The second appeal has been filed against the judgment and decree, dated 17.2.1993, made in A.S.No.25 of 1992, on the file of the District Court, Nagapattinam, confirming the judgment and decree, dated 13.12.1991, made in O.S.No.79 of 1991, on the file of the District Munsif Court,Tiruvarur.
2. The plaintiff in the suit, in O.S.No.79 of 1991, is the appellant herein. The defendant in the said suit is the respondent herein. The suit had been filed by the plaintiff for vacant possession and for mesne profits.
3. The brief facts of the case, as stated by the plaintiff in his plaint, are as follows:
The suit property belongs to the plaintiff Temple. The patta in respect of the suit property is in the name of the temple. The suit property, with Patta No.166, is a vacant land. The defendant had, illegally, encroached upon the suit property and he has been in enjoyment of the said property from the year 1980. The defendant has no right in the suit property, as he is only an encroacher. At the time of the renovation of the temple in the year, 1985, the defendant had agreed to vacate the suit property belonging to the Temple, since the defendant has no right whatsoever in the said property.
4. It has also been stated that the suit property belongs to the Trustee of the plaintiff Temple. According to Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, there is a prohibition to sell, exchange or mortgage, the suit property. By an order, dated 19.11.1969, the Commissioner, Hindu Religious and Charitable Endowments Department, had asked the Executive Officer of the Thiruvarur Sri Thiyagarajaswamy Temple to take charge of the suit temple. The Executive Officer of the suit Temple is the appropriate person to represent the temple and therefore, he has instituted the present suit by filing the plaint. Even though the plaintiff had issued a notice, dated 27.7.1990, to the defendant asking him to handover the possession of the suit property, the defendant had not replied to the said notice. As such, the defendant is liable to hand over the possession of the suit property to the plaintiff. In the above circumstances, the plaintiff had filed the suit, in O.S.No.79 of 1991, praying for the relief, as stated therein.
5. In the written statement filed by the defendant, it has been stated that the allegation in the plaint that the defendant had trespassed over the suit property in the year, 1980, is false. The defendant has been in possession and enjoyment of the suit property from the year, 1953, as a lessee, under the plaintiff Temple. The lease has been recognised by the Deputy Commissioner of Hindu Religious and Charitable Endowments Department, in M.P.No.5 of 1987. As the defendant is the lessee, in respect of the suit property, he is not a trespasser, as alleged in the plaint. The right of the defendant, as a lessee, had not been terminated by any means known to law.
6. It has also been stated that the suit filed by the plaintiff for recovery of possession, based on the title, is not legally sustainable, as the defendant is not the trespasser. The defendant is wiling to purchase the land, based on its value. The prayer in the suit for the possession of the property cannot be granted, as there is no termination of the lease. As such the suit is liable to be dismissed, as being devoid of merits.
7. In view of the averments made in the plaint, as well as in the written statement, the trial Court had framed the following issues for consideration:
