Madras High Court
M.Mariappan vs Jayaraman (Died) on 30 April, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT CAV ON 17/03/2015 DATED: 30/04/2015 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN S.A.(MD)No.465 of 2010 & M.P.(MD)No.1 of 2010 M.Mariappan ... Appellant Vs. Jayaraman (died) 1.S.Amjad Ali 2.E.Vijaya 3.Pasupathi 4.V.Vasuki 5.Ilavarasu 6.V.Kaviyarasi ... Respondents PRAYER: The above Second Appeal is filed under Section 100 C.P.C. against the judgment and decree in A.S.No.100 of 2005, on the file of Principal Sub Court, Dindigul, dated 29.03.2010, confirming the judgment and decree in O.S.No.822 of 2004, on the file of the Principal District Munsif Court, Dindigul, dated 17.01.2005. !For Appellant : Mr.V.Raghavachari ^For Respondents : Mr.T.Vadivelan :JUDGMENT
The brief facts of the case are as follows:-
The plaintiffs submit that the suit property and its adjacent properties with some old buildings measuring 81384 sq.ft. situated in S.No.1113/2, Ward No.6, Dindigul Town originally belonged to the Church of South India Trust Association. The said property was leased out to one Vijayalakshmi, W/o.Late Pon Srinivasan by the said CSI Trust Association. Later, she had sub-leased the said old buildings and also a portion of the vacant site to various persons. Accordingly, the suit property as vacant site was leased out by her to the defendant who had put up the superstructures on it. The defendant is doing business in the name and style of Rajalakshmi Stores in the suit property. Subsequently, the CSI Trust Association took necessary steps to recover the properties leased out to the said Vijayalakshmi and later, the matter was amicably settled between them. Accordingly, the said CSI Trust Association agreed to sell an extent of 18000 sq.ft from out of 81384 sq.ft. (bounded on the north and west - the property belongs to the CSI Trust Association, on the east - Thiruvalluvar Salai, on the south - Vinayakar temple and spencers compound) to the said Vijayalakshmi and she in turn, agreed to surrender the other portions of the said property which was leased out to her. As per that settlement, the said CSI Trust Association entered into a registered sale agreement with her on 03.07.1992 in respect of the said 18000 sq.ft. The said Vijayalakshmi surrendered the other portions of the properties which were originally leased out to her by the CSI Trust Association in July 1992 and the defendant as well as the other tenants had attorned their respective tenancy agreements with the CSI Trust Associations. In pursuance of that, the defendant entered into a lease agreement with the said Association on 16.10.1992 and as per that agreement, the defendant agreed to pay the rent at the rate of Rs.200/- per month on or before 5th of every succeeding English calendar month and in default of payment of two months rent, the said lessor was entitled to demand and vacate the defendant without notice etc. The defendant had also agreed not to sub let the suit property or transfer the business in it in part or fully to anyone and also agreed that no document will be created to occupy the suit property. The defendant lastly was paying the rent at the rate of Rs.250/- per month.
2. The plaintiffs further submit that the they had purchased the said property of 18000 sq.ft. from CSI Trust Association with the consent of the said Vijayalakshmi as per the registered sale deed dated 24.02.1995. The plaintiffs as well as the said CSI Trust Association had informed the same to all the tenants. Though the plaintiffs had informed the defendant about their ownership of the suit property, he had not paid the rent amounts to them and they were constrained to send a registered notice to him through their Advocate on 11.09.1995 stating about their ownership. Even though the defendant had received the said notice on 14.09.1995, he had not complied with demand made in it and also not cared to send any reply for the same. The plaintiffs further submit that the defendant had not paid the rent from the month of March 1995 onwards and committed willful default in payment of rent. Moreover, the suit property as well as the adjacent properties, purchased by the plaintiffs are immediately required by them for their own use and occupation in order to construct a new building on it. The plaintiffs have also validly terminated the tenancy of the defendant under a registered notice dated 15.11.1995 with the end of the tenancy month of December 1995. The defendant had received the said notice on 22.11.1995 and sent a reply notice dated 28.12.1995 with false and frivolous allegations. For the subsequent periods after the termination of the tenancy, the defendant is liable to pay the damages for use and occupation from the date of the plaint till the date of recovery of possession of the suit property by the plaintiffs.
