Madras High Court
G.Vanaja vs K.Ramasamy on 17 October, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 08.10.2014 DATE OF DECISION : 17.10.2014 CORAM: THE HON'BLE MR JUSTICE K.KALYANASUNDARAM C.R.P.(NPD).Nos.3499 to 3501 of 2014 and M.P.Nos.1 of 2014 (in all) G.Vanaja ... Petitioner in C.R.P.No.3499 of 2014 M.Sukumaran ... Petitioner in C.R.P.No.3500 of 2014 M.Saraswathi ... Petitioner in C.R.P.No.3501 of 2014 vs. 1.K.Ramasamy 2.S.Veerappan 3.R.Sekar 4.R.Gnanasekaran 5.S.Karunanidhi 6.V.Balasubramanian 7.M.Palanivel ... Respondents in all CRPs Civil revision petitions preferred under Article 277 of the Constitution of India against the order dated 02.08.2014 passed by the District Judge, Karaikal District, in E.A.Nos. of 2013 in E.P.No.30 of 2010 in O.S.No.33 of 2006. For Petitioners : Mr.K.Hariharan For Respondents : Mr.A.Muthukumar COMMON ORDER
Challenging the order passed by the District Judge, Karaikkal, in unnumbered E.As. of 2013 in E.P.No.30 of 2010 in O.S.No.33 of 2006, the present revisions are filed.
2.The petitioners are defendants 2, 5 and 13 in O.S.No.33 of 2006. The respondents instituted the suit originally against one S.Varadharajalu for a direction directing him to handover Sri.Nadukkam Theertha Vinayagar Temple along with its precincts and the properties belonging to the temple; to surrender possession of all accounts, documents etc., pertaining to the administration of the temple and for cost.
3.The suit was filed on 9.10.2006. Defendants 2 to 13 were inducted as tenants/purchasers of the house sites belonging to the temple pending suit and hence they were subsequently impleaded as parties to the suit. The case of the plaintiffs is that the properties described in the schedule of the plaint belonged to Nadukkam Theertha Vinayakar Temple. During the year 1952, the administration of the temple and its properties were entrusted to the father of the first defendant and on his death, the first defendant was managing the temple as well as its properties. It is further alleged that there was mismanagement by the first defendant in looking after the temple and he also indulged in disposing of the properties of the temple illegally. Hence the suit.
4. The learned Additional District Judge, Pondicherry, after considering the evidence, had decreed the suit. Aggrieved by the judgment and decree, the defendants filed appeals before this Court in A.S.Nos.86 and 841 of 2010, 374 of 2011 and 7 of 2012. This Court, by a common judgment, dated 02.03.2012, dismissed the appeals.
5. Thereafter the decree holders filed the Execution Petition in E.P.No.30 of 2010. In the Execution Petition, the judgment debtors, namely, D2, D5 and D13 have filed applications under Section 47 of C.P.C. contending that they are tenants and admittedly they are the owners of the superstructures, so they are entitled to protection under the Tenants Protection Act. It is further contended that there is no decree for mandatory injunction and hence the decree cannot be executed against them. The decree holders filed the counter resisting the applications. The learned District Judge, Karaikal, by a common order dismissed the applications holding that the applications are not maintainable. Aggrieved by the said order, the judgment debtors/D2, D5 and D13 have filed the present revisions.
6. Heard Mr.Hariharan, learned counsel for petitioners and Mr.A.Muthukumar, learned counsel for respondents and perused the records.
7. Learned counsel for petitioners submitted that the plaintiffs had laid the suit on 9.10.2006, however, the suit was numbered only in November 2006. But in the meanwhile, even before the first defendant had knowledge about the filing of the suit, the petitioners were inducted as tenants of respective portions of the suit property on 12.10.2006, 19.10.2006 and 21.07.2007, by the first defendant, who was functioning as a Trustee of the temple at that time. Subsequently, the petitioners have constructed superstructure and they have been paying house tax to the local authority. They also obtained electricity service connection and 'adhar cards' were also issued in favour of them. It is further submitted that even though the petitioners could be termed as pendente lite tenants/purchasers, they cannot be evicted except under due process of law.
8. The learned counsel further submitted that defendants 2 to 13 believed that the first defendant was hereditary Trustee of the temple and only on his induction, they became tenants and constructed the superstructures; that the decree does not specify the portions, which are under the occupation of the tenants and therefore, the decree cannot be executed as against them. Learned counsel would further submit that the decree can be executed only as against defendants 1 and 14 and after taking over the management of the temple, the decree holders can proceed against the tenants of the suit property. It is the contention of the petitioners that so far the decree holders have not taken over the management from the 14th defendant and therefore, the Execution Petition filed against defendants 2 to 13 is not maintainable in law. Learned counsel also submitted that as per Section 51 of the Transfer of Property Act, the transferee is entitled for improvements made in the suit property, but however, the learned District Judge, Karaikkal, without proper adjudication of the claim of the petitioners, dismissed the petitions in limini contrary to the pronouncements of the Honourable Apex Court and that the petitioners cannot be thrown out without proper adjudication of their claims.
9. The learned counsel has relied upon the judgments of this Court and various other High Courts reported in (i) AIR 1961 Mad 293 - Alagadrswami Kone vs. T.J.Andhoni (ii) AIR 1977 Mad 342 - S.Palanivelu vs. K.Veradammal (iii) AIR 1954 Travancore Cochin 471 - Eipu Varkey and Others vs. State and Others and (iv) AIR 1996 Andhra Pradesh 238- R.B.Bharatha Charyulu vs. R.B.Alivelu Manga Thayaru, in support of his contention.
10. Per contra, learned counsel for the respondents submitted that defendants 2 to 13, who had claimed to be the tenants of the temple property had not chosen to enter into the witness box to establish their right. The learned trial Judge, Puducherry, has framed specific issues and in issue No.4, the learned District Judge has held that the first defendant was not the Trustee of the temple and he was only managing the temple and the properties and if at all there is any agreement between the first defendant and defendants 2 to 13, the same will not bind the plaintiffs.
11. Learned counsel further submitted that this Court in the first appeals has categorically held that defendants 2 to 13 are not tenants of the suit property. According to the learned counsel, the petitioners are estopped from agitating the same issue in an application under Section 47 C.P.C.
12. Learned counsel for the respondents further submitted that the suit was filed for recovery of possession and even without the decree for mandatory injunction, the decree holders are entitled to take possession of the suit property. For this proposition, learned counsel has relied upon the judgments reported in (i) 1979(1) MLJ 380 - Duraisami Mudaliar vs. Ramasami Chettiar and another, (ii) 1996-1-L.W.145 - B.Gangadhar vs. B.G.Rajalingam and (iii) 2007(1) CTC 217-Madaswamy vs. Govindfaraj.
13. The learned counsel for the respondents submitted that pending suit, the first defendant died and his son was impleaded as 14th defendant in the suit. The 14th defendant filed an appeal against the judgment and decree made in O.S.No.33 of 2006, but he could not obtain any stay of further proceedings in the suit. Thereafter, he filed a Special Leave Petition, which was also dismissed by the Honourable Apex Court and after dismissal of the Special Leave Petition, the decree holders have taken over the management of the temple from the 14th defendant.
14.It is further submitted by the learned counsel for the respondents that apart from defendants 2 to 13, one Sekar was in possession of the property and even though he was not a party to the suit proceedings, the decree holders have laid an Execution Petition and they have taken possession from him. The order was challenged by the said Sekar in C.M.A.No.1406 of 2013, but this Court has dismissed the appeal on 18.07.2013.
15. Learned counsel for the respondents further contended that tenants 2 to 13 have been in possession of item No.11 of the suit scheduled properties, situated in R.S.No.103/42, to an extent of about 1 acre. As per the Revenue records, the property is a temple tank and the defendants have blocked the inlet water channel and constructed huts in the temple tank. It is further submitted that the petitioners have not pleaded in the Section 47 applications that the decree cannot be executed as it does not specify the portions under their occupation; that for the first time the petitioners have raised this point in the revision before this Court and that Section 51 of the Transfer of Property Act is not applicable to the facts of this case. He would submit that if the suit is filed after the defendants put up construction, they may be entitled for compensation under Section 51 of the Transfer of Property Act. But after institution of the suit, pendente lite tenants put up any construction in the suit property, so they are not entitled for any compensation. Learned counsel has relied upon the judgment of this Court reported in AIR 1979(1) MLJ 380-Duraisami Mudaliar vs. Ramasami Chettiar and another.
16. Learned counsel for the respondents further submitted that the Tenants Protection Act is not enacted by the Government of Pondicherry and hence, the claim of the petitioners that they are entitled to protection under the Tenants Protection Act is misconceived.
17. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the petitioners submitted that even as per Order 21 Rule 35 CPC, the Executing Court has to decide the issue after enquiry and even if Section 51 of the Transfer of Property Act is not applicable, under Common Law remedy, the petitioners are entitled to compensation of the superstructure.
18. Indisputably the petitioners were arrayed as defendants 2, 5 and 13 in O.S.No.33 of 2006. The petitioners mainly contended that they are statutory tenants of the suit property and therefore, they are entitled for protection under the Tenants Protection Act. But admittedly there is no Act in the Union Territory of Pondicherry to protect the interest of the tenants like the Act called Tamil Nadu City Tenants Protection Act.
19. Further, this Court in A.S.No.86 of 2010 has held as follows:
50. No doubt, in the plaint in paragraph No.8, one Sekar and Pappathi @ Manimekalai, were referred to as the tenants in the suit property, but they are not the defendants here. If at all they are having any right, they have to work out their remedy independently and the present defendants 22 to 13 cannot, in any manner, claim any separate status as that of tenants, because it is undoubtedly and indubitably established that they were only inducted by D1 pendente lite holus-bolus to create complications and discomfitures. As such, considering the pro et contra, I am of the considered view that absolutely there is no merit in their appeals"
(emphasis supplied) In view of the categorical finding by this Court referred above, the contention of the petitioners that they are statutory tenants and entitled for protection under Tenancy law cannot be countenanced.
