IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 RSA.No. 250 of 2010() --------------------- AS.220/2005 of ADDL.DISTRICT COURT, THRISSUR OS.2136/2001 of III ADDL. MUNSIFF COURT,THRISSUR .................... APPELLANTS/APPELLANTS/DEFENDANTS 1,2,4,6 & 7 ---------------------------------------------------------------- 1. N.M.NARAYANAN, AGED 83 YEARS, S/O.KALLIDA KURICHI KUTTICAL THERUVIL LATE MANIKYA IYER, AMBASAMUDHRAM TALUK, THIRUNALVELI DISTRICT. 2. N.M.RAMAN, AGED 80 YEARS, S/O.LATE MANIKYA IYER, PARIYARAM, CHALAKKUDY. 3. LAKSHMY NARAYANAN, AGED 74 YEARS, S/O.LATE MANIKYA IYER, THEKKE MADOM ROAD, THRISSUR. 4. BALACHANDRAN, AGED 69 YEARS, S/O.LATE MANIKYA IYER, PAZHAYA NADAKKAVU, THRISSUR. 5. VENKITESWARAN, AGED 66 YEARS, S/O.LATE MANIKYA IYER, MACHINGAL LANE, THRISSUR. BY ADV. SRI.A.SURESAN SRI.R.SREEHARI RESPONDENT(S): RESPONDENTS/PLAINTIFFS & DEFENDANTS 3,5,8 TO 15 -------------------------------------------------------------- 1. NADUVIL MADOM, THRISSUR REP.BY PRESENT MOOPPIL SWAMYAR ASHTAMOORTHI BHARATHIKAL, KERALA DEVARNATHURYA YOGADHYANAM MEPOLIATH SWAMIYER (DIED). 2. NADUVIL MADOM, THRISSUR PRESENT MOOPPIL SWAMIYAR, NEELAKANDA BHARATHIKAL @ MARAVANCHERY THEKKEDATH SWAMIYER, AGED 72 YEARS, NADUVIL MADOM, THRISSUR. 3. KASINATHAN, AGED 73 YEARS, S/O.LATE MANIKYA IYER, C/O.N.M.NARAYANAN, RTD.PROF.A COMMENCE, NEW TAUK STREET, NUGAMBAKKAM, CHENNAI. 4. GANAPATHY, AGED 72 YEARS, S/O.LATE MANIKYA IYER, THEKKEMADOM ROAD, THRISSUR. 5. SANTHA, AGED 66 YEARS, W/O.LATE GOPALAKRISHNAN, PAZHAYANADAKKAVU, THRISSUR. 6. SREERAM, AGED 41 YEARS, S/O.LATE GOPALAKRISHNAN, PAZHAYANADAKKAVU, THRISSUR. 7. POORNIMA, AGED 39 YEARS, D/O.LATE GOPALAKRISHNAN, PAZHAYANADAKKAVU, THRISSUR. 8. SUDHA, AGED 37 YEARS, D/O.LATE GOPALAKRISHNAN, PAZHAYANADAKKAVU, THISSUR. 9. VALLIYAMMA, AGED 63 YEARS, W/O.SANKARAN, 25/1346, MARAR ROAD, THRISSUR. 10. SANGAMESWARAN, AGED 44 YEARS, S/O.SANKARAN, 25/1346, MARAR ROAD, THRISSUR. 11. PRAKASH, AGED 39 YEARS, S/O.SANKARAN, 25/1346, MARAR ROAD, THRISSUR. 12. SAMBOORNA D/O.VALLIYAMMA, MARAR ROAD, THRISSUR. ADV. SRI.N.M.MADHU FOR R2 SMT.C.DEVIKA RANI KAIMAL FOR R2 SRI.K.RAJESH SUKUMARAN FOR R6,7,8 & 10 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 250 of 2010() ORDER IN I.A NO.631/2010 DISMISSED. 07/12/2010 Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.250 OF 2010 -------------------------------- Dated this the 7th day of December 2010 JUDGMENT Some of the defendants in a suit for eviction are the appellants. Concurrent decision rendered by the courts below holding that the first respondent/plaintiff is entitled to recover the suit property, a building with arrears of rent and also the sum fixed due, towards use and occupation of the building after termination of the tenancy, is challenged in the appeal. 2. Admittedly, the building is owned by the plaintiff and it was let out under a tenancy arrangement, fixing a monthly rent of Rs.15/- per month by a registered deed in 1951, in favour of the predecessor of the defendants. Subsequently the rent was enhanced to Rs.40/- per month. Plaintiff is a Hindu religious institution, governed by the provisions covered by Travancore Cochin Hindu Religious Institutions Act 15 of 1950, hereinafter referred to as the 'Act'. The Cochin Devaswom Board constituted under the above Act, admittedly, has a supervisory regulatory control over the affairs of the institution in the creation of mortgages, charges, alienation etc. over its properties, as under Section 86 of the Act. The defendant in the suit had resisted the eviction admitting the tenancy arrangement over the building on R.S.A No.250 OF 2010 - 2 - very many grounds. But in view of the concurrent decision of the two courts below granting decree of eviction in the present Second Appeal what survives for consideration is only the challenge mooted that the plaintiffs were incompetent to seek for their eviction of the tenants from the building without the Cochin Devaswom Board also made a party in the suit for eviction. That plea was raised for the first time before the lower appellate court, and not by the pleadings of the case. The lower appellate court not impressed with the plea canvassed turned it down. Some of the defendants in the suit have preferred this appeal raising the aforesaid challenge, to impeach the correctness of the decree of eviction. 