IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 23.11.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL A.S.No.255 of 2003 Arulmigu Kapaleeswarar Temple Mylapore, Madras – 4 represented by the Deputy Commissioner/ Executive Officer ... Appellant/Plaintiff Vs S.Valaguruswamy ... Respondent/Defendant PRAYER: Appeal filed under Section 96 of Civil Procedure Code as against the Judgement and Decree dated 26.11.2001 in O.S.No.15869 of 1996 passed by the Learned IV Additional Judge, City Civil Court, Chennai. For Appellant : Mr.N.Varadarajan For Respondent : No Appearance JUDGMENT The Appellant/Plaintiff has filed the present Appeal before this Court as against the Judgment and Decree dated 26.11.2001 in O.S.No.15869 of 1996 passed by the Learned IV Additional Judge, City Civil Court, Chennai. 2.The trial Court viz., the Learned IV Additional Judge, City Civil Court, Chennai, on an appreciation of oral and documentary evidence available on record, while passing the Judgment in O.S.No.15869 of 1996, dated 26.11.2001, has among other things observed that 'the Appellant/Plaintiff/Temple has not established that the suit Survey No.4123/3 has been let out to Vedachalam on lease and further, the extent of the property has not also been established and moreover, no document has been produced to prove that the Respondent/ Defendant is an encroacher and resultantly has come to the conclusion that the Appellant/Plaintiff/Temple is not entitled to claim the relief of recovery of possession of the suit Property from the Respondent/Defendant and dismissed the suit without costs. https://hcservices.ecourts.gov.in/hcservices/ 3.Before the trial Court in the suit filed by the Appellant/ Plaintiff in O.S.No.15869 of 1996, 1 to 6 Issues have been framed for adjudication. 4.The Respondent/Defendant also filed a Suit O.S.No.13367 of 1996 before the trial Court against the Defendant(Appellant/ Plaintiff/Temple) seeking the relief of permanent injunction. The two suits were tried together and on behalf of the Appellant/Plaintiff/ Temple witness PW1 has been examined and Ex.A.1 to A8 have been marked. On the side of the Respondent/Defendant witness DW1 has been examined and Ex.B.1 to Ex.B.18 have been marked. The trial Court delivered a Common Judgment dated 26.11.2001 in O.S.Nos.15869 and 13367 of 1996 by dismissing both the suits without costs. 5.Being dissatisfied with the dismissal of the suit, the Appellant/Plaintiff/Temple has preferred the present Appeal as an aggrieved person as against the Judgment and Decree of the trial Court dated 26.11.001 in O.S.No.15869 of 1996. 6.The points that arise for consideration is (1)Whether the Appellant/Plaintiff/Temple is entitled to the relief of recovery of possession in respect of the suit property from the Respondent/Defendant. (2)Whether the Respondent/Defendant is liable to pay a sum of Rs.500/- towards mesne profits to the Appellant/Plaintiff/Temple till date of delivery of possession. (3)Whether the Appeal filed by the Appellant/Plaintiff/Temple is to be allowed. 7.The contentions, discussions and findings on Point Nos.1 to 3: According to the Learned Counsel for the Appellant/Plaintiff/ Temple, the trial Court has committed an error in coming to the conclusion that the Appellant/Plaintiff/Temple has not proved that an extent of 1657 sq.ft. remained with it after acquisition by the government for numerous purpose and after the sale of an extent of 1822 sq.ft. to M.K.Doraiswami and further that the trial Court has not looked into Ex.A.1 Document viz., the Madras Town Mylapore Division Block No.66 extract from area Computation Field Book which will show that the total extent of the land owned by the Appellant/Plaintiff/Temple in S.No.4123 has been 3 Cawnies 12 Grounds and 1172 Sq.ft. 8.The Learned Counsel for the Appellant/Plaintiff/Temple submits that Ex.A.4 Letter, dated 23.02.1973, written by Tamil Nadu Slum Clearance Board addressed to the Appellant/Plaintiff/Temple, Ex.A.5 Proceedings, dated 01.0p2.1975, of the Appellant/Plaintiff's https://hcservices.ecourts.gov.in/hcservices/ administrative