Madras High Court
D. Balasubramanian vs R. Ramaswamy Naidu And Others on 16 March, 1994
Equivalent citations: AIR1994MAD363, AIR 1994 MADRAS 363, (1994) 2 MAD LJ 402
JUDGMENT
1. Since both the second appeal and the civil revision petition are connected,they are taken up together.
2.The 1st defendant in O.S.No.582 of 1986 on the file of the First Additional Sub-Court,Madurai,is the appellant in the second appeal and petitioner in the civil revision petition.The said suit was filed by 17 plaintiffs.Plaintiffs 1 to 5,8 to 11 and 13 to 16 and defendants 2 and 3 are respondents in the second appeal and civil revision petition.
3.The suit is for possession of the suit property,which is part of Door No.42 and measures 400 sq.ft.while the entire Door No.42 measures about 700 ft.The appellant also filed C.T.O.P.No.31 of 1987 under S.9 of the city Tenants Protection for purchase of the suit property on the footing that he is tenant of the suit site, over which he has put up his own superstructure.
4. The suit has been decreed concurrently both by the trial Court and the appellate Court in A.S.No.138 of 1981 on the file of the District Court,Madurai.Likewise,the abovesaid C.T.O.P.No.31 of 1987 and the subsequent C.M.A.No.2 of 1991 were concurrently dismissed,holding that the appellant is not entitled to the benefits under S.9 of the City Tenants Protection Act on the ground that the site is a temple property and the principle of "res extra commercium" would apply to the suit,it being part of temple property.The Court below in this connection relied on Sundareswarar Devasthanam v. Marimuthu, .
5.Now before me, learned counsel for the appellant/petitioner makes the following submissions:--
(1)The Court below erred in holding that the suit site is "res extra commercium"and the decision in (supra) is applicable.(2)If the suit property is private family temple property as held by the Courts below,the principle of "res extra commercium"would not apply to such a property. There is no temple at all in the above referred to 400 sq.ft site,which alone is the suit property,even assuming that there is some family deity in the portion north of it and that the said portion also comes under the above referred to Door No.42.The above referred to 400 sq.ft.site is different from the said northern portion, where the abovesaid deity may exist.(3) The suit site is neither a trust property,nor a private family temple property,as found by the Court below.The suit itself is laid by the above said 17 plaintiffs only in their individual capacities. There is no suit as such filed by the trustees of any temple for recovery of temple property for the benefit of the alleged temple or trust.The plaintiffs alone,in their individual capacities went to recover possession of the property.But,having found that the suit property is the property of a private family temple,the Court below erred in granting the decree for possession on favour of 17 plaintiffs their individual capacities.
6. On the other hand,learned counsel for the plaintiffs/respondents,apart from reiterating the reasoning of the Court below in decreeing the suit,submits that the appellant is not entitled to the benefits of the Tamil Nadu City Tenants Protection Act,either under S.9 or under section thereof since he had denied the title of the landlords-plaintiffs,setting up title in the 2nd defendant,alleging that the suit property was exclusively belonging to the 3rd defendant, who was sold to the 2nd defendant under Ex.A.8(1985).According to learned counsel,he had so denied the title in Ex.A.18 dated 6-4-1987.In support of this contention,he relied on Bhargavakula Nainargal Sangam v.Arunchala Udayar (1990) 105 Mad LW 46, Bhargavakula Nainargal Sangam v. Chak-kvarthi (1992) 2 Mad LJ 83 and Rajammal(died)v. Idol of Sri Thanthonneeswaraswami (1993) I Mad LJ 387.The said learned counsel also maintained that even for a family temple property,the principle of "res extra commercium" would apply.Then,regarding the abovesaid third submission of the learned counsel for the appellant,the said learned counsel maintains that the suit is maintainable since though the cause title of the suit may show that the plaintiffs have sued not in their capacity of the trustees of the abovesaid temple, the body of the plaint would clearly show that the suit is laid by the plaintiffs only as trustees of the abovesaid temple and that even though some of the trustees figure only as defendants,the suit by the other trustees is maintainable.
7. Of the above three main submissions,learned counsel for the appellant/petitioner,I do not thin that it is necessary to deal with the first two submissions since it is clear to me that the counter submission of learned counsel for the respondents/plaintiffs,viz.,that because of denial of title,the appellant cannot have the benefits under the Tamil Nadu City Tenants Protection Act, has to be upheld as correct.So I shall first deal with that question relating to denial of title.The said denial of title is found in Ex.A.18 dt.6-4-1986,the reply to the suit notice, Ex.A.14 sent by defendants 1 and 2.The relevant portions in Ex.A.18,whereby the title of the plaintiffs to the suit property in Door No.42,is denied are as follows:--
"The allegation that your clients are also entitled to any portion of Door No.42,is false and hereby denied.....Thus my client No.2 is the owner of the site in Door No.42.....Your clients have absolutely no right,title or interest in the sit in Door No.42.....Your clients have no right to terminate the tenancy because they are not the owners of the property."
8. Now,the law on the point is well settled.In(1993) I Mad LJ387(supra),I have myself held following (1990)105 Mad LW 46 (DB)(supra)and(1992)2Mad LJ 83(supra) that such a denial of title would disentitle a tenant to get the benefits of the Tamil Nadu City Tenants Protection Act.In (1992)2 Mad LJ83(supra),the principle was applied even to a case where the denial of title was prior to the institution of the suit,in the reply notice issued by the tenant,as in the present case.I may also point out that all these decisions follow:M.Subbaro v.P.V.K.Krishna Rao, .The net result is that the second appeal has to be dismissed solely on this ground,viz.,denial of title by the appellant/petitioner.
9.No doubt, learned counsel for the appellant also argued towards the end that even if the appellant is not entitled to purchase the suit land under S.9 of the City Tenants Protection Act,he is entitled to claim compensation for his superstructure on the suit land under S.3 of the said Act.But, in view of the abovesaid denial of title,he is not entitled to any right to claim such compensation under S.3 of the Act.In the above referred to (1993) I MAD lJ 387 itself I have dalth with this question.After referring to the above referred to Division Bench judgment in (1990) 105 Mad LW 46, I have stated in paragraph 12 of my judgment as follows:--
"Further the question that was referred to the abovesaid Division Bench, which decided the aobvesaid case is only in general terms,viz.,"Whether a tenant in respect of a vacant site,who denies title of the landlord, is entitled to the benefits of the Madras City Tenants Protection Act." To the said question,the answer of the Division Bench was in the negative and the Division Bench finally concluded as follows:--
"Consequently,we hold that the benefits under the act can be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be the owners of the properties or set up title in others."
Further, I also pointed out the following observation of the abovesaid Division Bench:--
"We have come to the conclusion from the preamble and definition of tenants found in the Act that the benefit i s intended to be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be owners or set up title on others.
In the above (1993) I Mad LJ 387 I have also observed as follows:--
"But the learned counsel for the appellants states that the appellants should be given at least compensation for the superstructure.But even the benefits under the said S.3,they cannot claim, in view of my abovesaid decision.Under the Transfer of Property Act,the tenant cannot claim as of right,that when the landlord takes possession of the land,he should pay compensation for the superstructure put up by the tenant;the tenant can only remove the superstructure. No doubt,under the general law, the landlord alone has got option either to pay compensation for the superstructure and take the superstructure along with the land,or to take the land alone. In the latter case,the tenant has only to remove the superstructures if he so desires. Therefore,there is nothing wrong in the decree that has been given by the lower appellate Court.However, opportunity should be given to the appellants to remove the superstructure by themselves.
Therefore, while confirming the decree for possession granted by the Courts below,in this case also I should grant tie for the appellant to remove the superstructure put up by him in the suit land.
10. Regarding the third submission of the learned Counsel for the appellant/petitioner, which deals with the maintainability of the suit,as mentioned above,I have to state that this submission has no merit.No doubt,the cause title of the suit shown as if the suit is laid by 17 plaintiffs in their individual capacities and not in the capacity of trustees of the abovesaid private family temple.But,reading of the body of the plaint would make it clear that the suit is laid by the plaintiffs only in their capacity as persons managing the above-said private family temple. In paragraph 7 of the plaint it is specifically mentioned thus:
"The scheduled property is a private temple called "Ellamman Temple", Door No.42, Dindigul Road,Madurai Town.....It is a private temple managed by the plaintiffs and defendants 3 to 9's predecessors-in-interest."
Later on also in paragraph 12 of the plaint it is stated thus:--
"It is observed in the judgment (O.S.132/1928) that Door No.42(suit temple) was kept in the family i.e.upholding the suit property as family property and also it was decree that the management of the temple will be by rotation,by each family for the year....."
Here,it may also be incidentally noted that even though it is mentioned that suit property is upheld as family property is upheld as family property in the abovesaid Judgment, what is meant is only that the suit property is upheld as family temple property. The said judgment is also only to that effect.
11. The cause of action in paragraph of the plaint also runs as follows:--
"The cause of action for the suit arose on 13-5-1993 when the suit property endowed as a family temple in the partition deed and in the year 1928 the character of the property was decided as temple property in O.S. 132 of 1928 on the file of the Subordinate Judge, Madurai....the plaintiffs and defendants 3 to 9 were in continuous possession of the suit property as their family temple"....."
I may also point out that in paragraph 6 of the written statement of the appellant,the defence plea itself is a follows:--
"The repeated allegation that a temple itself has been built and the plaintiffs and the defendants 3 to 9 are its trustees are all false and are hereby denied."
This also shows that the appellant also proceeded to trial only on the footing that the plaintiffs claimed the suit property only in the capacity of the trustees of the abovesaid temple.Therefore,it is clear that the suit is laid by the plaintiffs only in the capacity of trustees, who are in management of the abovesaid temple.
12. No doubt,it is also sought to be argued by the learned counsel for the appellant as well as the learned counsel for the 3rd defendant/15th respondent that even assuming that the plaintiffs are trustees of the abovesaid temple,they cannot themselves file the suit when admittedly there are other trustees,who have not jointed n filing the suit. But,this contention also has no merit.It is settled law that even a de facto trustee of a temple and its properties could maintain and action for recovery of possession of the temple property.No doubt,in this connection Section 48 of the Trusts Act was relied on.But,the Trust Act itself has no application to a religious endowment,as the present one.
13.The net result is the second appeal and civil revision petition are dismissed.No costs. Two months' time is granted for removal of the superstcutre put up by the appellant over the suit property.If within that time,the appellant does not remove the superstructure, the plaintiffs could execute the decree and take possession of the suit land along with the superstructure thereon.
14. Order accordingly.