IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.04.2011 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH O.S.A.No.60 of 2011 and M.P.No.1 of 2011 M/s. Hindustan Petroleum Corporation Ltd., represented by its Chief Regional Manager Thalamuthu Natarajan Building Gandhi Irwin Road Egmore, Chennai – 600 008. Appellant Vs. S.M.M.Mohideen Wakf-Alal-Aulad represented by its Muthavalli S.M.S.Abdul Khader No.24, Soorappa Mudali Street Triplicane, Chennai – 600 004. Respondent Appeal filed under Order XXXVI Rule (1) of O.S. Rules read with Clause 15 of the Letters Patent Appeal against the Judgment and decree dated 22.09.2010 made in C.S.No.450 of 2003. For Appellant : M/s.O.R.Santhanakrishnan For Respondent : Mr.N.S.Varadhachari for Mr.R.Mukundan JUDGMENT V.PERIYA KARUPPIAH.,J This appeal is directed against the Judgment and decree passed by the learned single Judge in C.S.No.450 of 2003 dated 22.09.2010 https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant is the defendant in the suit and the suit was decreed against the appellant / defendant directing him to hand over the vacant possession of the suit property to the plaintiff within a period of three months and also directed to go for enquiry regarding the damages for use and occupation. 3. The brief facts of the case of the plaintiff / respondent is as follows: The plaintiff - a private Wakf, which is represented by its Muthavalli, was owning properties to an extent of 3 acres 93 cents in S.Nos.184/2, 185/2, 38 covered by its Patta No.21 in Saligramam, Kodambakkam Village, Saidapet Taluk, Chengalpattu District in Madras City. Originally, the owner of the property, namely, Mr.S.M.M.Mohideen has leased out 3.93 acres of land in favour of one Mr.B.Nagi Reddy for a period of 30 years by executing a lease deed dated 28.12.1956. The owner of the suit property, namely, Mr.S.M.M.Mohideen on 20.06.1957, by way of settlement deed, had created a Wakf in favour of his sons and daughters. Thereafter, the said original lessee Mr.B.Nagi Reddy sublet a piece of land comprised in R.S.No.184/2 for a period of ten years in favour of Standard Vacuum Oil Company Ltd., from 28.05.1957 on a monthly rent of Rs.200/-. Subsequently, the said original lessee Mr.B.Nagi Reddy has transferred the entire lease hold rights by way of sublease in favour of M/s.Sarada Binding Works, Vadapalani, Chennai. M/s.Sarada Binding Works, in turn, subleased the said property to the defendant Company for a period of ten years with an option to extend the period of lease for another term of ten years, by executing an unregistered lease deed dated 26.5.1967. The said lease came to end with effect from 1.1.1988. On the expiry of the lease period, the defendant ought to have delivered the vacant possession of the land to the plaintiff Wakf Board. However, the original lessee Mr.B.Nagi Reddy surrendered the Wakf Board land to an extent of 1.14 acres on 22.11.1989 to the plaintiff. Out of 1.14 acres of land, the remaining land i.e. 8255 sq.ft is in illegal occupation of the defendant. Hence, the plaintiff has filed the suit for eviction and delivery of vacant possession of the suit property by the defendant. 4. The appellant / defendant has filed written statement stating that the suit property was subleased to M/s. Standard Vacuum Oil Company by Mr.B.Nagi Reddy with effect from 27.5.1957 for a period of ten years on a monthly rent of Rs.200/- and it has been extended from time to time. Meanwhile, Mr.B.Nagi Reddy relinquished his rights in favour of M/s.Sarada Binding Works with effect from 1.3.1963 and advised the defendant to send the monthly rent to M/s.Sarada Binding Works. After the expiry of lease period, the leasehold rights in respect of the land in question was transferred by M/s.Sarada Binding Works in favour of Mr.B.Nagi Reddy. The defendant further stated that he is not a trespasser and https://hcservices.ecourts.gov.in/hcservices/ he is in lawful occupation and possession from 22.11.1989 and therefore, he prays for dismissal of the suit. 5. On the pleadings raised by both parties, the learned single Judge has framed the issues and had commenced the trial :- 1. Whether the defendant is liable to be evicted and the plaintiff is entitled to recover possession of the plaint schedule property? 