1. Whether the plaintiff is entitled to the possession of the suit property?
2. Whether the plaintiff would get the mesne profits?
3. To what relief, the plaintiff is entitled to?
8. The trial Court had found that the suit property, in T.S.No.1970/1, is situated at the back side of the house of D.W.1. Arulmighu Thiru Neelakanteswarar Temple had earlier been under the administration of the Trustee. At that time, the trustees of the temple had given the paguthi rights in the suit property to various persons and they have been enjoying the same. Thereafter, by an order issued by the Commissioner, Hindu Religious and Charitable Endowments Department, in the year, 1969, the administration of the plaintiff temple had been brought under the charge of the Executive Officer of the Thiruvarur Sri Thiyagarajaswamy Temple. In the year, 1969, when the Executive Officer of Sri Thiyagarajaswamy Devasthanam had taken charge of the administration of the plaintiff Temple, P.W.1 had been in enjoyment of the suit property, having the paguthi right. There is no denial by the plaintiff temple that in the year, 1953, Thiagaraja velar was the trustee and thereafter, Veeraiyah velar had been the trustee. At the time when Thiagaraja velar was the trustee of the temple, D.W.1 had taken the property and had also executed a document in that regard. The said document had been marked as B.5. From Exhibits B.1 to B.3, it is clear that when Veeraiyah velar was the trustee of the plaintiff temple, a petition had been submitted to the Deputy Commissioner of Hindu Religious and Charitable Endowments Department, Mayiladuthuria, against D.W.1 claiming for the possession of the property, under section 78 (2) of the Hindu Religious and Charitable Endowments Act, 1959, and that the said petition had been closed, on 16.3.1988, based on a compromise. Thereafter, D.W.1 has been in enjoyment of the suit property, based on the said compromise. Even though the plaintiff had stated in the plaint that till the year, 1980, the suit property had been a vacant land and thereafter, the defendant had been enjoyment of the said property, having encroached upon the said property, Sri Thiyagarajaswamy Temple had not taken possession of the suit property. P.W.1 had stated, in his evidence, that Sri Thiyagarajaswamy Temple had not taken possession of the suit property. P.W.1 had admitted that when the administration of the plaintiff temple had been taken over by Thiruvarur Sri Thiyagarajaswamy Temple in the year, 1969, he has not taken the possession of the suit property. Therefore, from the evidence of P.W.1, D.W.1 has been in enjoyment of the suit property from the year, 1953, as the paguthitharar. P.W.1 had not denied the fact that the suit property belongs to the plaintiff temple. The defendant is liable to pay the paguthi rent to the plaintiff temple. In case of failure on the part of the defendant to pay the paguthi rent, it is open to the temple to take necessary action against the defendant for the recovery of the rental amount. Further, since the temple had not issued any notice to the defendant, terminating his paguthi right, the temple is not entitled for the reliefs sought for in the suit. Accordingly, the trial court had dismissed the suit, by its judgment and decree, dated 13.12.1991, made in O.S.No.79 of 1991.
9. Aggrieved by the said judgment and decree, the plaintiff temple had filed the first appeal before the District Court, Nagapattinam, in A.S.No.25 of 1992. The first appellate court had framed the following point for consideration:
1. Whether the plaintiff is entitled to the possession of the suit property?
10. The first appellate Court had found that there was no dispute about the fact that the suit property belongd to the plaintiff temple. Even though the plaintiff had claimed that the defendant had, illegally, encroached upon the suit property, from the year, 1980, and he has been in enjoyment from the year, 1980, the defendant had stated that he is in enjoyment of the suit property, with the permission of the plaintiff temple, as a lessee. Therefore, the main issue to be decided by the first appellate Court was whether the defendant has been in enjoyment of the suit property, with the permission of the plaintiff temple or that he has been in enjoyment of the suit property, having encroached upon the same.
11. The first appellate Court had noted that by a notice, dated 27.7.1990, the Executive Officer of the plaintiff Temple had issued a notice to the defendant stating that he was in illegal enjoyment of the suit property belonging to the plaintiff Temple. A copy of the said notice had been marked as Ex.A.2. The said notice had been received by the defendant. At the same time, the plaintiff had initiated an action against the defendant to vacate him from the suit property, which he has been in unauthorised occupation by filing a petition, before the Deputy Commissioner of the Hindu Religious and Charitable Endowments Department, Thanjavur, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959. Since a compromise was made between the plaintiff and the defendant, the Deputy Commissioner of the Hindu Religious and Charitable Endowments Department, had passed an order, dated 16.3.1988, closing the petition, based on a compromise deed filed before him. A copy of the said order, dated 16.3.1988, had been marked as Exhibit B.3. Copies of the summons issued in respect of the said proceedings had been marked as Exhibits B.1 and B.2. The compromise deed mentioned in the order of the Deputy Commissioner, dated 16.3.1988, had been marked as Exhibit B.4. The defendant had signed the compromise deed and one Veeriyan had signed in the said deed, on behalf of the plaintiff temple. It had been contended on behalf of the plaintiff that since an action had been initiated against the defendant, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959, and as the lease had been granted to the defendant, without obtaining the permission of the Commissioner, in accordance with Section 34 of the Hindu Religious and Charitable Endowments Act, 1959, the enjoyment of the suit property, by the defendant, is illegal. However, the first appellate Court had not accepted the said contentions raised on behalf of the plaintiff, since it had noted that the defendant had been in occupation and enjoyment of the suit property, with the permission of the plaintiff, for many years, as seen from Exhibit B.4 .