3. The plaintiffs further submit that the defendant contended that the suit property is the Government poromboke land and was assigned to the CSI Church conditionally and so the sale deed in favour of the plaintiffs was not a valid one and the plaintiffs would have to prove their title through the Court of law etc. After having admitted the title of the CSI Trust Association in respect of the suit property and after having entered into the lease agreement with it, the defendant is estopped from denying the title of their and said CSI Trust Association or its transferee, the plaintiffs. By such denial of title, the defendant had forfeited the tenancy. The plaintiffs have therefore come forward with the suit for recovery of possession of the suit property and for rent arrears, future mesne profits and for costs. The plaintiffs value for the suit claim for the purpose of Court fees and jurisdiction at Rs.4,500/- and paid Court fees of Rs.339/- under Sections 43, 22 and 44 of T.N.Court Fees Act. The plaintiffs further submit that the cause of action for this suit arose on 16.10.1992, when the suit property was leased out to the defendant by the CSI Trust Association, on 24.02.1995, when the said Association had sold the suit property and other properties to the plaintiffs, on 11.09.1995, when the plaintiffs had sent a registered notice through their advocate to the defendant on 15.11.1995, when the plaintiffs had sent the termination notice to the defendants, on 22.11.1995, when the defendant received the same, on 31.12.1995 when the tenancy of the defendant was terminated at Dindigul Town, where the suit property is situated within jurisdiction of this Court. The plaintiffs have therefore prayed for the following requirements:-
a) To direct the defendant to remove the superstructure put up by them in the suit property and to vacate and hand over the vacant possession of the suit property to the plaintiffs;
b) To direct the defendant to pay the arrears of rent of Rs.2,500/-
accrued from March 1995 to December 1995 to the plaintiffs
c) To direct the defendant to pay the future mesne profits, from the date of plaint till the date of delivery of possession, on the quantum which may be determined under Order 20 Rule 12 of CPC.
d) To direct the defendant to pay the costs of the suit to the plaintiffs and
(e) To grant such other and further reliefs which are deemed to be fit and proper for the purpose of this case.
4. The defendant / appellant herein has filed a written statement and resisted the suit. The defendant stated that the suit schedule mentioned property comprised in Survey No.1113, to an extent of 16.17 acres belongs to the Government, wherein school, teachers quarters, students hostel and playgrounds are situated therein. The said property had been assigned by the Government to the Madurai American Mission in the year 1933 on condition that the suit schedule mentioned property should not be utilized for profit.
5. The defendant further stated that the plaintiffs had violated the specific condition of the Government and as such, the assignment should be cancelled. The plaintiffs submitted an application before the Municipality for measurement and Sub Division, stating that the plaintiffs have purchased the said property. The Municipal Land Surveyor had measured the said property on the basis of the Municipal records and came to a conclusion that the suit schedule mentioned property belongs to the Government and had also came to know that the said property had been assigned to the American Madurai Mission. The name of the said American Mission was subsequently changed as "Church of South India Trust Association". The Church of South India Trust Association had let out the land situated south of American Mission Church Road, South West Main Road of Spencers Compound and vacant site of western side and buildings thereon to one Vijayalakshmi, who was the tenant of the land.
6. The defendant further stated that the said Vijayalakshmi, in turn, divided the said property and sub let it to various persons. The sub tenants had constructed buildings over the said land and paying mandatory tax and also remitted land rent to the said Vijayalakshmi. The said Vijayalakshmi had not remitted tax to the Church of South India Trust Association. Hence, the said Church of South India Trust Association had entered into separate lease agreements with the occupants and are collecting the rent from the tenants on a regular basis. The defendant had also entered into an agreement with Church of South India Trust Association and paid an advance and also remitting monthly rents regularly.
7. The defendant additionally added that he had filed an injunction suit on the file of the District Munsif Court, Dindigul, to restrain the plaintiffs from interfering with the said property and the occupation and enjoyment of the same by the defendant. The plaintiffs had not disclosed that they have purchased the suit schedule mentioned property from the Church of South India and occupants of the property. The defendant had obtained permission from the Church of South India Trust Association and constructed a building over the said land and also obtained electricity service connection, and as such, the sale deed produced by the plaintiffs is not a valid one. The defendant further stated that he had given a reply against the plaintiffs legal notice. The plaintiffs had purchased the defendants property, which is not sustainable under law. Under these circumstances, the contentions of the plaintiffs claim that they are the owners of the said land and claiming monthly rent is not true. The defendants have been remitting property tax, charges for electricity consumption and professional tax. The defendant further submitted that if the District Munsif, Dindigul had come to the conclusion that the suit schedule mentioned property belongs to the plaintiffs, then the defendant is prepared to pay the monthly rent. Further, the defendant submits that the plaintiffs ought to have established their civil rights over the said property by way of suit for declaration, before filing the suit. Hence, the defendant has prayed to dismiss the above suit.
8. After recording averments of the plaintiffs and the written statement of the defendant, the Principal Munsif, District Court, Dindigul had framed five common issues, viz., "(i) Whether as per the prayer of the plaintiffs, the superstructure has to be removed and possession has to be delivered in favour of plaintiffs?
(ii) Whether the plaintiffs are entitled to receive the arrears of rent?
(iii) Whether the plaintiffs are entitled to receive future mesne profits from the defendant?