office proceedings, Ex.A.6 Letter, dated 07.10.1984, written by the Hindu Religious and Charitable Endowments' Special Officer addressed to the Appellant/Plaintiff/Temple coupled with the evidence of PW1 will establish that after acquisition by the Government for different purposes of the sale effected in favour of M.K.Doraiswami an extent of 1657 sq.ft. remained with the Appellant/Plaintiff/Temple, but on ground the extent is only 1552 sq.ft. 9.The stand of the Appellant/Plaintiff/Temple is that out of 1552 sq.ft., 955 sq.ft. has been leased out to one Vedachalam on a rent of Rs.50/- per month and the said Vedachalam has subleased an extent of 359 sq.ft. to one Rajammal and others and the remaining 596 sq.ft has been subleased by him to the respondent/Defendant. Further, the Learned Counsel for the Appellant/Plaintiff/Temple contends that the said Vedachalam surrendered the lease in his favour to the Appellant/Plaintiff and the Appellant/Plaintiff has sold 596 sq.ft subleased to one K.V.Anthappan as per Ex.A.3 document and there have been litigation between the Appellant/Plaintiff, the Respondent/Defendant and one K.V.Anthappan in regard to the extent of 596 sq.ft. and in S.A.Nos.1912 to 1914 of 1985, this Court has held that the surrender of the lease by Vedachalam would not bind by the Sublessee, i.e., the respondent/Defendant herein and therefore, the Respondent/Defendant must be held to be a lessee under K.V.Anthappan in respect of 598 Sq.ft. 10.Advancing his arguments, the Learned Counsel for the Appellant/Plaintiff/Temple submits that Ex.A.2 Judgment, dated 16.02.1984 in O.S.No.4249 of 1980 on the file of the Learned 18th Assistant Judge, City Civil Court, Chennai will establish that the surrender by Vedachalam will not bind the sublessee Rajammal and others and dismissed the suit and as per evidence one Banu is in possession of the said extent of 359 sq.ft. and paying the rent to the Appellant/Plaintiff/Temple. 11.Proceeding further, it is the contention of the Learned Counsel for the Appellant/Plaintiff/Temple that the trial Court has failed to see that 1551 sq.ft. remained with the Appellant/Plaintiff and that the Respondent/Defendant is in possession of 596 sq.ft sold to Anthappan as per Ex.A.3 as a Tenant, as per Judgment of this Court in S.A.Nos.1912 to 1914 of 1985 that one Banu in his possession of 359 sq.ft. as a tenant under the Appellant/Plaintiff and the remaining extent of 519 sq.ft. remains with the Respondent/Defendant which is admittedly the suit property. 12.The Learned Counsel for the Appellant/Plaintiff/Temple contends that the trial Court has found that the suit property viz., an extent of 596 sq.ft. is different from 596 sq.ft in possession of the Respondent/Defendant as a lessee under K.V.Anthappan and it is not the subject matter of the S.A.Nos.1912 to 1914 of 1985 and https://hcservices.ecourts.gov.in/hcservices/ further, the trial Court has held that the Respondent/Defendant has not proved that is a lessee the Appellant/Plaintiff/Temple in respect of the suit property etc. and therefore, the trial court ought to have held that the Respondent/Defendant is a trespasser in respect of the suit property. 13.Expatiating his arguments, the Learned Counsel appearing for the Appellant/Plaintiff/Temple submits that the trial Court has committed a mistake in coming to the conclusion that the present suit is not maintainable and that the remedy of the Appellant/Plaintiff/ Temple is to proceed under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. 14.The plea of the Learned Counsel for the Appellant/Plaintiff/ Temple is that the Amendment Act 39/96 has come into force on 09.12.1996 and the present suit O.S.No.15869 of 1996 has been filed on 04.11.1996 and that the said Act is not retrospective and therefore, Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is inapplicable and moreover, as per Amended Act, the jurisdiction of the Civil Court is not excluded and therefore, the present suit is maintainable. 