12. The first appellate Court had also found that there had been an agreement, dated 9.1.1953, between the father of the defendant, namely, Thiagaraja Pillai and Thiagaraja Velar, the trustee of the plaintiff temple. The said agreement had been marked as Exhibit B.5. Accordingly, the father of the defendant had been permitted to enjoy the suit property, for about 10 years. After the expiry of the said period, Thiagara Pillai had been in enjoyment of the property. After the death of Thiagara Pillai, the defendant had been in enjoyment of the suit property. In such circumstances, the first appellate Court had held that the contentions raised on behalf of the plaintiff temple, that the defendant had been in illegal occupation of the suit property, cannot be accepted. Therefore, the first appellate Court had concurred with the views of the trial Court. However, the first appellate Court had stated that it would be open to the plaintiff temple to take possession of the suit property, by following the procedures established by law. Accordingly, the first appellate Court had dismissed the first appeal by its judgment and decree, dated 17.2.1993.
13. Aggrieved by the judgment and decree of the first appellate Court, dated 17.2.1993, made in A.S.No.25 of 1992, the plaintiff had filed the present second appeal before this Court. The second appeal had been admitted on the following substantial question of law:
1. Whether the lease under Exhibit B.5 is not valid in view of Section 77 of the Hindu Religious and Charitable EndowmentsAct, 1959.?
14. The learned counsel appearing on behalf of the appellant had contended that the Courts below ought not to have relied on the alleged lease deed, dated 9.1.1953,marked as Exhibit B.5, as it had not been executed by both the lessor and the lessee and since it was not a registered document. The said deed is non est in law for want of proper execution and registration. The Courts below had failed to hold that the suit property appurtenant to the appellate temple and that it is situated within the precincts of the temple. Further, the first ate Court had failed to appreciate that there cannot be any estoppel against the statute. The first appellate Court ought to have held that the alleged compromise filed before the Deputy Commissioner, the Hindu Religious and Charitable Endowments Department, Mailaduthurai, is null and void, as it is contrary to Sections 34(1) and 77 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
15. The learned counsel appearing on behalf of the appellant had contended that after the coming into force of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the alleged lease in favour of the respondent, in accordance with Exhibit B.5, cannot be continued, as it had become illegal. The order passed by the Deputy Commissioner, the Tamil Nadu Hindu Religious and Charitable Endowments Department, on 16.3.1988, marked as Exhibit B.3, is irregular, in view of Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, as he had no power to accept any compromise between the parties, especially, when the trustee of the appellant temple was not a litigant in the proceedings before the said authority.
16. The learned counsel appearing on behalf of the appellant had also submitted that since it is an undisputed fact that the suit property belongs to the appellant temple, the respondent ought to have proved the fact that there was a lease deed, dated 9.1.1953, marked as Exhibit B.5. However, it has been claimed that the alleged lease was for a period of 10 years only. Even otherwise, the lease deed ought to have been registered, in accordance with Section 107 of the Transfer of Property Act, 1882. As such, the said lease deed was inadmissible in evidence, as seen from
section 17(1)(d) of the Registration Act, read along with Section 49(c) of the said Act. Further, the said lease deed had not been executed by both the lessor and the lessee. Further, it had been superseded by a lease deed, dated 1.3.1988, marked as Exhibit B.4. As such, the lease deed, marked as Exhibit B.5, had been extinguished, in view of
Section 62 of the Indian Contract Act. Even the second lease deed, dated 1.3.1988, had not been registered, even though the said deed ought to have been compulsorily registered, in accordance with
section 17(1)(d) of the Registration Act, 1908..
