IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.08.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTIC M.VENUGOPAL O.S.A.NOS.192 AND 193 OF 2006 AND C.M.P.NOS.7997 AND 1998 OF 2006 1.M/s.Saiva Siddantha Works Publishing Society Tinnelvely Ltd., rep. by its Managing Director, No.79,80, Broadway, Chennai-1. 2.A.Gunasekaran .. Appellants in both the appeals Vs. 1.Hajee A.M.Farook. 2.Hajee K.E.M.Segu Mohammed 3.Hajee M.A.C. Basheer Ali 4.A.Salahudeen (Trustees of M.K.Periyathambi Maracair Trust Estate, 83,Sembudoss Street, Chennai-600 001) 5.The Administrator General & Official Trustee of Tamilnadu, High Court Campus, Chennai-600 104 .. Respondents in O.S.A.No.192 of 2006 The Official Trustee of Tamilnadu, High Court Campus, Chennai-104 .. Respondent in O.S.A.No.193 of 2006 These O.S.As. have been preferred under Order XXXVI Rule XI of Original Side read with Clause 15 of Letters Patent against the order and decree of the learned Single Judge made in Application Nos.2230 of 2002 and 4861 of 2001 in C.S.No.314 of 1930, dated 24.1.2003. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.C.T.Mohan for Mr.R.Balaji For Respondents: Mr.S.V.Jayaraman, SC for Mr.M.M.Abdul Razak for RR1 to 4 Mr.R.M.Sundar for R-5 in OSA No.192 of 2006 and for respondent in OSA No.193/2006 COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely O.S.A.Nos.192 and 193 of 2006, which challenge the order of the learned Single Judge of this Court made in two applications, namely application Nos.2230 of 2002 and 4861 of 2001. 2.Application No.4861 of 2001 has been brought forth by the Official Trustee of Tamil Nadu for a direction to the respondents to vacate and deliver possession of the premises at No.79-80, Broadway, Chennai-1, pursuant to the legal notice issued by the applicant dated 2.3.2001, while Application No.2230 of 2002 has been brought forth by the respondents 1 to 4 in OSA No.192 of 2006 for a direction to the first respondent therein to pay enhanced rent to be fixed by the Court till first and second respondents vacate and deliver vacant possession to the A.G. & O.T., the third respondent therein. While filing these two applications, the Official Trustee of Tamil Nadu has filed a report, stating that the estate of M.K.Periyathambi Maracair was vested with the Official Trustee of Tamilnadu as per the settlement deed executed by him on 25.04.1919 and as per the Scheme Decree in C.S.No.314/1930, dated 3.5.1939. The property in question was actually leased out to M/s.South India Saiva Siddantha Works Publishing Society Tinnelvely ltd. While the matter stood thus, the property was unauthorisedly sublet to the second respondent one Gunasekaran in violation of the terms of the agreement. Further, the said South India Saiva Siddantha Works Publising Society Tinnelvely Ltd., representing by the Managing Director, has not obtained any consent or permission from the Official Trustee of Tamilnadu. The tenant remains silent regarding the subletting. The tenant was paying a sum of Rs.1500/- per month as rent from 1.10.1982 till date and inspite of repeated demands, the tenant has not chosen to come forward for fixation of a reasonable rent. Apart from that, Gunasekaran, who was occupying the tenancy premises, was an unlawful tenant and the premises has been sublet unauthorisedly without prior permission of the Official Trustee. The lawyer's notice was issued by the trustee on 2.3.2001 determining the tenancy by the end of 31st https://hcservices.ecourts.gov.in/hcservices/ March, 2001 and calling upon them to vacate and deliver possession of the property. Despite the fact that both the respondents acknowledged the notice, they have not chosen to vacate and deliver the vacant possession and nor have they chosen to pay enhanced rent. Under these circumstances, these applications were brought forth one for delivery of possession and the other for enhancement of rent. 3.The applications were countered by the respondents, denying all the allegations, inter-alia, stating that the property is the Wakf property as defined under the Act and therefore, the applications are not maintainable and the power is vested with the Wakf Board and apart from that, the subtenancy, as put forth by the applicants, is only an imaginary. The property is in dilapidated condition and further, rentals have been paid by the first respondent regularly and the second respondent has nothing to do and under these circumstances, the applications were to be dismissed. 4.The learned Single Judge has passed the impugned order, whereby he directed the hand over of possession of the property within a period of 18 months and further, the first respondent was directed to pay monthly rental of Rs.15,000/- during the said period and positively, the first respondent shall vacate the premises by the 30th day of June, 2004. Aggrieved over the same, the appellants have brought forth these appeals. 5.The questions that would arise for consideration are as follows: a)Whether a direction, as required by the Official Trustee, for delivery of possession has got to be ordered? b)Whether it is a fit case where enhancement of rent has got to be directed to be paid by the first respondent in the applications and if so what would be the reasonable rent? 6.Advancing arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the learned Single Judge has not made any enquiry at all; that the application filed by the Official Trustee depends upon the question whether there was subtenancy; that there was neither enquiry at all nor any finding that there was subtenancy, but the learned Single Judge has ordered delivery of possession; that the building is in dilapidated condition and has got to be pulled down; that in the said building, the first appellant has been occupying; that the original rental was Rs.1500/- per month, which has been paid all along the period and there was no default; that now fixing the rental of Rs.15,000/- per month was thoroughly unreasonable considering the nature of the building; and that further the subtenancy was not at all proved. 