15.Lastly, it is the submission of the Learned Counsel for the Appellant/Plaintiff/Temple that the trial Court in O.S.No.13367 of 1996 (filed by the Respondent/Defendant praying for the relief of permanent injunction against the Appellant/Plaintiff/Temple) has held that the Respondent/Defendant is not entitled to get a relief of injunction against the Appellant/Plaintiff/Temple as he is not a Tenant under the Appellant/Plaintiff and admittedly, the suit property belongs to the Appellant/Plaintiff/Temple and indeed, the subject matter of the suit property involved in O.S.No.15869 of 1996 and O.S.No.13367 of 1996 is one and the same and in view of the findings rendered by the trial Court in O.S.No.13367 of 1996 filed by the Respondent/Defendant, the finding rendered in O.S.No.15869 of 1996 filed by the Appellant/Plaintiff/Temple that it has not proved that the Respondent/Defendant as a trespasser in respect of the suit property is an incorrect one and also, the finding that the Appellant/Plaintiff/Temple has not proved that 955 sq.ft has been subleased to Vedachalam is also a wrong one and therefore, prays for allowing the Appeal in the interest of Justice. 16.PW1 (Suit Clerk of the Appellant/Plaintiff/Temple) in his evidence has deposed that Rs.No.4123/03 property is Andi Maniyam belonging to the Appellant/Plaintiff/Temple and the extent is 3 Cawnies, 12 Grounds and 1172 sq.ft. which is mentioned in the Survey Plan and for the purpose of Mandavali Bus stand in R.S.No.4123/3, 3 Cawnies, 11 Grounds and 93 sq.ft of lands has been acquired and the balance one ground and 1079 sq.ft remained with the Temple and out of this one ground and 1079 sq.ft. of land which has remained with the Appellant/Plaintiff/Temple in the year 1975. The Temple https://hcservices.ecourts.gov.in/hcservices/ Administration has sold an extent of 1822 sq.ft to one Doraisami Naicker and the balance of 1567 sq.ft remained with the Temple and when the Government conducted resurvey then they measured that only 1551 sq.ft remained and out of this 1551 sq.ft., 596 sq.ft has been given to Vedachalam for lease and in the year 1967 Vedachalam has sublet it to the Respondent/Defendant. 17.It is the further evidence of PW1 that in the year 1972 Vedachalam has surrendered the lease right to the Temple but the 596 sq.ft of land has been in enjoyment of the Respondent/ Defendant and for Rajammal and others the balance 759 sq.ft. has been given on lease and the same is in possession of M.R.Banu belongingto the group of Banu and others and the one Banu as a tenant with the Appellant/Plaintiff/Temple is enjoying an extent of 359 sq.ft and in Ex.A.2 copy of the Judgment in O.S.No.4249 of 1980 suit has been filed against Rajammal and the extent of 359 sq.ft has been obtained from the said Rajammal and that portion has been given to one Banu as a tenant and in S.A.Nos.1912 to 1914 of 1985 though the matter entered in favour of the Respondent/Defendant, the Respondent/Defendant has been directed to pay a sum of Rs.50/0 as monthly rent to Anthappan and in the aforesaid cases, the Appellant/Plaintiff/Temple is added as one of the parties and apart from an extent of 359 sq.ft given to Banu of tenancy and another 596 sq.ft sold to Anthappan, the balance extent of 596 sq.ft. remained as a vacant space and from the year 1962, the Respondent/Defendant has encroached upon the 596 sq.ft of land and is conducting the business and residing there and that the Temple administration has not given any permission to the Respondent/Defendant to encroach upon and to reside and till date for the encroached portion of 596 sq ft no rent has been paid. 18.The evidence of PW1 is also to that effect that an extent of 596 sq ft sold to Anthappan is different from the present extent of land measuring 596 sq ft and if an extent of 596 sq.ft. is let out then one will pay a rent of Rs.500/- and the suit is filed for directing the Respondent/Defendant to put the Appellant/Plaintiff in possession and also for directing the Respondent/Defendant to pay a sum of Rs.500/- to the Appellant/Plaintiff being the damages from the date of suit till the date of delivery of the possession. 