17. The learned counsel appearing on behalf of the appellant had also contended that a lease for a term exceeding five years is null and void unless it has been sanctioned by the Commissioner, as being necessary or beneficial to the religious institution concerned, as seen from Section 34 read with Section 6(18) of the Hindu Religious and Charitable Endowments Act, 1959. However, there was no sanction by the Commissioner before the lease deed, dated 1.3.1988, marked as exhibit B.4, had been entered into. Since Exhibit B.3, which is an order passed by the Deputy Commissioner of the Hindu Religious and Charitable Endowments Department is based on Exhibit B.4, lease deed, dated 1.3.1988, it cannot have any legal validity. Further, Section 77 of the Hindu Religious and Charitable Endowments Act, 1959, prohibits the grant of lease, if it relates to any land, which is appurtenant to or adjoining the religious Institution. Even the Commissioner of the Hindu Religious and Charitable Endowments Department could grant the sanction for a lease only in respect of the land situated outside the precincts of the religious Institution. Since the suit land, which is the subject matter of the lease deed, dated 1.3.1988, marked as exhibit B.4, is appurtenant to or adjoining the `Nandavanam' of the plaintiff temple, the suit land is res extra commercium.
18. The learned counsel had further submitted that since Exhibits B.4 and B.5 are null and void ab initio, the respondent cannot claim any right, whatsoever, in or over the suit property. Since there is no lease, the necessity to issue a notice terminating the alleged lease would not arise. Further, the respondent is an encroacher, as he is in unauthorized occupation of the suit property, without the approval of the competent authority, who is the Commissioner of the Hindu Religious and Charitable Endowments Department. Even otherwise, the alleged lease, under Exhibit B.4, had expired long back. It is also to be noted that the respondent had not paid any rent to the plaintiff temple, in respect of the suit property, even though he had claimed that he was lessee. Since the respondent had not replied to the notice, dated 27.7.1990, marked as Exhibit A.2, issued on behalf of the plaintiff temple, adverse inference could be drawn against the respondent, in view of section 114 of the Evidence Act, 1872. Further, according to Section 109 of the Hindu Religious and Charitable Endowments Department Act, there is no limitation for the recovery of any immovable property of the temple.
19. Per contra, the learned counsel appearing for the respondent had submitted that the Courts below had rightly held that the reliefs sought for by the appellant in the suit, in O.S.No.79 of 1991, cannot be granted, in view of the fact that the respondent is in occupation and enjoyment of the suit property, which belongs to the appellant temple, as a lessee, in view of the lease deed, dated 9.1.1953, marked as Exhibit B.5 and the lease agreement, dated 1.3.1988, marked as Exhibit B.4. Therefore, the allegation of the appellant that the respondent is an encroacher in the suit property cannot be accepted. The appellant temple is estopped from making the claim that the respondent is in unauthorised and illegal occupation and enjoyment of the suit property, after having entered into an agreement of lease, on 1.3.1988, with the respondent. Further, the suit filed by the appellant temple is not maintainable, in view of the fact that it has been instituted by the executive officer of the plaintiff temple.
20. On such a contention being raised by the respondent, the learned counsel appearing for the appellant had relied on the decision, in SOBHANADRESWARA RICE MILL Vs. BRAHMACHARI BAVAJI MUTT (1973 1 ANDHRA WEEKLY REPORTER 255) to state that the suit filed by Sri Brahmachari Bavaji Mutt, Vijayawada represented by Sri Sikhadev Rathi, is in order and that the contention of the learned counsel appearing for the respondent, with regard to the maintainability of the suit, cannot be countenanced.