(iv) Is it true whether the defendant had spent money for constructing the building over the land?
(v) What other reliefs, the plaintiffs are entitled to?"
9. On the side of the plaintiffs P.W.1 viz., Azarath Ali was examined and 40 documents were marked as exhibits, viz., (1) A sale deed dated 24.02.1995 executed by the Church of South India to and in favour of plaintiffs, (2) legal notice issued by the counsel for the plaintiffs to the defendants, (3) legal notice dated 15.11.1995 issued by the counsel for the plaintiffs to the defendants in O.S.No.820 of 2004, (4) acknowledgment cards signed by the plaintiffs, (5) acknowledgment card signed by the defendants, (6) receipt for certificate of posting (7) and (8) acknowledgment cards signed by the defendants (9) reply notice issued by the defendants against the plaintiffs' legal notice (10) Advocate notice issued by the plaintiffs to the defendant in O.S.No.823 of 2004, (11) Acknowledgment card showing proof of delivery (12) Reply notice issued by the defendants to the counsel of plaintiff in O.S.No.823 of 2004, (13) legal notice issued by the counsel for the plaintiffs to the defendants, (14) Acknowledgment card for proof of delivery (15) Acknowledgment card showing proof of delivery on the second defendant (16) reply notice sent by the first defendant in O.S.No.824 of 2004, (17) legal notice issued by the plaintiffs advocate to the defendants in O.S.No825 of 2004, (18) and (19) acknowledgment cards showing proof of delivery to the defendants, (20) reply notice sent by the first defendant in O.S.No.825 of 2004 against the plaintiffs advocate notice, (21) legal notice issued by the plaintiffs to the defendant in O.S.No.826 of 2004, (22) acknowledgment card showing proof of delivery, (23) reply notice sent by the defendant to the plaintiff after receipt of the above said notice, (24) Advocates notice sent by the counsel for the plaintiff to the defendant in O.S.NO.829 of 2004, (25) Acknowledgment card showing proof of receipt of notice by the defendant, (26) reply notice sent by the defendants to the plaintiffs, (27) notice sent by the counsel for the plaintiffs to the defendants in O.S.No.828 of 2004, (28) acknowledgment card showing proof of receipt of notice by the defendants, (29) reply notice sent by the defendant after receipt of the above notice, (30) notice sent by the counsel for the plaintiffs to the defendants in O.S.No.829 of 2004, (31) acknowledgment card showing proof of receipt of notice by the defendant, (32) reply notice sent by the defendant to the plaintiff, (33) Notice sent by the counsel for the plaintiffs to the defendant in O.S.No.830 of 2004, (34) acknowledgment card showing proof of receipt of the above notice, (35) reply notice sent by the defendant to the plaintiffs, (36) Notice sent by the counsel for the plaintiffs to the defendant in O.S.No.822 of 2004, (37) Acknowledgment card showing proof of receipt of the above notice by the defendant, (38) notice sent by counsel for the plaintiffs to the defendant in O.S.No.822 of 2004, (39) acknowledgment card showing proof of receipt of the above notice, (40) reply notice sent by the defendant after receipt of the above notice.
10. On the side of the defendants 7 witnesses were examined viz., D.W.1-Arpudhasamy, D.W.2-Syed Ali, D.W.3-Palanisamy, D.W.4-Ramakrishnan, D.W.5-Thammanan, D.W.6-Sesuraj, D.W.7-Mariyappan. On the side of the defendants 62 exhibits were marked, viz., (1) Notice sent by the third and fourth defendants to the plaintiff in O.S.No.820 of 2004, (1A) receipt issued by the Church of South India Trust Association to the defendant in O.S.No.828 of 2004, (2) receipt showing taking of Demand Draft for Rs.1,500/- by the Treasurer to and in favour of Madurai, (3) receipt issued by the Church of South India Trust Association to the defendant in O.S.No.828 of 2004, (4) receipt issued by the Church of South India Trust Association dated November 1996 to the defendant in O.S.No.828 of 2004, (5) receipt issued by the Church of South India Trust Association dated January 1995 to the defendant in O.S.No.825 of 2004, (6) receipt issued by the Church of South India Trust Association dated February 1995 to the defendant in O.S.No.825 of 2004, (7) receipt issued by the Church of South India Trust Association dated November 1996 to the defendant in O.S.No.825 of 2004, (8) receipt issued by the Church of South India Trust Association dated January 1995 to the defendant in O.S.No.829 of 2004, (9) receipt issued by the Church of South India Trust Association dated January 1995 to the defendant in O.S.No.830 of 2004, (10) reply notice issued by the counsel for the defendants to the counsel for the plaintiffs in O.S.No.827 of 2004, (11) Notice sent by the counsel for the defendants to the