19.It is the evidence of PW1 (Suit Clerk) in cross examination that when an extent of 955 sq.ft of the temple of land has been given to Vedachalam on lease a Lease Agreement has been entered into between the Appellant/Plaintiff/Temple ad the said Vedachalam and that Lease Agreement is not with the Temple and if the Lease Agreement is looked into this in Survey No.4123/3 one will come to know how much extent has been given on lease and when the land has been given to Vedachalam on lease the monthly rent has been at Rs.25/- and at that time he lease property is a vacant site and before granting the lease in favour of Vedachalam the Respondent/ https://hcservices.ecourts.gov.in/hcservices/ Defendant has been enjoying that portion and it does not know that only after knowing the Respondent/Defendant has been in enjoyment of the property, the lease has been granted in favour of Vedachalam and the Respondent/Defendant is constructed a house and residing there and also running the shop. 20.The evidence of DW1 (Respondent/Defendant) that he is a Plaintiff in O.S.No.13367 of 1996 and he has filed the suit that the Appellant/Plaintiff/Temple should not evict him from the suit property except by due to the process of law and that the temple administration has let out the suit property on lease to Vedachalam from the year 1962 and the lease property is 1192 sq.ft of land and in the year 1962 from Vedachalam he has purchased the said place as a Subtenant and that the temple administration has approved the same and has written a letter and for Vedachalam the Temple has given the lease on monthly rent of Rs.25/- and that he has given to Vedachalam a sum of Rs.50/- per month and in that place he has constructed a house and a shop for which he is paying a rent and the Corporation tax receipts are Ex.B.1 and Ex.B.2 and that Ex.B.3 is the Firewood Shop tax receipt Ex.B.4 and Ex.B.5 are Water Tax Receipts, Ex.B.6 is the Electricity Card which shows the Service Connection in his name and it is not correct to state that Vedachalam in respect of the lease amount has surrendered the same to the Temple and it is not correct for the Temple to say an extent of 596 sq ft has been sold to Anthappan. 21.DW1 goes on to add in his evidence that the Appellant/Plaintiff/ Temple has filed O.S.No.6829/1973, against Vedachalam and Anthappan and Ex.B.7 is the copy of the Plaint filed by the Appellant/Plaintiff/Temple wherein the temple has sought a relief of Mandatory injunction against him to remove and demolish any construction or structure causing obstruction to the Plaintiff or the third defendant's house lane and Ex.B.10 is the copy of the Judgment in O.S.No.6829 of 1973 dated 29.07.1996 wherein the suit has been dismissed. 22.Moreover, Ex.B.11 is the copy of the judgment in A.S.No.13 of 1977 where in the Appeal filed by the Appellant/Temple has been dismissed and 596 sq.ft. of land has been sold to Anthappan by the Temple and thereafter Anthappan filed one case against him and Anthappan has filed a case against him on the basis of Sale Deed bearing Document No.1764/74 and Anthappan has filed a case against the Temple, Vedachalam and himself for delivery of possession and in O.S.No.9450 of1979 and O.S.No.2597 of 1980 a Common Judgment Ex.B.13 has been delivered and the said suit has been allowed in part and therefore, he filed Appeal No.182 of 1984 which has been dismissed and the S.A.Nos.1912 to 1914 of 1985 have been filed and the Second Appeals has been allowed in entirety and he has been directed to pay Rs.50/- as rent and the Appeal filed by Anthappan has been dismissed and Ex.B.14 is the Judgment copy in Second Appeal and he is in lawful https://hcservices.ecourts.gov.in/hcservices/ possession and he has not encroached upon the suit property. 23.DW1 in his evidence has deposed that as per the Supreme Court Order, he has to pay a monthly rent of Rs.50/- in Reserve Bank and as per Order in S.L.P.No.14574, 14576 of 1987 is remitting the rent of Rs.50/- in Reserve Bank and in the year 1962 to 1972, he has paid the rent to Vedachalam in O.S.No.6829 of 1973, Vedachalam has stated that he has not handed over the possession to the Temple and since the lease right given to Vedachalam till date has not been cancelled he cannot be asked to hand over the possession to the Temple. 