21. In view of the submissions made by the learned counsel appearing for the appellant and the learned counsel appearing for the respondent and on a perusal of the evidence available on record, it can be seen that there is no dispute, with regard to the fact that the suit property belongs to the plaintiff temple. Even if the claim of the respondent that he has been in possession of the suit property belonging to the plaintiff temple, as a lessee, in view of the lease deed, dated 9.1.1953, marked as Exhibit B.5 and the lease agreement, dated 1.3.1988, marked as Exhibit B.4 is accepted, there is no doubt that the lease had been granted to the defendant by way of lease agreement, dated 1.3.1988, for a period of 10 years only. There is no evidence on behalf of the respondent to show that the lease period had been extended beyond the initial period of lease, which was for 10 years. Further, since both the lease deed, dated 9.1.1953, and the lease agreement, dated 1.3.1988, were unregistered, the evidentiary value and the status of unregistered documents are governed by
sections 17(1)(d), and
49(c) of the Registration Act, 1908, and section 107 of the Transfer of Property Act, 1882.
22. There is no doubt that the Courts below had arrived at their conclusions by rejecting the claims made by the appellant herein relying on the unregistered documents, marked as Exhibits B.4, dated 1.3.1988 and Exhibit B.5, dated 9.1.1953. It is also clear that the lease, said to have been granted in favour of the respondent, is contrary to the provisions of Section 34, read with section 6(18) of the Hindu Religious and Endowments Act, 1959, as well as Sections 77 and 78 of the said Act. When it is evident from the terms of Exhibit B.4 that the suit land is appurtenant to or adjoining the `Nandavanam' of the plaintiff temple, even the Commissioner of the Hindu Religious and Charitable Endowments Department, could not have granted the lease in favour of the respondent, as he did not possess the power to do so. The occupation and enjoyment of the suit property, by the respondent, beyond the period of 10 years from the date of the lease deed, dated 1.3.1988, marked as Exhibit B.4, would be unauthorised, in view of Section 78(1)(a) of the Hindu Religious and Charitable Endowments Act, 1959, unless it is shown that the lease, said to have been granted in favour of the respondent, by way of the lease deed, dated 1.3.1988, had been extended, subsequently. However, there is nothing on record to show that the lease granted in favour of the respondent, in the year 1988, had been extended, thereafter. Further, the allegation of the appellant that the respondent had not paid any rent to the appellant temple, pursuant to the alleged lease agreement, dated 1.3.1988, had not been refuted by the respondent.
23. As seen from the available evidence, the appellant had sent the notice, dated 27.7.1990, marked as Exhibit A.2, claiming that the respondent was in unathorised and illegal occupation of the suit property belonging to the appellant temple and that the respondent should vacate the suit property, had not been replied to by the respondent . In such circumstances, in view of the substantial question of law raised in the present second appeal, this Court is of the considered view that the Courts below had erred in rejecting the reliefs sought for by the appellant temple. This court is also of the view that it would be futile to drive the appellant temple to take recourse to the other procedures established by law, at this stage, to evict the respondent from the suit property. In fact, the respondent had not shown as to the procedures, that are available to the appellant, to vacate the respondent from the suit property. Hence, the principles of equity and the interest of justice demands that the reliefs sought for by the appellant, is to be granted by directing the respondent to vacate from the suit property and to hand over the vacant possession of the said property to the appellant, within a period of three months from today. Further, it is made clear that it would be open to the appellant to initiate appropriate proceedings in respect of the claim for mesne profits. Therefore, the judgment and decree of the Courts below are contrary to law and the facts and the circumstances of the case.
24. For the reasons stated above, the judgment and decree of the Courts below are set aside. Accordingly, the second appeal stands allowed. No costs.
lan To:
1. The District Court, Nagapattinam
2. The District Munsif Court, Tiruvarur