This second appeal has been filed against the judgment and decree, dated 21.2.2007, made in A.S.No.90 of 2006, on the file of the Additional District Court, Fast Track No.II, Chennai, confirming the judgment and decree, dated 2.3.2005, made in O.S.No.417 of 1982, on the file of the XII Assistant City Civil Court, Chennai.
2. The defendant in the suit, in O.S.No.417 of 1982, is the appellant in the present second appeal. The plaintiff in the said suit is the respondent herein. The suit, in O.S.No.417 of 1982, had been filed praying for a decree directing the defendant to deliver vacant possession of the suit property to the plaintiff, and for costs.
3. It has been stated that the plaintiff temple is the sole and absolute owner of a portion of a vacant site at No.881, Poonamallee High Road, Chennai, measuring about 1000 sq.ft., comprised in R.S.No.28. The said property had been let out to the defendant on a monthly rent of Rs.42/-, by way of a registered lease agreement executed, on 22.12.1978. According to the terms of the lease agreement, the defendant was not authorised, either to sublet or to alienate the suit property.
4. It has been further stated that the lease agreement had expired, on 21.12.1979. After the lease period had expired by efflux of time, the defendant has no locus standi to remain in possession of the suit property. Therefore, he is liable to be evicted from the said property. In such circumstances, the plaintiff had issued a notice to the defendant, on 4.11.1981, terminating the tenancy of the defendant, by the end of the month of November, 1981, and called upon the defendant, to quit and deliver vacant possession of the suit property. The said notice had been served on the defendant through personal delivery. The defendant, after having received the said notice, had acknowledged the receipt of the same, by affixing his signature, on 4.11.1981. It had also been stated that, after the termination of the tenancy, the defendant is liable to vacate the suit property.
5. It had also been stated that the suit property had been exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, vide G.O.Ms.No.2000, Home, dated 16.8.1976. However, since, the defendant had not vacated the suit property, the plaintiff had filed the suit, in O.S.No.417 of 1982.
6. In the written statement filed on behalf of the defendant, the averments and allegations made in the plaint, filed by the plaintiff, had been denied. It had been admitted that the plaintiff temple is the sole and absolute owner of a portion of the vacant site, measuring about 1370 sq.ft. at No.881, Poonamallee High Road, Chennai. The defendant had denied the claim of the plaintiff that he had been put in possession, as a tenant, only in an extent of 1000 sq.ft.
7. It had also been stated that the defendant had put up a pucca superstructure in the suit property and had been doing business therein, as an automobile mechanic. The plaintiff had not objected to the putting up of the superstructure in the suit property. Further, the defendant had denied the allegation of the plaintiff that the lease had expired, on 21.12.1979. In fact, the intention of the parties to the lease agreement was to have a permanent lease.
8. It had also been stated that the defendant does not remember having acknowledged the receipt of the notice, dated 4.11.1982 by affixing his signature. It had also been stated that the plaintiff had not complied with the provisions of the City Tenants Protection Act, 1921, before attempting to evict the defendant from the suit property. The plaintiff had not issued a notice to the corporation of Chennai, before instituting the ejectment proceedings. Since, the defendant has instituted separate proceedings, under Section 9 of the Madras City Tenants Protection Act, 1921, the proceedings in the suit, in O.S.No.417 of 1982, cannot go on.
9. In the additional written statement filed on behalf of the defendant, it has been stated that the plaintiff temple had been taken over by the Tamil Nadu Hindu Religious and Charitable Trust and the said Trust had also appointed a Board of Trustees to administer the temple and its properties. The Commissioner of the Tamil Nadu Hindu Religious and Charitable Endowments Department must pass suitable orders, delegating the powers for the proper administration of the temple including the filing of the suit. Hence, the suit filed by the Executive Officer is not maintainable in law and therefore, it is devoid of merits. The suit filed by the plaintiff is contrary to Section 65 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The defendant had spent a sum of Rs.3,00,000/- in putting up a superstructure, with the consent of the plaintiff. As such, the suit filed by the plaintiff is liable to be dismissed.