24.DW1 in his evidence has also stated that the suit property belongs to the Appellant/Plaintiff and there is no document to show that he has been in occupation of the suit property from the year 1956 and from the year 1962 there is a document to show in that regard and that he is in possession of the 1400 sq.ft. and the suit property 596 sq.ft. is also included in the said 1400 sq.ft. and the property sold to Anthappan is also included and he has produced a record to show that he has come as a Sub Tenant under Vedachalam in an extent of 1192 sq.ft. and to a suggestion t6hat he has encroached upon the suit property in the year 1967 and constructed a hut, he has stated that he has constructed a building with permission. 25.It transpires from the Judgment dated 29.07.1976 in the suit in O.S.No.6629 of 1973 filed by the Appellant/Plaintiff/Temple against the Respondent/Defendant and one V.Vedachalam and K.V.Anthappan praying for the relief of permanent injunction the trial Court has among other things observed that 'there is no evidence to show that the First Defendant (Respondent/Defendant) is a lessee of the Plaintiff (Appellant/Temple) in respect of the suit land and accordingly answered this Issue against the Respondent/Defendant by holding that he is not a lessee of the Appellant/Plaintiff and resultantly, dismissed the suit with costs of the First Defendant (Respondent/Defendant). 26.It is also seen from the Judgment in A.S.No.13 of 1977 filed by the Appellant/Plaintiff/Temple against the Respondent/Defendant and two others (filed against the Judgment and Decree dated 19.07.1976 in O.S.No.6829 of 1973) that the Appellate Court has come to the clear conclusion that 'but having regard to the evidence available especially the version of the Second Defendant (V.Vedachalam examined as PW2 it cannot all all be said that the first Respondent (Respondent/Defendant) In A.S.No.255 of 2003) had put up the Superstructure or trespass upon the land only on 17.09.1973 and that the evidence on record establishes that the First Defendant (Respondent/Defendant) is in possession of the land long prior to the alleged date in the plaint etc. and resultantly held that the Appellant/Plaintiff/Temple has come forward with the relief of permanent injunction and mandatory injunction without praying for the relief of recovery of the possession and negatived the reliefs https://hcservices.ecourts.gov.in/hcservices/ thereby dismissed the Appeal without costs. 27.Ex.B.13 is the Common Judgment dated 26.10.1983 in O.S.No.9450 of 1779 and O.S.No.2597 of 1980 (filed by K.V.Anthappan against the temple and six others including the Respondent/Defendant who figured as 4th Defendant and as First Defendant in O.S.No.2597 of 1980. The Plaintiff in O.S.No.2597 of 1980 K.V.Anthappan has filed a suit against one Valagurusamy Nadar as First Defendant and two others the First Defendant in O.S.No.2597 of 1980 is the Respondent/Defendant in A.S.No.255 of 2003 filed against O.S.No.15869 of 1996 on the file of the Learned IV Additional Judge, City Civil Court, Chennai. 28.Admittedly, the Suit O.S.No.9450 of 1979 filed by K.V.Anthappan is for recovery of possession. The O.S.No.2597 of 1980 has been filed by K.V.Anthappan against the First Defendant there in (Respondent/Defendant in A.S.No.255 of 2003) for the relief of recovery of damages for use and occupation by the First Defendant (Respondent/Defendant) that he has unauthorisedly put up three superstructures in the suit property and he is collecting the rent of Rs.25/- and Rs.100/- from D2 and D3 therein etc. In both the suit O.S.9450 of 1979 and O.S.No.2597 of 1980, the Plaintiff K.V.Anthappan has been given the decree for recovery of possession as prayed for and also for damages at Rs.50/- per month from April 1977 to March 1980 with costs. 