3. I heard the counsel on both sides. The learned counsel appearing for the appellants contended that though the tenancy over the building with their predecessor commenced under the plaintiffs, who are indisputably their landlords, in view of the interdiction placed under the Act, Cochin Devaswom Board alone is competent to sue for evicting them from the building. At any rate, the presence of Cochin Devaswom Board as a party to the proceedings, the suit for eviction, is essential, and since it has not been made a party, the suit is bad for nonjoinder of a necessary party and as such, the decree rendered by the courts below is unsustainable, according to the counsel. R.S.A No.250 OF 2010 - 3 - Reliance is placed on Section 86 of the Act to contend that the suit filed without Cochin Devaswom Board as a party or sanction from that Board for evicting the defendants from the building, was not maintainable. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that before the suit was laid, there was a proposal from the tenant to purchase the building and the plaintiff was amenable and prepared to transfer the building by sale subject to sanction from Cochin Devaswom Board. However, when the plaintiff applied for sanction of the Board, turning down the proposal, the Board directed the plaintiff to initiate appropriate legal action to safeguard its interest over the building, a trust property. The proceedings passed by the Board, Ext.A11 has been produced before the court, which according to the counsel, is more than sufficient to satisfy whatever requirements, if any, needed under the Act, to sue for eviction of the tenants from the building. Placing reliance on “P.M Bramadathan Namboodiripadu v Cochin Devaswom Board” (1955 KLT 516), the learned counsel further contended that the provisions under the Act, more particularly Sections 79 to 86, do not make any inroad into the rights of the religious institution by the statutory authority, Cochin Devaswom Board, but, only provide measres for regulating the functions of such R.S.A No.250 OF 2010 - 4 - institutions to the extent necessary for securing and safeguarding the properties of such institutions. The provisions referred to above are only regulatory in character, as stated in the above reported decision, is emphasised by the counsel to contend that the presence of the Cochin Devaswom Board in the suit or sanction from the Board, to sue for eviction of the tenant is not necessary. So much so, according to the counsel, the challenge now mooted, impeaching the maintainability of the suit, for the absence of Cochin Devaswom Board as a party, which was not even pleaded or raised before the trial court, is bereft of any value or merit. 4. Having regard to the submissions made by the counsel with reference to the judgments rendered by the courts below, I find, irrespective of the question whether the challenge canvassed for the first time before the lower appellate court that the suit is bad for nonjoinder of necessary parties since the statutory authority, Cochin Devaswom Board, having some control over the religious institution under the provisions of the Act referred to above, has not been made a party to the suit a larger question emerge for consideration whether it was open to the tenant to dispute or resist the eviction by the landlord disputing his competency or authority or empowerment to do so while continuing in occupation of the tenanted premises on R.S.A No.250 OF 2010 - 5 - the basis of the tenancy arrangement entered with such landlord. The tenant is estopped by virtue of the provisions covered by Section 116 of the Evidence Act from challenging the authority of the landlord who had put him in possession at the commencement of the tenancy, so long as it continues by disputing his title or authority to seek his eviction in accordance with law. May be in a circumstance where the previous landlord has lost his title by virtue of some subsequent event and the tenant is under threat of dispossession compelling him to attorn the tenancy arrangement with the new owner he may relieve himself, subject to satisfaction of circumstance so involved, from the rigours covered by Section 116 of the Evidence Act. This court, in “Mammoo v Kunhiraman” (1970 KLT 763) has held that “the estoppal covered by Section 116 of the Evidence Act would disappear when landlord's title is extinguished by events subsequent to the commencement of tenancy, one of which may be by eviction by title paramount”. In the present case, the defendants have no case that the title over the property is not with their landlord, the plaintiff, nor that they are under threat of eviction from any other person who has obtained paramount title over the building involved in the suit. When such be the case, the interdiction covered under Section 116 of the Evidence Act estop the tenant from impeaching R.S.A No.250 OF 2010 - 6 - the title of his landlord and his authority to terminate the tenancy and seek eviction. Going through the provisions covered by Section 76 to 89 of the Act as well, as