10. In view of the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration:
1. Whether the plaintiff has issued notice to the defendant terminating the tenancy?
2. Whether the said notice is valid in law?
3. Whether the suit is maintainable, since the same is filed without following the provisions of the Tamil Nadu City Tenant Protection Act?
4. Whether the non-issue of notice to the Corporation of Chennai has affected this case?
11. One witness had been examined on behalf of the plaintiff, as P.W.1. Four documents had been marked, as Exhibits A.1 to A.4. One witness had been marked on behalf of the defendant, as D.W.1. No document had been filed on the side of the defendant.
12. Based on the evidence adduced on behalf of the plaintiff, as well as the defendant, the trial Court had found that, by way of clause 15 of the proceedings, dated 1.8.1963, issued by the Deputy Commissioner, the Tamil Nadu Hindu Religious and Charitable Endowments Department, the Executive Officer of the plaintiff temple had been authorised to sue on behalf of the plaintiff temple. Based on the said proceedings, the trial Court had rejected the claim of the defendant that the Executive Officer, who had filed the suit, in O.S.No.417 of 1982, was not the person authorised to file the suit.
13. The trial court had also found that, after the filing of the suit, by the plaintiff temple, the defendant had filed a petition, under Section 2 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and the said petition had been dismissed after a due enquiry. It had also been found that the defendant had admitted, during his cross examination, that he has been in possession of the suit property from the year, 1979, and that Exhibit A.3 agreement was for a period of one year and that it was relating to only 1,000 sq.ft. of property. From Exhibit A.3, it had been found that an extent of 1,000 sq.ft. had been leased out for a period of 11 months, to the defendant, for a monthly rental amount of Rs.42/-. Therefore, the trial court had come to the conclusion that the claim of the defendant that he was in possession of 1,000 sq.ft., under the said lease agreement, cannot be sustained.
14. The trial Court had also found that the defendant had been given permission, by the plaintiff temple, only for putting up a temporary thatched roof and not for putting up a permanent structure. Further, the defendant had not shown the accounts to substantiate his claim that he had spent nearly Rs.3,00,000/-, for putting up a permanent structure. No written permission had been obtained from the temple for putting up a structure in the suit property.
15. It had also been noted that the defendant had not made a written request to extend the lease period beyond the original period of 11 months granted by the lease agreement, marked as Exhibit A.3. In such circumstances, the trial Court had held that the defendant should hand over vacant possession of the suit property to the plaintiff temple, as claimed in the suit, in O.S.No.417 of 1982. Further, it has also been held that the defendant was not entitled to make a claim for damages for the superstructure, said to have been put up by him.
16. The trial court had also held that there was sufficient cause of action for filing of the suit, by the plaintiff, and that the defendant is not entitled to claim any right, by invoking the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, in view of the fact that the earlier petition, filed by the defendant, had already been rejected.
17. Aggrieved by the judgment and decree of the trial Court, the defendant had filed an appeal, in A.S.No.90 of 2006, on the file of Additional District Court, Fast Track No.II, Chennai.
18. Considering the rival claims made by the appellant, as well as the respondent in the said appeal, the first appellate Court had framed the following points for determination:
1. Whether the plaintiff is entitled to get recovery of possession of the suit land, as prayed for?
2. Whether the Executive Officer has been granted power to file the above suit?
3. Whether the defendant is entitled to get the value of the superstructure put up by him?
4. Whether the appeal is liable to be allowed and to what relief the appellant is entitled to get?"
19. The first appellate Court had found that the lease agreement, marked as Exhibit A.3, had expired, on 21.12.1979, and as per the said agreement, the appellant in the first appeal had to hand over the suit property to the respondent therein. The first appellate Court had also noted that the Deputy Commissioner, the Tamil Nadu Hindu Religious and Charitable Endowments Department, had passed a modified scheme, in O.A.No.93/62, dated 1.8.1963, marked as Exhibit A.4. In clause 15 of the said modified scheme, it has been stated that the Executive Officer shall be the person to sue and to be sued, on behalf of the temple. Since, the respondent temple was being administered by a scheme settled by the High Court of Madras, in C.S.No.107 of 1941, clause 15 of the modified scheme is applicable to the respondent temple. Therefore, there is no doubt that the executive officer had the power to file the suit.
