Madras High Court
Gowri Shankar vs Arulmigu Iluppaiyadi Dharmarasa on 6 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06.07.2018
Reserved on : 19.06.2018
Delivered on : 06.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A.(MD)No.767 of 2012
Gowri Shankar .. Appellant
Vs.
1.Arulmigu Iluppaiyadi Dharmarasa
Diravpathiamman Kovil,
Kumbakonam,
rep by its Hereditary Trustee Murugan,
S/o. Arjunan,
Hajiyar Street, Kumbakonam,
Thanjavur District.
2.Ganapathy Ammal
3.Shanmugam .. Respondents
Second Appeal under Section 100 of CPC against the judgment and decree dated
10.12.2011 passed in A.S.No.49 of 2011 on the file of the Principal
Subordinate Judge, Kumbakonam, reversing the judgment and decree dated
30.06.2011 passed in O.S.No.274 of 2007 on the file of the Principal District
Munsif, Kumbakonam.
!For Appellant : Mr.Lakshmi Shankar
for Mr.T.V.Sivakumar
^For Respondents : Mr.V.K.Vijayaraghavan for R-1
:JUDGMENT
A small piece of land admeasuring 240 square feet or thereabouts in Hajiar Street in Kumbakonam Town within Kumbakonam Registration District and Tanjore District (hereinafter referred to as 'demised land' for brevity) belonging to 'Arulmigu Ilupaiyadi Dharmaraja Drowpathi Amman Temple, Kumbakonam' (hereinafter referred to as 'said temple' for brevity) is the subject matter of this suit. To be noted, the superstructure standing on the demised land bears Door No.45.
2 One Ganapathy Ammal (hereinafter referred to as 'main lessee' for brevity) is a lessee under the said temple with regard to demised land and her spouse is Shanmugam. One Gowri Shankar (hereinafter referred to as 'appellant' for brevity) is a sub lessee under the main lessee with regard to demised land. The appellant who had become a sub lessee under the main lessee with regard to the demised land and superstructure thereon is said to have purchased the superstructure from the main lessee subsequently. The appellant is running an eatery therein from 1998.
3 On 5.7.2007, said temple filed a suit in O.S.No.274 of 2007 on the file of the 'Principal District Munsif Court, Kumbakonam' (hereinafter referred to as 'trial court' for brevity). In this suit filed by the said temple in the trial court, the main lessee and her spouse Shanmugam were arrayed as defendants 1 and 2 respectively. Appellant Gowri Shankar was arrayed as defendant No.3.
4 Aforesaid suit filed by the said temple in the trial court was predicated on the ground that the appellant has put up a new superstructure in the demised land. In other words, the appellant having allegedly put up a new superstructure in the demised land is the cause of action for the suit.
5 Prayer in the suit consists of two limbs and are of upmost importance. The first limb of the prayer is for a mandatory injunction to direct the defendants (appellant, main lessee and her spouse) to remove the new superstructure put up in the demised land at their cost and bring back / rescind the property to its erstwhile position. The second limb of the prayer is for a permanent injunction restraining defendants therein (appellant, main lessee and her spouse) from putting up any construction whatsoever in the demised land. Besides these two limbs, usual limb of prayers for costs and residuary limb are also there.
6 The main lessee and her spouse who were arrayed as defendants 1 and 2 in the suit respectively remained ex parte and did not contest the suit. The appellant who was arrayed as defendant No.3 entered appearance and contested the suit. In the trial court, five exhibits, i.e., Exs.A.1 to A.5 were marked on behalf of the said temple and 15 exhibits, i.e., Exs.B.1 to B.15 were marked on behalf of the appellant (defendant No.3 in the suit). Two exhibits being Commissioner's report and sketch were marked as Exs.C.1 and C.2. Besides this, Exs.X-1 to X-3 were also marked. On the side of the said temple, which is the plaintiff in the trial court, two witnesses were examined. One A.Murugan, hereditary trustee of the said temple was examined as P.W.1 and one V.Krishnamurthy, third party to the proceedings was examined as P.W.2 to speak about the original use which the demised land was put to. On behalf of defendants, the third defendant examined himself as D.W.1. S.Kannadasan and R.Chandira, third parties to the suit and persons in the locality were examined as D.W.2 and D.W.3 primarily to show that the appellant has not put up any new construction.