7.Added further the learned counsel that admittedly, the property belonged to M.K.Periyathambi Maracair, who actually made a settlement in the year 1919; that there was actually a scheme decree also; that the property actually comes under the definition of Wakf Act, which would include the wakf property; that if to be so, the applications should have been dismissed at the threshold; that in the https://hcservices.ecourts.gov.in/hcservices/ instant case, the Wakf was not shown as a party; that a perusal of the order would indicate that all the questions were never raised or decided and hence the order has got to be set aside. 8.The Court heard the learned Senior counsel for the respondents and also the counsel for Official Trustee on the above contentions. 9.The Court has paid its anxious consideration on the submissions made. It is not in controversy that the property originally belonged to M.K.Periyathambi Maracair, who also executed the settlement deed on 25.4.1919. There was a scheme decree in C.S.No.314 of 1930, dated 3.5.1939. It is also not in controversy that the property was originally let out to M/s.South India Saiva Siddantha Works Publishing Society Tinnelvely Ltd. from 01.10.1982. The first contention that the property is the Wakf property and hence the matter should have been brought before the Wakf Board and therefore, the applications were not maintainable, though attractive at the first instance, does not stand the scrutiny of law for the simple reason that the property actually is vested with the Official Trustee all along in the past and the same was under the administration of the Official Trustee. The property was actually leased out to M/s.South India Saiva Siddantha Works Publishing Society, the first respondent in the applications, on 01.10.1982. It is also not in controversy that rentals have been paid by the first respondent therein to the Official Trustee all along the period. Now, the contention that the property is the Wakf property and hence the Official Trustee must approach the Wakf Board is nothing but the ruse invented for the purpose of the case and hence that contention has got to be rejected. Once the tenancy has commenced in the year 1982 between the Official Trustee as Administrator and M/s.Saiva Siddantha Works Publishing society, now at this juncture, the respondents therein are estopped from questioning the same and hence the first contention has got to be rejected. 10.So far as the second contention is concerned, it is an admitted position that originally, the property was let out to the first respondent/the first appellant herein. Now, the Official Trustee has filed a report that the property has been sublet to the second respondent/second appellant. When the appeals were taken up for consideration, a query was made by the Court and that the second respondent/second appellant would submit that the second appellant was actually doing the job of the first appellant. It is pertinent to point out that nowhere in the course of the counter filed before the learned Single Judge, not even a whisper in this regard was made. Hence it is only an invention at the time of argument before the appellate forum. From the report, it would be quite clear that the second appellant has been using the property. It remains to be stated that in the counter filed before the Appellate forum, it has been categorically stated that the first respondent in the applications originally lost interest in the matter. Thus, it would be quite clear that even after the first respondent has gone out of the property, the second respondent, who is the second appellant herein, the sub tenant, continues to be there. It is not the case of the second https://hcservices.ecourts.gov.in/hcservices/ appellant that he obtained any permission or consent from the administrator, the Official Trustee. Under these circumstances, the possession of the second respondent is nothing but trespasser and hence the learned Single Judge has considered the same and has ordered eviction and hence it has got to be sustained. 11.The learned Single Judge has ordered Rs.15,000/- as rental per month during the 18 months period. It is pertinent to point out that admittedly, the property was in dilapidated condition. It is true, the total area of the property, namely Door Nos.79 and 80, is more than 12000 Sq. ft., which is situated in the main commercial area in the city of Madras. Taking into consideration the same, the Court is of the considered opinion that reasonable rental amount would be fixed for the said period. Accordingly, monthly rental of Rs.10,000/- (Rupees ten thousand only) is fixed for the said period, which the first respondent is directed to pay to the Official Trustee. Accordingly, the order of the learned Single Judge is sustained with the above modification in the rental amount. Two months' time is granted to the Society to vacate and deliver the possession and if not delivered, execution proceedings is to be carried out. Accordingly, both the appeals are dismissed. No costs. Consequently, the connected CMPs are also dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1) The Sub Assistant Registrar Original side, High Court, Madras. 2. The Administrator General & Official Trustee of Tamilnadu, High Court Campus, Chennai-600 104 +2 ccs To Mr.M.M.Abdul Razak , Advocate, SR.42797 +4 ccs To Mr.R.Balaji, Advocate, SR.42442 & 42441 +1 cc To Mr.R.M.Sundar , Advocate, SR.42568 O.S.A.NOS.192 & 193/2006 rl [co] gkg/12.8 https://hcservices.ecourts.gov.in/hcservices/