20. The first appellate Court had also found that the respondent had issued a notice to the appellant, under
Section 106 of the Transfer of Property Act, 1882. The notice issued by the respondent temple had been marked as Exhibit A.2. Even though the appellant had denied the receipt of the said notice, Exhibit A.2, which is a documentary evidence, dated 4.11.1981, would prevail over the oral evidence of the appellant. In such circumstances, the first appellate Court had confirmed the findings of the trial Court and had dismissed the appeal, by its judgment and decree, dated 21.2.2007, made in A.S.No.90 of 2006.
21. Aggrieved by the judgment and decree of the first appellate Court, dated 21.2.2007, the defendant in the suit, who was the appellant in the first appeal, had filed the present second appeal, raising the following questions as substantial questions of law:
a. Whether the Courts below are correct in holding that the notice under Section 106 of the Transfer of Properties Act was issued in a proper manner?
b. Whether the Courts below are correct in accepting the notice marked as Exhibit A.2 which does not even contain the name of the respondent/plaintiff?
c. Whether the Courts below are correct in holding that the Executive Officer of the temple is entitled to file the present suit?
22. The learned counsel appearing for the appellant had submitted that the judgment and decree of the courts below were against law, weight of evidence and the probabilities of the case. The courts below had failed to appreciate the oral, as well as the documentary evidence adduced by the appellant. The courts below ought to have noted that the respondent temple had not issued a notice terminating the tenancy, under
Section 106 of the Transfer of Property Act, 1882.
23. The learned counsel appearing for the appellant had further submitted that the respondent had failed to produce the documentary evidence to show that the notice had been served on the appellant. The Courts below had failed to note that Exhibit A.2 does not carry the name of the respondent temple, as it has been typed on a plain white paper. Further, the Courts below had erred in holding that the executive officer is entitled to file the suit, in O.S.No.417 of 1982, even though this Court had held that the Executive Officer of the temple is not entitled to sustain the suit, without the permission of the Commissioner of the Tamil Nadu Hindu Religious and Charitable Endowments Department.
24. Per contra, the learned counsel appearing for the respondent had submitted that the Courts below had rightly held that the appellant was bound to hand over the vacant possession of the suit property, to the respondent temple, as the lease period had ended, on 21.12.1979.
25. The learned counsel appearing for the respondent had also submitted that the Courts below had rightly held that the appellant had received the notice of termination of the lease, marked as Exhibit A.3. It had also been found, by the both the courts below, that the Executive Officer of the respondent temple had been authorised, by appropriate proceedings, to sue and be sued on behalf of the temple. When it had been admitted by the appellant that he was in possession of the suit property and that the original agreement of lease had expired, on 21.12.1979, the Courts below had rightly come to the conclusion that he was liable to hand over the suit property to the respondent temple. Further, no substantial question of law had been raised by the appellant, for the consideration of this Court, in the present second appeal.
26. In view of the submissions of the learned counsels appearing for the petitioner, as well as the respondent, and in view of the records available, this Court is of the considered view that the appellant had not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. Both the Courts below had rightly held that the lease agreement, dated 22.12.1978, marked as Exhibit A.3 had expired on 21.12.1979.
27. It had also been found that the respondent had issued the necessary notice, which had been received by the appellant. It had also been found that the Executive Officer of the temple had been duly authorised to sue on behalf of the respondent temple, by filing the suit, in O.S.No.417 of 1982, on the file of the XII Assistant City Civil Court, Chennai. Further, no substantial question of law had been raised, by the appellant, for the consideration of this Court, in the present second appeal. In such circumstances, the present second appeal is liable to be dismissed, as it is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2007 is closed.
lan To:
1. The executive officer Arulmighu Srinivasa Perumal Koil Egmore, Chennai 600 008
2. The Additional District Court of Fast Track No.II Chennai.
3. The XII Assistant City Civil Court, Chennai