7 Aforesaid suit was disposed of by the trial court in and by judgment and decree dated 30.6.2011. By this judgment and decree, the suit was partly decreed and partly dismissed. In other words, one limb of the prayer was acceded to and the other limb of the prayer was dismissed. To be precise, the prayer for mandatory injunction was dismissed holding inter-alia that the plaintiff has not established that any new construction has been put up and the permanent injunction prayer was decreed as there was no dispute that the demised land belongs to the said temple. The appellant (third defendant in the suit) accepted the decree and did not carry it in appeal, but the said temple carried the matter in appeal saying that it is aggrieved by the dismissal of the prayer for mandatory injunction.
8 The appeal filed by the said temple is A.S.No.49 of 2011 on the file of 'Principal Sub Court, Kumbakonam' (hereinafter referred to as 'first appellate court' for the sake of brevity). The first appellate court disposed of the regular first appeal filed by the said temple under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for brevity) by judgment and decree dated 10.12.2011. The first appellate court allowed the appeal, reversed the trial court's decree with regard to mandatory injunction limb and granted the mandatory injunction prayer also. The first appellate court reversed the decree of the trial court with regard to mandatory injunction primarily on the ground that when the trial court found that there was cause of action for grant of permanent injunction, it should not have come to a different conclusion with regard to the mandatory injunction. In other words, the reasoning of the first appellate court for reversing the mandatory injunction limb of the decree of the trial court is that the cause of action for mandatory and permanent injunctions cannot be different and that the same have to be one and the same.
9 Aggrieved, the instant second appeal has been filed by the appellant on 26.3.2012. The instant second appeal was admitted by this court on 02.11.2012 on two substantial questions of law which read as follows:
"1.Is the lower Appellate Court is correct and justified in reversing the well considered judgment of the learned Trial Judge without adverting to the fact that a suit for mandatory injunction cannot be filed 10 years after the offending construction is made, is not the relief barred by limitation?
2.Is the lower Appellate Court is correct and justified in reversing the well considered judgment of the learned Trial Judge especially when the suit itself is not maintainable especially when the temple is under the administration of the H.R. & C.E Department?"
10 The instant second appeal is before this court for final disposal now.
11 In the final disposal hearing, Mr.Lakshmi Shankar, learned counsel for the appellant very fairly submitted that he is not pressing the substantial question of law No.2 supra. Instead, exercising his right under the proviso to Section 100 CPC, learned counsel requested this court to formulate a substantial question of law as to whether causes of action for mandatory and permanent injunctions have to necessarily be the same in a suit of this nature?
12 As mentioned supra, the first appellate court has reversed the mandatory injunction decree of the trial court primarily on the ground that the trial court having found that there was cause of action for permanent injunction ought not to have dismissed the mandatory injunction prayer by holding that there was no cause of action. Therefore, additional substantial question of law proposed by the appellant protagonist arises from the findings of the first appellate court and it has a direct impact on the litigant at lis in the instant second appeal. Therefore, the aforesaid proposed additional substantial question of law is formulated as substantial question of law No.2. To be noted, the substantial question of law No.2 on which this second appeal was admitted on 02.11.2012 has been given up by learned counsel for appellant.
13 Therefore, the instant second appeal was heard on the aforesaid two substantial questions of law, i.e., substantial question of law No.1 on which the second appeal was admitted on 02.11.2012 (extracted supra) and the additional substantial question of law that has been formulated in the final hearing.
14 With regard to the first substantial question of law, learned counsel for the appellant submitted that the suit in the trial court falls under Article 113 of the Limitation Act, 1963. This is not in dispute in the light of the prayers in the suit which has been set out supra. On this basis, it was submitted that the suit has not been filed within three years from the date of the alleged cause of action. This submission was made on a demurrer, as according to the appellant, there was no cause of action. In response to this, Mr.V.K.Vijayaraghavan, learned counsel appearing for the said temple submitted that this plea has not been raised by the appellant in the courts below and therefore, the appellant cannot raise this plea for the first time in a second appeal before this court. Learned counsel for the appellant pointed out that it is incorrect to say that such a plea has not been raised in the courts below. Learned counsel for the appellant referred to the written statement and particularly to paragraph 7 of the written statement filed by the appellant in the trial court. There is a specific pleading therein in paragraph 7 of the written statement, which reads as follows :
"7.It is not true that the 3rd defendant has raised pillars on four sides of the building and put up a roof. The building structure is unchanged for the past 10 years. The 3rd defendant has not made any change in the structure of the building. It is not true that on 01.07.2007 the 3rd defendant has told that he is making arrangements to construct a building in the suit property. It is not true that he has stored sand, bricks and other building materials near the suit property."