rightly contended by the learned counsel for the first respondent/plaintiff and further elucidated by this court in Brahmadathan Namboodiripadu's case, referred to above, the Cochin Devaswom Board, the statutory authority under the Act, at best, has got only some regulatory role in supervising the activities of the religious institution, the plaintiff. But, such regulation in no way whittle down the authority or empowerment of the religious institution to let out its buildings, collect rent, terminate the tenancy thereof and sue for eviction of the tenants etc. Challenge against the eviction ordered against appellants by the court below concurrently on the premise that the presence of the Cochin Devaswom Board in the suit as a party thereof was essential, is unworthy of any merit. 5. Admittedly, under the tenancy arrangement till it was terminated, the rate of rent payable by the tenant was only Rs.40/- per month. In the suit, the plaintiff has claimed a sum of Rs.5,000/- per month towards use and occupation of the building by the tenant after termination of the tenancy. The trial court had raised an issue as to the quantum of the sum to be fixed towards the continuous use and occupation of the building by the tenants after termination of the R.S.A No.250 OF 2010 - 7 - tenancy. Though such an issue was raised, both sides did not lead any evidence to enable the court to fix the sum to be paid for use and occupation by the tenant till surrender after termination of the tenancy. However, the trial court, observing that the residential buildings similarly situate in the locality are capable of fetching substantial rent than what is fixed as the agreed rent over the schedule building, awarded a sum of Rs.1,500/- per month as the sum to be paid by the tenants from the date of institution of the suit till surrender of the building. No doubt, an element of conjecture will be there in fixing the value of improvements or mesne profits or compensation, for use and occupation etc. by the court. But, where there is no data assisting the court to fix such sum on surmises and conjectures alone, it is improper and inappropriate to fix exorbitant amount, much more than the agreed rent prevailing over the tenanted premise until the tenancy was terminated. So much so, I find that the sum fixed as Rs.1,500/- per month as payable towards use and occupation of the building by the tenants when the agreed rent was only Rs.40/- per month cannot be sustained. In modification of the sum fixed by the trial court, which, in fact, had been approved by the lower appellate court as well, I find, it has to be refixed as Rs.150/- per month from the date of suit till surrender of the building. R.S.A No.250 OF 2010 - 8 - Subject to the modification with respect to the rate payable for occupation as indicated above, in all other respects, the appeal fails. 6. The learned counsel for the appellants, at this stage, requested for six months time to surrender and vacate from the building. Counsel for the first respondent/ plaintiff has no objection in granting them the time requested for, but, only on furnishing of an undertaking by at least one of the appellants herein for and on behalf of all the appellants in the form of an affidavit before the trial court unconditionally agreeing to surrender and vacate from the building within the time fixed by this court and also to discharge the entire sum due as arrears of rent and for use and occupation of the building as fixed by this court. The appellants are given six months time to surrender and vacate from the building subject to furnishing an undertaking by the appellants by filing an affidavit by one of them for and on behalf of all the appellants within six weeks, unconditionally agreeing to surrender and vacate possession of the building within such time. The appellants have also to tender the entire arrears of rent and the sum due towards use and occupation of the building upto the date of filing of the affidavit, within three months from today, and subsequent sum due for occupation before the expiry of the grace period for surrender of the building, before the trial court. R.S.A No.250 OF 2010 - 9 - In the event of default by the appellants to furnish the undertaking as indicated above or to discharge the rent seem due for use and occupation as directed the first respondent/plaintiff is at liberty to proceed with the execution of the decree after the expiry of six weeks. Appeal is dismissed except to the modification made with respect to the quantum fixed towards the use and occupation of the building by the tenants, and also subject to the directions as above. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv