan would put forth and set forth his arguments to the effect that there is nothing to indicate that the said Subramaniam, who happened to be the original owner of the properties described in the 'A' schedule, of which 'B' schedule forms a part, dedicated the property or transferred the property, either under the Trust deed or by some other means.
21. Per contra, the learned counsel for the respondent would invite the attention of this Court to the written statement filed by Pushpanathan himself and point out that he himself admitted that no more Subramaniam in his individual capacity was having any right over the said premises, and when allegedly there was an attempt on the part of the some persons on behalf of Subramaniam to convert the Church property into some other use, there was stiff resistance at the instance of Pushpanathan and others, who are interested in the Church and its properties. As such I would like to agree with the submission of the learned counsel for the Trust.
22. A plain reading of the last paragraph in page No.3 of the written statement of Pushpanathan would point up and show up, indicate and accentuate that according to him, the property described in the 'A' schedule of the plaint of which 'B' schedule forms a part is no more an individual property of Subramaniam, but it belongs to the Church. In such a case, he cannot challenge the locus standi of the plaintiff, which is a Trust created by Subramaniam and others and the Trust alone is running the Church and also in maintenance of the Church properties. Wherefore, the distinction sought to be made by P.W.1 would amount to tweedledum and tweedle dee, between the rock and the hard place and not one that of chalk and cheese.
23. I recollect the maxim:
In re dubia magis infitiatio quam affirmatio intelligenda : In a doubtful matter, the negation is to be understood rather than the affirmation.
24. Even though the defendant would come forward with certain pleas like the one that he only raised the superstructure and that the plaintiff had no locus standi to prosecute the case etc., yet absolutely there is no legally acceptable evidence on his part.
25. Per contra, the plaintiff independently filed the documents and adduced evidence highlighting that the very church as well as the Trust happened to be the brain child of Subramaniam and it was he who constructed the Church and also dedicated the properties contained in Exs.A1 and A2 as found described in the 'A' schedule of the plaint and also put up the outhouse which constitutes the 'B' schedule, which forms part of the 'A' schedule property. In the wake of glaring and clear evidence, I am of the considered view that the lower Court was not justified in simply throwing the baby along with the bath water without properly appreciating the evidence as well as applying the correct law and in dismissing the suit O.S.No.2071 of 2006, warranting interference in the appeal. Accordingly the judgment of dismissal of O.S.No.2071 of 2006 is set aside and the suit has to be decreed granting mandatory injunction as against the defendant not to occupy the suit property any more.
26. The contention on the side of the Trust that the lower Court unjustifiably dismissed the prayer for damages for use and occupation finds favour with this Court, for the reason that after cancellation of the permission, Pushpanathan's continuance in the 'B' scheduled property would render him liable for damages for use and occupation and there could be no doubt about it. However, this Court directs a separate enquiry to be conducted with regard to quantification of damages for use and occupation and the plaintiff is given permission to file a separate application in that regard within two months from the date of receipt of a copy of this order to get assessed the damages for use and occupation and at that time, the defendant could very well participate in the proceedings for proper quantification of the damages alone for use and occupation from the date of cancellation of the permission till he ceases to occupy the property.
Accordingly, A.S.No.827 of 2009 is allowed.
27. Relating to A.S.No.1058 of 2009 is concerned, my above discussion would also exemplify and display the status of Pushpanathan as only that of a caretaker and that when he was occupying the outhouse, he was in receipt of Rs.200/- as salary. In such a case, it is also glaringly and pellucidly clear that in view of the bad blood started running in the relationship of the Trustees of the plaintiff Trust and Pushpanathan, there were some interference at the instance of Pushpanathan.
28. The learned counsel for the plaintiff would invite the attention of this Court to the evidentiary portion of the records and point out that the police was constrained to interfere, because Pushpanathan and others tried to interfere with the running of the Church. Wherefore, the lower Court considering pro et contra correctly decreed the suit O.S.No.3499 of 2006, warranting no interference in the appeal.
29. In fact the grievance of the Pushpanathan was to the effect that the Trustees are attempting to convert the Church property as well as the Church into some other profitable organisation quite antithetical to the mandates as found embedded in Ex.A11. At this juncture, I would like to point out that if at all Pushpanathan who is interested in the running of the Church is aggrieved, it is not open for him to physically cause any obstruction to the running of the Church and the Trust and he has not chosen to initiate appropriate legal action questioning and challenging the alleged mis-management of the Trustees or the alleged attempt on the part of the Trustees to convert the Trust properties into some other use.
30. In such a case, the trial Court was justified in rendering the judgment in favour of the plaintiff in O.S.No.3499 of 2006, warranting no interference. Accordingly the points are decided.
31. While arguing the case, the learned counsel for Pushpanathan also would submit that his client has been in occupation of the property for a pretty long time with his family members and his children are studying in school and college and holus bolus and in the middle of the academic year if his client is desist from the occupying the property, then it would cause discomfiture and discomfort not only to himself but to his family members.
32. Taking into consideration all these facts, I am of the considered view that Pushpanathan shall file within 15 days an affidavit undertaking that he would desist from occupying the 'B' scheduled property from the end of April 2013. Whereupon, he could continue to occupy the B' scheduled property till 30.04.2013 and not thereafter.
33. On balance, (1) Point No.1 is decided to the effect that the suit filed by the plaintiff as against the defendant to desist him from continuing to possess the suit property is tenable without a prayer for recovery of possession.
(2) Point No.2 is decided to the effect that the rejection of the prayer of the Trust as against Pushpanathan for damages for use and occupation is not correct.
(3) Point No.3 is decided to the effect that the trial Court was justified in passing the judgment and decree as against Pushpanathan and others as they interfered with the smooth administration of the Trust.
In the result A.S.No.827 of 2009 is allowed and A.S.No.1058 of 2009 is dismissed. Each of the parties, shall bear their respective costs.
12.10.2012 Index : Yes/No Internet: Yes/No To II Additional Judge, City Civil Court, Chennai.
G.RAJASURIA, J.
gms A.S.Nos.827 and 1058 of 2009 12.10.2012