29.At this stage, it is useful for this Court to refer to the Judgment of this Court dated 15.07.1987 in S.A.No.1912 of 1985 arises out of a suit for recovery of the possession filed by the Respondent. The Second Appeal 1913 of 1985 has been filed by the First Defendant (Respondent/Defendant in A.S.No.255 of 2003) in O.S.No.2597 of 1980 against the Plaintiff K.V.Anthappan and D2 and D3 therein. Significantly it is useful for this Court to refer to the Judgment in S.A.Nos.1912 to 1914 of 1985, dated 15.07.1987 wherein in Para 3 to 6, it is observed as follows. "3.The learned counsel for the appellant points out that there was a prior suit O.S.No.6829 of 1973 filed by the temple against the present appellant Vedachalam, the lessee of the temple and the present respondent. In that suit the temple prayed for relief of bare injunction restraining the appellant herein from putting up any construction on the suit property. That suit was resisted by the appellant herein on the ground that he was a lessee under Vedachalam, who was a lessee under the temple. Though Vedachalam, who was the defendant in that suit contended in the written statement that the property in the possession of the appellant herein was not the same as that purchased by the respondent herein, in the course of evidence given in that suit Vedachalam admitted that the appellant herein was a sub-lessee with reference to the suit property. The https://hcservices.ecourts.gov.in/hcservices/ deposition of Vedachalam is marked as Ex.B.8 in the present case, It is seen from his evidence that he got the permission of the temple for letting the property to a sub- lessee. He also deposed that he did not given possession to the temple and that the temple had not taken any proceedings for evicting him. However, he admits that he gave a letter to the temple to the effect that he had surrendered. This is relied upon by learned counsel for the respondents to prove that Vedachalam had surrendered his tenancy in favour of the temple and that he is no longer on the scene. It is also submitted by the learned counsel for the respondents that Mr.Vedachalam surrendered his tenancy and the lease took place prior to the purchase by the respondent on 26.10.1974. Even though there is no specific evidence with regard to the date of surrender, I will accept it to be so and proceed on that footing. Even if the surrender was prior to the purchase of the property by the respondent, the resulting position would be that after the surrender, the temple would not have been entitled to recover rent from the appellant herein by virtue of the provisions of Section 115 of the Transfer of property Act. Section 115 of the Transfer of Property Act reads: "The surrender, express or implied, of immovable property does not prejudice an under- lease of the property or any part thereof previously7 granted by the lessee, on terms and conditions substantially the same (Except as regard the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under lessee shall be respectively payable to and enforceable by the lessor." It is seen therefrom that when a lessee surrenders his lease the under lessee besides liable to pay the rent to the lessor as per the terms between the principal lessee and the under lessee and it is enforceable by the lessor. Consequently, the temple who was the lessor could have proceed against the appellant herein for recovery of rent or for enforcement of other terms of his contract with Vedachalam. 4.The respondent having purchased the property from the temple, stands the shoes of the temple vis-a-vis the appellant, is only remedy is to determine the tenancy of the appellant and take proceedings for eviction. On the other hand, the respondent has chosen to file the suit alleging that the appellant is a trespasser without issuing any notice of termination to the appellant. Consequently, this suit is not maintainable. If the respondent chosen to do so, he can terminate the tenancy of the appellant and take https://hcservices.ecourts.gov.in/hcservices/ proceedings for eviction. He cannot get the relief of possession in the present suit. The decrees of the Courts below directing the appellant to deliver