Assistant Engineer in the above case, (12) notice sent by the defendant to the Municipal Commissioner, Dindigul, (13) receipt showing proof of payment of rent by the defendant to Vijayalakshmi in O.S.No.830 of 2004, (14) certified copy of judgment in O.S.No.1169 of 1992, (15) and (16) certified copy of petition and judgment made in I.A.No.11 of 1995 in O.P.No.1 of 1995 before the District Sub Court, Dindigul, (17) copy of telegram sent by the defendant in O.S.No.830 of 2004 to Vijayalakshmi and Church of South India Trust Association, (18) Judgment in O.S.No.491 of 1995, on the file of Additional District Munsif, Dindigul (19) and (20), tax receipts in the name of the defendants in O.S.No.830 of 2004, (21) petition given by Sesuraj to the District Collector, Dindugl, (22) petition sent by Sesuraj to the Revenue Secretary, Chennai, (23) and (24) reply notices given by the defendant to in O.S.No.826 of 2004 to the plaintiffs, (25) notice given by the defendant in O.S.No.826 of 2004 to the Municipal Commissioner, Dindigul, (26) reply notice send by the defendant in O.S.No.824 of 2004 to the plaintiff, (27) copy of the counter sent by the first plaintiff in O.S.No.495 of 1995, (28) reply notice sent by the defendant in O.S.No.822 of 2004 to the plaintiff, (29) notice sent by the defendant to the Municipal Commissioner, Dindigul, (30) legal notice sent by the plaintiffs to the defendants in O.S.No.822 of 2004, (31) reply notice sent by the defendant to the plaintiffs in O.S.No.822 of 2004, (32) challan showing proof of taking demand draft Rs.250/- by the defendant in O.S.No.822 of 2004, (33) copy of judgment in O.S.No.558 of 1995, (34) reply notice sent by plaintiff to the defendant in O.S.No.822 of 2004, (35) challan showing proof of taking demand draft Rs.250/- by the defendant in O.S.No.822 of 2004, (36) to (42) paper publication in daily newspapers, (43) letter sent by the third respondent in O.S.No.820 of 2004 to the Revenue Department in O.S.No.820 of 2004, (44) letter sent by the third defendant in O.S.No.820 of 2004 to the Special Commissioner (Land Acquisition), (45) letter sent by the third defendant in O.S.No.820 of 2004 to the Revenue Secretary, (46) letter sent by the defendants to the District Collector, Dindigul, (47) copy of F.I.R., (48) copy of charge sheet, (49) rent receipts showing proof of payment of rent by the defendant in O.S.No.823 of 2004, (50) licence standing in the name of the defendant in O.S.No.823 of 2004, (51) challan showing proof of taking defendant draft for Rs.200/- by the defendant in O.S.No.823 of 2004, (52) copy of the judgment made in O.S.No.390 of 1995, (53) notice sent by the defendant in O.S.No.823 of 2004 to the Municipal Commissioner, Dindigul, (54) reply notice sent by the defendant in O.S.No.823 of 2004 to the plaintiffs, (55) petition sent by the defendant in the above case to the District Collector, Dindigul, (56) receipt showing payment of Rs.300/- in the name of Palanisamy, (57) reply notice sent by the defendant in O.S.No.825 of 2004 to the plaintiffs, (58) notice sent by the first defendant to the Commissioner, Dindigul, (59) copy of the order made in O.S.No.1171 of 1992, (60) receipt given by the Syed Ali, (61) reply notice sent by the defendant in O.S.No.828 of 2004 to the plaintiffs, (62) licence for the defendant in O.S.No.827 of 2004.
11. P.W.1 had adduced evidence that he is the second plaintiff in all the suits. The property comprised in Town Survey No.1113/2 originally belonged to the Church of South India Trust Association. They had given the property to one Vijayalakshmi for rent and she in turn had sub-let the property to various persons. The defendants 1 to 4 are Sub tenants under the said Vijayalakshmi. The defendants 1 and 2 had put up a separate structure and were doing business. The defendants 3 and 4 are sub tenants under the defendants 1 and 2. The Church of South India Trust Association had initiated action to vacate the said Vijayalakshmi from the property and consequently, the matter was compromised among themselves. P.W.1 further stated that the Church of South India Trust Association had agreed to execute a sale deed to an extent of 18000 sq.ft. Thereafter, the sub tenants of Vijayalakshmi had entered into a rental agreement with the Church of South India Trust Association. In the month of February 1995, the plaintiffs had purchased an extent of 18000 sq.ft. from the Church of South India Trust Association. To that effect, he had marked the sale deed in original suit in O.S.No.425 of 2001 as Ex.B1. Copy of the sale deed had been marked as Ex.A1. The sale deed had been disclosed to others. The tenants had not delivered the property to the plaintiffs as per the sale deed. Hence, legal notices have been issued to the defendants.