20. The next contention of the petitioners is that in the absence of the decree for mandatory injunction, the tenants cannot be dispossessed from the suit property. In (i) 1979(1) MLJ 380 - Duraisami Mudaliar vs. Ramasami Chettiar and another, (ii) 1996-1-L.W.145 - B.Gangadhar vs. B.G.Rajalingam this Court has categorically held that once the plaintiff is entitled for decree for possession, there need not be any specific decree for mandatory injunction. Relevant portions of the judgments are usefully extracted hereunder:
(i) Paragraph No.4 of the judgment reported in 1979(1) MLJ 380 - Duraisami Mudaliar vs. Ramasami Chettiar and another, would run thus:
"4.There will not be any difficulty with reference to a case where the superstructures came to be put up by the defendant either during the pendency of the suit or after the decree. In such a case, in execution of the decree for possession, the executing Court can order the removal or demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in Narain Singh vs. Imam Din (AIR 1934 Lab 978) and that has been followed by D.S.Mathur, J., in Mohd. Ismail vs. Ashiq Hussain (AIR 1970 All.648), suggesting appropriate directions according to the needs of particular cases.
(ii) Certain extracts from the judgment in 1996-1-L.W.145 - B.Gangadhar vs. B.G.Rajalingam, would run thus:
"Order 21, rule 35(3) envisages that:
"Where possession of any building or enclosure is to be delivered and the person in possession being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession."
Rule 35(3) of Order 21 itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the Court executing the decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or superstructure made pendente lite. The exercise of incidental, ancillary or inherent power his consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But, when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the Court. Otherwise, the decree becomes inexecutable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings.
9. It is also not necessary that the tenant should be made party to the suit when the construction was made pending suit and the tenants were inducted into possession without leave of the court. It is settled law that a tenant who claims title, right or interest in the property through the judgment debtor or under the colour of interest through him, he is bound by the decree and that, therefore, the tenant need not eo nomine be impleaded as a party defendant to the suit nor it be an impediment to remove obstruction put up by them to deliver possession to the decree-holder. What is relevant is only a warning by the bailiff to deliver peaceful possession and if they cause obstruction, the bailiff is entitled to remove the obstruction, cause the construction demolished and deliver vacant possession to the decree holder in terms of the decree. Thus considered, we hold that the High Court and the executing court has not committed any error of law in directing demolition of shops and delivery of the possession to the decree holder.
(emphasis supplied)
21. In a suit instituted for declaration of title and recovery of possession, the legal heirs of the judgment debtor filed an application under Section 47 of C.P.C. contending that there is no decree for removal of superstructure. This Court in 2007(1) CTC 217-Madaswamy vs. Govindaraj found that the construction was made pendente lite and relying on the principles laid down in the judgment of the Hon'ble Apex Court in B.Gangadhar vs. B.G.Rajalingam-1996(1) CTC 271, directed the Executing Court to deliver vacant possession of the suit property. Paragraph No.17 of the judgment is extracted hereunder:
"17.When the construction was made pendente lite, the Executing Court ought to have ordered removal of obstruction of the superstructure made pendente lite. It cannot be disputed that the respondent was trying to prevent execution of the Decree in one way or other. In that view of the matter, the impugned order is to be set aside, directing the Executing Court to deliver possession of the suit lane after removal of the obstruction or demolition, as the case may be. As per the decision of the Supreme Court, in the case cited supra, what is relevant is only a warning by the Bailiff, to deliver peaceful possession and if the respondent causes obstruction, the Bailiff is entitled to remove the obstruction, cause the construction demolished and deliver vacant possession to the Decree-Holder in terms of the Decree."
22. Further, despite the fact that the petitioners were impleaded as defendants in the suit, they have not raised their objection to identify the suit property nor it is the case of the petitioners that they are in possession of any other property, besides the suit property. Admittedly, the petitioners have not agitated the factual issues in the suit proceedings and hence they are estopped from raising the said issue in the Executing Proceedings.
23. In the case on hand, it is even admitted by the petitioners that they were inducted after institution of the suit and the superstructure were put up pending suit. Keeping in mind the principles laid down by this Court referred to supra, the contentions of the petitioners that there is no proper description of property in the decree and the decree is inexecutable, as there is no decree for mandatory injunction, cannot be accepted.
24.Indisputably the petitioners have put up superstructures pendente lite. Therefore, I am of the considered opinion that the judgments relied on my the petitioners for seeking compensation of the improvements are not applicable to the facts of this case and the principles laid down in 2007(1) CTC 217-Madaswamy vs. Govindaraj, referred to supra, would be squarely applicable to the present case.
25. In view of the discussion supra, I do not find any merit in the revision. The civil revision petition stands dismissed. However, there is no order as to cost. Connected miscellaneous petitions are dismissed.
17.10.2014 msk index:Yes/No Internet:Yes/No To The District Judge, Karaikal District K.KALYANASUNDARAM,J.
Pre-delivery order in C.R.P.PD.Nos.3499 to 3501 of 2014 17.10.2014