15 Relying on paragraph 7 of the written statement, appellant contended that there is a specific and categoric pleading that the superstructure has not been changed in the past 10 years. Appellant contended that this is adequate pleading to say that nothing has happened in the last 10 years.
16 In the light of the aforesaid categoric pleading of the appellant in the trial court, there is no difficulty in accepting the submission that the plea has in fact been raised in the courts below.
17 In any event, as far as plea of limitation is concerned, law itself provides for dismissal of a suit instituted after the prescribed period of limitation even if limitation has not been set up as defence. In other words, in a suit, even if the defendant has not set up limitation as defence and even if there is no pleading in the written statement of the defendant that the suit is barred by limitation or that the suit has been instituted after the prescribed period of limitation, the court will still look into the limitation aspect, more so when it is brought to the notice of the court. This is abundantly clear from sub-section (1) of section 3 of the Limitation Act, 1963. Section 3(1) reads as follows :
?3.Bar of limitation.--(1)Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.?
(underlining made by Court to highlight and supply emphasis)
18 Even with regard to 10 years prior to the written statement, it is the case of the appellant that they have only changed the roof from that of thatched roof to that of asbestos sheet and that does not tantamount to putting up a new superstructure in the demised land.
19 The rival contentions that the trial court addressed itself to in this regard is set out in paragraph 8 of the trial court's judgment and the same reads as follows :
"8.thjp jug;gpy;. tHf;F brhj;jpy; ve;j chpika[k; ,y;yhky; ,e;j tHf;F jhf;fy; bra;tjw;F 15 ehl;fSf;F Kd;g[ 3?k; gpujpthjp g[jpa fl;Lkhdk; bra;jhh; vd;W thJiuf;fg;gl;lJ/ Mdhy; 3?k; gpujpthjp jug;gpy; fle;;j 10 Mz;Lfshf fl;olj;jpy; ve;j khw;wKk; bra;ag;gltpy;iy vd;W thJiuf;fg;gl;lJ//////"
20 Thereafter, the trial court went on to hold in the same paragraph 8 as follows :
"8......,e;j tHf;F 5?7?2007 md;W jhf;fy; bra;ag;gl;Ls;sJ/ Mdhy; tHf;F brhj;ij Mizah; 26/6/2010 md;W ghh;itapl;Ls;shh;/ ,e;j tHf;F jhf;fy; bra;tjw;F 15 ehl;fSf;F Kd;g[ g[jpajhf fl;olk; fl;lg;gl;lJ vd;W thjp jug;gpy; Kd;Diuf;fg;gl;Ls;s epiyapy; Vwf;Fiwa 3 Mz;Lfs; fHpj;J Mizah; mwpf;ifapy; Fwpg;gpl;l r';fjpia guprPypj;J tHf;F brhj;jpy; g[jpajhf fl;Lkhdk; bra;ag;gl;Ls;sJ vd;W ,e;ePjpkd;wj;jhy; jPh;khdpf;f ,ayhJ/"
21 Ultimately, after careful analysis of the documentary evidence and deposition, the trial court came to the conclusion which reads as follows :
"12.....,e;epiyapy; me;j Tiu mikg;g[ rpbkd;l; Xlhf kha;ag;gl;Ls;sJ vd;gjhy; kl;Lnk fl;ol mikg;g[ epue;;ju fl;Lkhdkhf khw;wg;gl;lJ vd;w thjk; Vw;fjf;fjhf ,y;iy/ Mdhy; thjp jug;gpy; khz;gik brd;id cah;ePjpkd;w jPh;g;ghjhuk; ////"
22 Therefore, the plea of the appellant on a demurrer that they have not put up any new superstructure in the last 10 years prior to the date of filing of the suit has not been disbelieved. Even prior to 10 years, it is the specific case of the appellant that they have merely changed the roof from that of thatched roof as that of asbestos sheet roof. Appellant contended that this does not tantamount to changing the superstructure or putting up new superstructure or construction. Under such circumstances, there is no difficulty in answering the first substantial question of law in favour of the appellant and holding that the suit is in fact hit by Article 113 of the Limitation Act, 1963.
23 The reasoning given by the first appellate court with regard to two causes of action is set out in paragraph 13 of the judgment of the first appellate court and the said paragraph reads as follows :
"13.tHf;fpy; vGe;Js;s tpah$;$pa K:yk; epU:gpf;fg;gltpy;iy vd;W gpujpthjp jug;gpy; thJiuf;fg;gl;lJ/ ,t;tHf;fpy; thjp nfhhpa[s;s epue;ju cWj;Jf; fl;lisg; ghpfhuk; fpilf;fj;jf;fJ vd;W tprhuiz ePjpkd;wk; jPh;khdpj;Js;s epiyapy;. mt;thwhd jPh;g;g[f;F vjpuhf vt;tpj nky;KiwaPLk; bra;ag;glhj epiyapy;. tHf;fpy; tpah$;$pa K:yk; bjhlh;ghf gpujpthjp jug;gpy; jw;nghJ vGg;gg;gl;Ls;s thJiu Vw;Wf; bfhs;sj;jf;fjhf mikatpy;iy/"
24 Adverting to the above, learned counsel for the appellant submitted that cause of action is not defined and it is not a word of art. Cause of action is not defined in any statute. Cause of action has been described by Hon'ble Supreme Court in a line of authorities. It may not be necessary to refer to those authorities in the light of the well settled position in this regard. In very simple terms, all and every fact/s which the plaintiff has to prove in the chain of facts for being entitled to a decree are collectively referred to as cause of action. Viewed in this perspective, it was submitted that the cause of action for mandatory injunction is actually putting up a new superstructure in the demised land, whereas cause of action qua permanent injunction is merely an imminent possibility of putting up a new superstructure in the demised land.
25 Learned counsel for the said temple submitted in response that the said temple is entitled to protect its interest by ensuring that the appellant does not put up any further superstructure in the demised land. There is no difficulty in accepting this point of view. It is in this perspective that the trial court has granted permanent injunction while dismissing the prayer for mandatory injunction. Further more, it is in this perspective, the appellant has not filed an appeal against the grant of permanent injunction and appellant has given a complete legal quietus to the said permanent injunction. It was the said temple that carried the matter by way of regular first appeal under Section 96 CPC against negativing the prayer for mandatory injunction.
26 In sum and substance, from the rival submissions made before this court, it emerges clearly that two causes of action are clear and distinct. The distinction between the two causes of action is marked and it is not just a matter of subtleties. Viewed in this perspective, there was an error on the part of the first appellate court in coming to the conclusion that mandatory injunction prayer cannot be declined while acceding to the prayer for permanent injunction. Reversal of the same by the first appellate court by holding that the causes of action for the two prayers cannot be different is unacceptable. Therefore, there is no difficulty in answering the second substantial question of law also in favour of the appellant by holding that the cause of action for mandatory injunction and permanent injunction prayers can certainly be different and distinct.
27 Though substantial questions of law have been answered in favour of the appellant, as reference was made to certain case laws in the hearing, it has become necessary to refer to those case laws for the sake of capturing the hearing and encapsulating the same completely.
28 On the side of the appellant, reference was drawn to Kandasamy Vs. Savithri (died) reported in 2005 (3) MLJ 495, A.B.Hassan and others Vs. Sundari reported in 2002 (2) MLJ 305 and Kamalambal and another Vs. Arulmigu Renuka Devi Amman Temple reported in 2005-2-L.W. 220. All these three case laws have been referred to by the trial court in its judgment.
29 Kandasamy case [2005 (3) MLJ 495] is a case where the trial court while granting declaratory relief refused to grant mandatory injunction with regard to construction of sunshades. The second appeal came to be disposed of by this court by ordering compensation. This was pressed into service to show that the cause of action for mandatory injunction and any other relief in cases of this nature can be different. This case law has been referred to by the trial court in paragraph 10 of its judgment.
30 The next case law is 2002 (2) MLJ 305. This pertains to mandatory requirement qua injunction in cases of this nature and this has been relied on by the trial court in paragraph 9. In other words, this case law pertains to the principle that in a suit for injunction, it is bounden duty of the plaintiff to prove the interference caused by the defendant and that this is mandatory in requirement.
31 The third case law is 2005-2-L.W.220. This case law was pressed into service to say that this court has held that conversion of tiled roof into concrete roof was not prohibited under Section 108(p) of the Transfer of Property Act, 1882 (hereinafter referred to as 'TP Act' for brevity). This has also been dealt with by the trial court in paragraph 12 of its judgment. To be noted, the first appellate court distinguished this case on facts. First appellate court held that conversion of one permanent structure into another alone will fall under Section 108(p) of TP Act. This distinguishing of the said case law on facts by the first appellate court is unacceptable as what matters is changing of roof.
32 With regard to the same principle, Dayanand Gupta Vs. Gobind Lall Bangur and others reported in AIR 2007 Calcutta 247 was pressed into service by the appellant and paragraph 44 was relied on. There is no difficulty in accepting that changing of roof in an existing superstructure may not warrant a mandatory injunction.
33 The appellant pressed into service Subramanian and others Vs. Ponnusamy and others reported in 2006 (1) MLJ 710 for the principle that prohibitory or mandatory injunctions are purely equitable reliefs and when the plaintiff has not put forth its case truly and correctly, it is not entitled to such injunctions. In this case, as would be evident from the narration supra, appellant has accepted the permanent injunction restraining the appellant from putting up any new superstructure in the demised land and the appellant has given a legal quietus to that decree. Though it cannot be said that the said temple has come up with a false case, the said temple had not established the cause of action alleged, i.e., it has not been established that the appellant has put up new construction. To that extent, this principle enures to the benefit of the appellant.
34 Appellant also placed before the Court a Full Bench judgment of Calcutta High Court being Ratanlal Bansilal and others Vs. Kishorilal Goenka and others reported in AIR 1993 Calcutta 144. Relevant paragraph of the said judgment is paragraph 157 which reads as follows :
"157.Reliance was placed in this connection on Om Pal v. Anand Swarup reported in (1988) 4 SCC 545 for the proposition that it is not every construction or alteration that would result in material impairment to the value or the utility of the building. The impairment must be of material nature as to substantially diminish the value of the building either from commercial or monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord. Therefore, the hold bored is so insignificant that it cannot be said to have led to any waste or damage. "
35 This was relied on by the appellant to drive home the point that for the grant of mandatory injunction, the said temple should have been able to establish that the superstructure put up by the appellant has caused damage to the demised property. In the light of the fact that this is a case of lease, this is not of great help though the principle is indisputable.
36 Shankarrao Govindrao Naik Vs. Kisanlal Nagarmal and others reported in AIR (37) 1950 Madhya Bharat 19 (paragraph 4); Rupchand Gupta Vs. Raghuvanshi (Private) Ltd. and another reported in AIR 1964 SC 1889 (paragraph 12) and Balvant N.Viswamitra and others Vs. Yadav Sadashiv Mule (dead) through LRs and others reported in (2004) 8 SCC 706 (paragraph 28) were all pressed into service by learned counsel for the said temple to say that a decree against the main lessee will suffice. There is no difficulty in this principle. However, these case laws do not help the counsel for the said temple in the instant case as the aforesaid case laws dealt with the scenario where there is either an eviction order or decree for recovery of possession against the main respondents. In the instant case, as would be evident from the narration supra, the said temple has not even asked for a prayer of recovery of possession. On the contrary, there is a specific pleading in the plaint that said temple is taking steps to file a separate suit for recovery of possession. This Court will deal with this aspect of the matter with some elaboration in the later part of this order infra.
37 In continuation of his submissions that a decree against the main lessee will suffice, it was urged emphatically by learned counsel for the said temple that the appellant has no locus to file the appeal. It is his specific case that the appellant herein has no locus to file even a regular first appeal as he is admittedly only a sub lessee. In other words, it is his submission that when the main lessee has not chosen to contest the matter, the appellant cannot file even a regular first appeal. In support of this contention, learned counsel pressed into service a judgment being M.Munusamy Vs. Sri Vedantha Desikar Devasthanam and others reported in 1998 (1) MLJ 309 (paragraph 18). This again does not help the counsel for the said temple as this is not a case where the main lessee has suffered an order of eviction or decree for recovery of possession. In this case, the prayer itself is for mandatory and permanent injunctions qua superstructure alone. There is no prayer for recovery of possession. There shall be little elaboration on this aspect also in the later part of this judgment infra. Suffice to say that for the reasons set out here, this case law also does not help the said temple.
38 Faced with the above situation, learned counsel for the said temple pressed into service a decision being Chandrasekaran Vs. Thagattur Anna Chatram reported in 2017 (2) MLJ 728 to say that he can recover possession of demised land even in execution of mandatory injunction qua superstructure. A Hon'ble Single Judge of this court, in this judgment has held that the plaintiff in that case is entitled to obtain the relief of mandatory injunction as prayed for and on that basis, the plaintiff's suit cannot fail merely because it had not specifically sought for the relief of possession. This also does not help the said temple for three reasons. One reason is, it is not a case where the appellant has pleaded that the prayer for mandatory injunction should fail, because the said temple has not sought for recovery of possession. All that the appellant is pointing out is, even if this mandatory injunction decree is confirmed and even if it is executed, the said temple cannot get possession of demised land. The second reason as to why this case law does not help the said temple is, in the said case law, a perusal of factual matrix shows that defendant had encroached into a portion of the suit property and had put up some illegal construction pending suit. Third reason is, in this case the mandatory injunction is not for pulling down the entire superstructure wherein and whereby on execution of mandatory injunction decree, it would become vacant land. In this case, mandatory injunction is only to rescind the superstructure to its original condition. In this view of the matter, considering that there was amendment to the plaint, the judgment was rendered. There are no such facts in the instant case.
39 Elaborating on the land lease part, it is to be seen that the plaint does not refer to any lease in favour of main lessee along with superstructure. Though the prayer in the plaint is one for rescinding the superstructure to its original state, there is no pleading whatsoever as to what is the original state was. Further more, there is specific pleading in the plaint which runs as follows :
"nfhtpypd; bghUshjhu epiy cldoahf vjph;thjpfs; kPJ eltof;if vLf;f Koahj epiyapypUg;gjhy; thjp brhj;J RthjPdj;jpw;F tHf;F bjhlu Vw;ghLfs; bra;Jbfhz;oUf;Fk; epiyapy; 3?k; vjph;thjp vt;tpj chpika[kpy;yhky;. tHf;fpil brhj;jpd; ehd;F g[wKk; 4 J}z;fis vGg;gp mjd;kPJ ,g;nghJs;s fl;olj;jpd;kPJ Rkhh; 2* cauk; J}f;fp Tiu nghl;Ls;shh;/"
40 The aforesaid pleadings would clearly demonstrate that the said temple by its own volition has clearly admitted that it was intending to file a separate suit for recovery of possession. It is the categoric pleading of the said temple in the plaint itself that it is taking necessary steps for filing a separate suit for recovery of possession. Therefore, it follows as an indisputable sequitur that it is the stated position of the said temple that it cannot recover possession in the suit in trial court, out of which the instant Second Appeal arises. Further more, the hereditary trustee of the said temple, who was examined as P.W.1 in the trial court, in the cross examination has deposed as follows :
"tHf;F brhj;jpd; mokid thjp nfhtpYf;F brhe;jkhdJ nky;Tiu Kjy; gpujpthjpf;F brhe;jkhdJ vd;why; rhpjhd;/"
Therefore, there can be no doubt that it is a land lease.
41 Faced with the above situation, learned counsel for the said temple submitted that if the mandatory injunction decree is confirmed and if the same is executed, the said temple will automatically get possession as according to the learned counsel, the appellant cannot hold on to possession of land. In this regard, learned counsel pressed into service a judgment of Hon'ble Supreme Court in Vannattankandy Ibrayi Vs. Kunhabdulla Hajee reported in (2001) 1 SCC 564 and drew court's attention to paragraph 20. That portion of paragraph 20 which is relevant reads as follows :
"20. ...... Thus when the tenanted shop has been completely destroyed, the tenancy right stands extinguished as the demise must have a subject-matter and if the same is no longer in existence, there is an end of the tenancy and therefore Section 108(B)(e) of the Act has no application in case of premises governed by the State Rent Act when it is completely destroyed by natural calamities. "
42 This case is clearly distinguishable on facts on two aspects. One aspect is, it is a case where there was a decree for eviction / recovery of possession. Further more, the superstructure had been destroyed. It does not help the said temple to say that they will execute the mandatory injunction, pull down the superstructure completely and thereafter say that the appellant cannot hold on to possession of the land. In any event, as mentioned supra, mandatory injunction prayer is only to rescind the superstructure to its original condition and not to pull it down. As mentioned supra, the said temple by its own volition has admitted that it was taking steps for filing a separate suit for recovery of possession. Further more, the prayer in the plaint is only for rescinding the superstructure to its original state. In other words, it is not for pulling down the superstructure completely or raising the superstructure to ground. In any event, it cannot be contended that by execution of mandatory injunction qua superstructure, that too mandatory injunction for rescinding the superstructure to its original state (without saying what the original state was), it cannot be contended that possession of the demised land can be recovered. The recovery of possession has to necessarily be in accordance with due process of law.
43 Notwithstanding all that have been set out supra, this court does not want to loose sight of the obtaining admitted factual position that the demised land belongs to the said temple. In other words, demised land belongs to the said temple and vests in the idol which is the presiding deity therein. The law is well settled that the idol is a minor and the court is parentis locus qua minor idol and custodia legis qua the properties of the minor idol. In this view of the matter, this court takes note of Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22/1959) (hereinafter referred to as 'TNHR&CE Act' for brevity), which reads as follows :
"78.Encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers.--(1) Where the Assistant Commissioner having jurisdiction, either suo motu or upon a complaint made by the trustee, has reason to believe that any person has encroached upon (hereinafter in this section referred to as "encroacher") any land, building, tank, well, spring or water-course or any space wherever situated belonging to the religious institution or endowment (hereinafter referred to as "the property"), he shall report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated.
Explanation.-- For the purpose of this section, the expression "encroacher" shall mean any person who unauthorisedly occupies any tank, well, spring or water-course or any property and to include-
(a) any person who is in occupation of property without the approval of the competent authority (sanctioning lease or mortgage or licence); and
(b) any person who continues to remain in the property after the expiry of termination or cancellation of the lease, mortgage or licence granted to him.
(2) Where, on a perusal of the report received by him under sub-section (1), the Joint Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified on the notice should not made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned.
(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.
(4) Where after considering the objections if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such inquiry as may be prescribed, the Joint Commissioner is satisfied that there has been an encroachment, he may, by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order. (5) During the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit such amount as may be specified by him in consideration of the use and occupation of the properties in question in the manner prescribed."
44 From the narration supra, it may well be open to the said temple to initiate proceedings under Section 78 of TNHR&CE Act. This court does not express any opinion about the merits of possible proceedings under Section 78 of TNHR&CE Act. If the said temple is so advised and if it initiates such proceedings, suffice to say that it would be due process of law. If the said temple makes out a case before the appropriate authority and before the appropriate quasi judicial authorities under Section 78 of TNHR&CE Act, it may be entitled to recover possession under due process of law. Therefore, in the light of the undisputed position before this court that the demised land belongs to the said temple, if proceedings under Section 78 of TNHR&CE Act is initiated by the said temple, if so advised, the same shall proceed in accordance with law, on its own merits untrammeled by this judgment in the second appeal.
45 As both the substantial questions of law are answered in favour of the appellant, this second appeal will stand allowed, setting aside the judgment and decree of the first appellate court dated 10.12.2011 made in A.S.No.49 of 2011 and restoring the judgment and decree of the trial court dated 30.06.2011 made in O.S.No.274 of 2007, however, with a rider that this order will not come in the way of proceedings under Section 78 of TNHR&CE Act, if the said temple is so advised and if it chooses to initiate such proceedings. No costs.
To
1.The Principal Subordinate Court, Kumbakonam.
2.The Principal District Munsif Court, Kumbakonam.
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