12. P.W.1 further stated that the subject matter of the property had been purchased for their own use and occupation. While the suit is pending, sub division was made on the suit schedule mentioned property as Survey No.1113/2. P.W.1 further stated that he had also obtained patta for the said property. The original patta had been filed in O.S.No.425 of 2001. The defendants are not entitled to relief under the Tamil Nadu City Tenancy Act. The defendants are liable to pay rent to the plaintiffs from the date of the sale deed until now. For the subsequent period, the defendants have to pay future mesne profit and hence, the plaintiffs have prayed to deliver the suit schedule mentioned property to them.
13. D.W.1 had adduced evidence that the suit schedule mentioned property originally belonged to the Church of South India Trust Association, who had let out the said property to one Tmt.Vijayalakshmi on rental basis for the land alone and she in turn had let out the same property to him and others as sub tenants. Thereafter, he and other sub tenants have constructed buildings over the said land and are in enjoyment of the same. D.W.1 further stated that the defendants have constructed a superstructure at their own costs and they had paid an advance and besides they are regularly paying monthly rent on or before the 5th of every calendar month to Tmt.Vijayalakshmi. The electricity service connection has been obtained in the name of Church of South India Trust Association. Regarding the said property, there was an agreement made between the Church of South India Trust Association and Tmt.Vijayalakshmi and the Church of South India Trust Association had agreed to allot 18000 sq.ft to the said Vijayalakshmi. The said Vijayalakshmi had not remitted the cost of the land to the Church of South India Trust Association. Thereafter, the Church of South India Trust Association and the defendants in all the suits made rental agreements and accordingly the defendants / tenants have been regularly paying monthly rent to the Church of South India Trust Association, besides depositing an advance amount.
14. D.W.1 further stated that the defendants have filed injunction suit against the Church of South India Trust Association and Vijayalakshmi not to evict them and the same was ordered in their favour. The entire suit schedule mentioned property was assigned to the Church of South India Trust Association by the Government. The said property was assigned to the Church of South India Trust Association in order to establish a school, teachers quarters, staff quarters, playground and a church (prayer hall). The Church of South India Trust Association have no right to sell the property. The plaintiffs have not disclosed that they have purchased the suit mentioned property. Likewise, the Church of South India Trust Association have not disclosed the same. The plaintiffs have demanded monthly rent from the defendants, for which, the defendants responded to the plaintiffs to show authenticated documents to prove the purchase of the said land. D.W.1 had further adduced evidence that the surveyor attached to the Revenue Department had measured the land to an extent of 18000 sq.ft and at that point of time, the surveyor disclosed that the property belonged to the Government. Thereafter, a notice had been issued by the District Revenue Officer to the Church of South India Trust Association stating that the said property had been assigned to the Church of South India Trust Association for educational purpose and not for commercial purpose and also sought an explanation from the Church of South India Trust Association.
15. D.W.1 further adduced evidence that the defendants had filed a suit against the plaintiffs stating that the sale deed is not valid as the revenue records have not been filed to that effect relating to the property. Besides, the defendants have also filed a suit against the Church of South India Trust Association, to execute a sale deed in their favour regarding vacant land. Further, the defendants agreed to pay the monthly rent to the owners of the property after the ownership of the property has been duly decided. D.W.2 to D.W.7 have also adduced evidence on similar lines to the evidence of D.W.1.
16. On recording the evidence of both sides and on hearing the arguments of the learned counsels on all sides and on perusing the exhibits marked by them, the trial Court decreed the suit in favour of the plaintiffs. Against the said decree and judgment passed in O.S.No.822 of 2004, dated 17.01.2005, on the file of District Munsif Court, Dindigul, the defendant has filed an appeal in A.S.No.100 of 2005, on the file of the Principal Sub Court, Dindigul. The learned Judge, after hearing the arguments of the learned counsel for their respective parties and on perusing the trial Court Judgment, dismissed the appeal and confirmed the decree and judgment passed by the trial Court.
17. Aggrieved by the concurrent findings of the Courts below, the above appeal has been filed.
18. On behalf of the appellants, the highly competent counsel has filed petitions for reopening the appeals after posting the appeals for orders. The same were rejected by this Court since the highly competent counsel had raised all the appeal grounds in the above second appeal. Further, this Court has to decide the above appeal after scrutinizing the judgments of both Courts and connected records and on perusing the appeal grounds of the appellants on merits. As such, this Court opines that the rejection of the reopen petitions filed by the appellants will not be prejudicial to the appellants.
19. The highly competent counsel appearing for the appellants has stated in his appeal that the trial Court having come to a conclusion in paragraph 55 that the dispute as regards title is bonafide, ought to have dismissed the suit holding that the plaintiff cannot seek to recover possession in the absence of a declaratory relief. That the Courts below ought to have appreciated that the suit as framed is not maintainable. The plaintiffs could not have purchased the property that belongs to the Government and assigned to the Church of South India under the provisions of Crown Grants Act, subject to conditions. Admittedly, the subject property belongs to the Church and even according to the plaintiffs Vijayalakshmi was a tenant in respect of the property. A dispute arose between Vijayalakshmi and the Church and the plaintiff had purchased the property from the Church after knowing that the structure had been raised by the tenant. Notice directing the tenants to vacate the premises was also resisted by denying the title of the plaintiffs on the ground of inalienability of the property. Under such circumstances, the Courts below should have followed the judgment reported in AIR 2008 SC 2033 that the suit itself is not maintainable.
20. The highly competent counsel appearing for the appellants submits that the Courts below should have appreciated that the defendant / appellants are entitled to raise objections with regard to sale of property by CSI as the conditions imposed by the Government is a covenant running with the land. The observation of the Court below in paragraph 56 is legally untenable. The highly competent counsel further submits that the Courts below should have appreciated that the defendants are entitled for being compensated by the CSI in respect of the property raised by them. The so-called successor in interest does not enjoy a superior status and cannot maintain a suit simpliciter for recovery of possession (this ground is raised without prejudice to the rights of the defendants challenging the maintainability of the suit). The highly competent counsel further submits that the Courts below should have appreciated that the necessity of the Government to seek for rent does not arise on the facts of the case. On the contrary, under the presumption that the suit property belongs exclusively to the CSI, the plaintiffs have filed the present suit. The suit property belongs to the Government and this had been affirmed by the State in their written statement and the letter of the Collector filed as Ex.A11 in the suit filed by the Sangam. The highly competent counsel further submits that the Courts below should have appreciated that the plaintiff had failed to establish that the title to the property by production of original records. Merely despatching notice under Section 106 will not ipso facto confer title upon the plaintiffs. The highly competent counsel further submits that the trial Judge had arrived at a wrong finding in paragraph 57 as neither denial had been made as regards the plaintiffs title nor assertion of right under the provision of City Tenants Protection Act. The rights of the plaintiffs depends upon the validity of purchase. When the plaintiff had neither chosen to examine his vendor nor produced anterior title deeds to establish their vendor's title and instead chosen to merely mark the notices and the document of purchase alone, it is the obligation of the Court to reject it as the suit is not maintainable.
21. The highly competent counsel appearing for the appellants further submits that the Courts below had presumed title for the plaintiffs and assumed that the defendants cannot deny the plaintiffs right. It had also wrongly invoked the provision of Section 111(g) as if the defendants have forfeited their rights. The Courts below had overlooked the fact that in a suit for recovery of possession, it is the obligation of the plaintiffs to establish their title and the nature and character of the property as capable of being transfered. Primarily this issue should have been answered by the Court, but unfortunately the Courts below had gone on a wrong footing as if the same concession shown by the plaintiffs' purchasers in agreeing to recognize the occupants as tenant should have prompted payment of rents and acceptance of title. The highly competent counsel further submits that the observation of the trial Court in paragraph 59 of the judgment is strange and shocking when it had refused to advert to the issue of title, despite the fact that the defendants have produced voluminous document to substantiate the case of inalienability of the property. The highly competent counsel further submits that the Courts below have not taken into consideration the document under Ex.B43, B44, B45 and B46 and, it had arrived at a conclusion that it is wholly against the records. The highly competent counsel further submits that the findings of the trial Court that the tenant becomes a trespasser in paragraph 61 of its order is without justification and overlooks the material evidence placed before it. The Courts below had merely recorded the ruling without appreciating its applicability. The Courts below should have known that the precedents should follow the cause and the case should not be fit to suit the precedents. There is absolutely no discussion on facts by the lower appellate Court and as a final Court of fact it is expected of the learned Judge to approach the subject judicially. The Courts below ought to have seen that the suit property had been assigned to Church of South India by the Government under G.O.Ms.210, Revenue Department, dated 04.02.1933. The purpose for assignment is for constructing church, quarters for teachers and employees. The power of alienation is unavailable to CSI and hence, the sale in favour of the plaintiffs is void and illegal.
22. The highly competent counsel for the appellants further submits that the Courts below ought to have seen the letter addressed by the District Collector, Dindigul under Ex.A11. As the Church had engaged in alienation of the property in violation of the assignment condition, the District Collector had called upon the Church to offer its explanation as to why the assignment should not be cancelled. Without there being an assignment, the District Collector would not have written such a letter. The Courts below ought to have seen that the nature of property had been established by production of document under Ex.A11 in the suit instituted by the appellants. Furthermore, the State had filed a written statement before the Court affirming the property as one assigned by the State. There is nothing to disbelieve the statement made by the competent authority before a Court of law. The finding to the contrary is absolutely reckless and perverse. The Courts below ought to have appreciated that PW1 had accepted the survey number of the properties as one tallying with the property which is assigned to the Church. He had pleaded that the CSI had independently purchased the property and that private holdings alone had been dealt with in his favour, but he had miserably failed to prove that the properties of the Church is its private holdings. The anterior title deeds of such a purchase had not been produced. Even though it is claimed that the original documents were perused before purchase, the same was not summoned and marked before the Court. Instead of drawing adverse inference against the plaintiffs, the Courts below had decreed the suit assigning totally unacceptable and unfair reasoning. The highly competent counsel further submits that the Courts below ought to have seen that the patta is not a document of title. Opposed to those settled principles, the Courts below had assumed title based on the grant of patta in favour of the defendants. Such an approach is erroneous and illegal. The Courts below ought to have seen that the plaintiffs have taken contradictory stand with respect to the nature of property. The plaintiffs are not sure of their title and under such circumstances, the Courts below should have dismissed the suit. The Courts below ought not have relied on the sale deed under Ex.A1, when neither title nor parent documents have been produced and for non-examination of their vendor, which is fatal on the facts and circumstances of the case.
23. The highly competent counsel appearing for the appellants has raised the following substantial questions of law:-
(a) Could a property be a subject matter of sale when the grant is impinged with conditions of inalienability?
(b) When the suit property had been assigned in favour of Church of South India with conditions of inalienability, are the Courts below justified in recognizing Ex.A1?
(c) Are the Courts below justified in not drawing adverse inference against the plaintiffs when they have miserably failed to produce the documents of title, despite having disclosed to the Court of having accessibility?
(d) Whether non-examination of the vendor of the plaintiffs is not fatal to their case?
(e) Is the lower appellate Court justified in invoking the plea of estoppel, when such principle has no application on the title of the plaintiffs being challenged?
(f) Is the principle of jus terti inapplicable to the facts and circumstances of the case?
(g) When the defendants have failed to produce any documents to sustain the case, are the Courts below justified in drawing an inspiration based on pattas, a revenue record?
(h) Whether the Courts below having held that the denial of title is bona-fide failed in law in not investigating into it?
(i) Whether the Courts below are right in applying the principles of estoppel when the alleged transfer of title from the Church of South India to the plaintiffs is in violation of the Crown Grants Act?
(j) Whether the Courts below are right in not appreciating that recognition of transfer in favour of the plaintiffs is opposed to public policy inasmuch as it is in violation of the terms and conditions of assignment?
(k) Whether the suit for recovery of possession is maintainable when the title of plaintiffs is under serious dispute?
(l) Whether the suit is maintainable in the absence of State being made party to the proceedings?
(m) Whether the notice under Section 106 of Transfer of Property is sufficient for maintainability of the suit, when neither the title of the plaintiffs is accepted by the defendants nor the relationship of landlord and tenant?
24. The highly competent counsel appearing for the respondents further submits that the plaintiffs had purchased the suit schedule mentioned property to an extent of 18000 sq.ft. from the vendor, viz., Church of South India Trust Association under a registered sale deed dated 24.02.1995 and the same was informed to the defendants / tenants by way of Advocates notice. The defendants had not paid the monthly rent to the plaintiffs with effect from March 1995 onwards and as such, the defendants have committed willful default. The highly competent counsel further submits that pending disposal of the second appeal, they have to pay the rent as originally paid to the Church of South India Trust Association and they have paid partly and they have not complied with the interim order passed by this Court. Further, the property is required for the plaintiffs for their occupation and own use, after constructing a new building thereon. The highly competent counsel further submits that after purchasing the said property, the plaintiffs had obtained patta from the Revenue Tahsildar, after personal inspection by the highest Revenue Authority and after being cleared by the Survey and Settlement Department at Chennai. The plaintiffs had marked two documents, viz., registered sale deed and patta and proved the ownership of the property. Regarding ownership, there is no dispute over the said property. The allegation of the defendants that the property was belonging to the Government and the said property was classified as Government poromboke land is not sustainable since the Taluk Tahsildar, who is attached to the Revenue Department, had issued the patta. The defendants are unlawful tenants under the said Vijayalakshmi and as such, they have no locus standi in continuing to enjoy the said property. The defendants as of now have not paid any rent to the plaintiffs for their occupation and enjoyment and as such, the defendants are chronic defaulters. Besides, the said property is registered to the plaintiffs for their own occupation. These two grounds were established before the trial Court and as such, the trial Court decreed the suit and ordered eviction. The same was confirmed by the first appellate Court on merits after perusing the trial Court Judgment and exhibits marked by both parties.
25. The highly competent counsel appearing for the respondents further submits that the defendants have been enjoying the property for around 20 years without paying rent to the plaintiffs. As such, the plaintiffs are suffering and also put into hardship. Hence, the highly competent counsel entreats the Court to dismiss the above appeal and direct the defendants / tenants to vacate the premises and hand over the same to the plaintiffs. The plaintiffs have been remitting the mandatory taxes to the statutory authorities regularly since they are the absolute owners of the property. Except the plaintiffs, no one is claiming ownership over the said property, more so, the Government or the said Vijayalakshmi or the vendor, viz., the Church of South India Trust Association and as such, the allegation of the defendants that the property belongs to the Government have not been proved.
26. On considering the facts and circumstances of this case, this Court is of the view that:-
(i) D.W.1. had adduced evidence that the suit schedule mentioned property had been let out by the Church of South India Trust Association to and in favour of Tmt.Vijayalakshmi, who in turn sub-let the property to all the defendants in all the suits. To that effect, there is no authenticated documents and besides this, the original owner viz., Church of South India Trust Association had not given any consent to sub let the property by the principal tenant to and in favour of all the defendants.
(ii) The defendants have stated in their written statements respectively in all the suits stating that the suit schedule mentioned property belongs to the Government and the said property classified as Government property belong to the Government and the said property has been classified as Government poromboke land. In order to prove the same, no Government revenue officials have been examined and besides this, the defendants have not produced any documentary proof to show that the property is Government poromboke land. From the above, it can be clearly adduced that it is a case of misconception.
(iii) The defendants in all suits have not proved that they are sub tenants under the principal tenant, viz., Vijayalakshmi. In order to establish this contention, the said Vijayalakshmi was not examined. As such, the plea of the defendants have not been supported by production of reliable evidence. The main witnesses viz., Vijayalakshmi, who was the principal tenant and the Government officials who are attached to the Revenue Department were not examined and as such, the plea of the defendants becomes inconsistent.
(iv) The averments of the plaintiffs was that the suit schedule mentioned property had been purchased by them from the Church of South India Trust Association under a registered sale deed in the month of February 1995.
On the strength of the sale deed, the Revenue Tahsildar had issued a patta to and in favour of the plaintiffs herein. It clearly proves that the property belongs to a private individual. The plaintiffs also had marked two relevant documents viz., registered sale deed and patta and therefore, it is evident that the plaintiffs are the absolute owners of the suit schedule mentioned property.
(v) The defendants in all the suits have categorically admitted in the respective written statement that they are sub tenants. The sub tenants are always tenants and they have no civil rights over the said property. As such, the eviction order is necessitated to evict them.
(vi) Initially, the suits have been filed in the year 1995 and as such, 20 years have elapsed. Therefore, the defendant / appellant herein has to vacate his respective occupation portion within a period of three months from the date of receipt of this direction.
(vii) This Court directs the tenant to remove the superstructure and handover the vacant possession to the plaintiffs. This Court further directs the tenants to pay the arrears of rent till they vacate from the premises.
(viii) This Court curtails the "Execution Proceedings" in order to avoid further delay and multiple proceedings in a repetitive manner. This observation has been taken after invoking the discretionary powers of this Court vested with it. Therefore, in the event of the failure by the tenant / defendant to vacate his occupation and in the event of their failure to handover the vacant portions to the plaintiffs, the plaintiffs are at liberty to seek Police intervention for evicting the unauthorized defendant from the suit schedule mentioned property. In order to seek Police intervention, the plaintiffs shall pay a sum of Rs.20,000/- to the State Exchequer through the Jurisdictional Sub-Treasurer and produce the cash payment challan along with the requisition letter to the Jurisdictional Police Inspector, who in turn will provide adequate police personnel using a mild operation for the eviction of the defendants so as not to affect the social status of all those concerned.
27. Considering the facts and circumstances of the case and on perusing the appeal grounds as well as the judgments of both Courts and arguments advanced by the highly competent counsels for the respondents and the views of this Court as mentioned above (i) to (viii), this Court dismisses the above second appeal. Consequently, the judgment and decree passed in A.S.No.100 of 2005, on the file of Principal Sub Court, Dindigul, dated 29.03.2010, confirming the judgment and decree in O.S.No.822 of 2004, on the file of the Principal District Munsif Court, Dindigul, dated 17.01.2005 is confirmed. The respondents / plaintiffs are at liberty to follow in-particular view No.(viii) made by this Court, if the appellant herein/ defendant / tenant has not vacated the premises within a period of three months from the date of receipt of this order. The cost will be borne by both parties as per their requirements individually. Consequently, connected miscellaneous petition is closed.
30/04/2015
(6/11)
Index : Yes/No.
Internet : Yes/No.
r n s
To
1. The Principal Sub Court,
Dindigul.
2. The Principal District Munsif Court,
Dindigul.
C.S.KARNAN, J.
r n s
Pre Delivery Order made in
S.A.(MD)No.465 of 2010 &
M.P.(MD)No.1 of 2010
30/04/2015
(6/11)