2. Whether the plaintiff is entitled to recover the mesne profits from the defendant? 3. What other relief the parties are entitled to? 6. In the course of trial, the plaintiff was examined as PW.1 and Exs.P1 to P18 were marked on the side of the plaintiff. In the course of cross examination of PW.1, the defendant had produced Ex.D1. Apart from that, the defendant examined its Executive Sale Officer as DW.1 and has also produced Ex.D2. 7. The learned single Judge had decreed the suit against the defendant and had directed the defendant to deliver vacant possession of the suit property to the plaintiff within a period of three months and had also ordered for enquiry regarding the mesne profits. Aggrieved by the said judgment and decree passed by the learned single Judge, the present Original Side Appeal is filed to set aside the judgment and decree dated 22.09.2010 made in C.S.No.450 of 2003. 8. Heard Mr.O.R.Santhanakrishnan, learned counsel appearing for the appellant / defendant and Mr.N.S.Varadachari, learned counsel appearing for the respondent / plaintiff. 9. The learned counsel for the appellant would submit in his argument that the learned single Judge had overlooked the fact that Section 108(j)of The Transfer of Property Act permits assignment of lease and therefore the sub-lessee is not at all prohibited under law. He would further submit that since there is no specific prohibition in the lease agreement for subletting the property, it cannot be considered as an unauthorised subletting for ordering ejectment from the suit property. He would further submit in his argument that the lease agreement entered into between the plaintiff and the original lessee on 28.12.1956 permits the subletting and therefore the act of sub-lessee in further subletting the property to the appellant / defendant and the possession regarding the suit property is not illegal in the eye of law. He would further submit in his argument that the original lessee, namely, Mr.B.Nagi Reddy is perfectly at his liberty to sublease whole or portion of the demised land to any one of the parties and accordingly, he had let the property to M/s.Sarada Binding Works and from whom the appellant had taken on further sublease of the suit property and is in possession. He would further submit in his https://hcservices.ecourts.gov.in/hcservices/ argument that the respondent is a private Wakf, which is represented by its Muthavalli was owning an extent of 3 acres 93 cents in S.Nos.184/2, 185/2, 38 covered in Patta No.21 in Saligramam, Kodambakkam Village, Saidapet Taluk, Chengalpattu District. The said suit property was originally leased out by its owner Mr.S.M.M.Mohideen in favour of Mr.B.Nagi Reddy for a period of 30 years on 28.12.1956 as per Ex.P1. He would further submit that the said Mr.S.M.M.Mohideen on 20.06.1957 had created a Wakf in favour of his sons and daughters by virtue of the Wakf Deed produced as Ex.P3. Thereafter, the said original lessee Mr.B.Nagi Reddy sublet a piece of land comprised in R.S.No.184/2 for a period of ten years in favour of M/s.Standard Vacuum Oil Company Ltd., with effect from 28.05.1957 and the said lease deed is produced as Ex.P2. Subsequently, the said original lessee Mr.B.Nagi Reddy has transferred the entire lease hold rights by way of sublease in favour of M/s.Sarada Binding Works, Vadapalani, Chennai, under Ex.P4. He would also submit in his argument that since the original lessee Mr.B.Nagi Reddy has transferred his entire lease hold rights to M/s.Sarada Binding Works, the extent of the property which was in occupation of the respondent was also covered under the said sublease, it became necessary for the appellant to enter into a lease agreement with M/s.Sarada Binding Works on 20.06.1957 for a period of ten years. However, the said M/s.Sarada Binding Works had surrendered the entire extent of 3.93 acres to the said Mr.B.Nagi Reddy thereafter and the appellant had requested delivery of the lease on 05.08.1997 for further period which was refused by the said M/s.Sarada Binding Works. Mr.Nagi Reddy had surrendered 1.14 acres to the respondent / plaintiff leaving the extent of 8255 sq.ft in the hands of the defendant / appellant and thereafter the respondent demanded the appellant to surrender the land under his occupation and promptly the said request was declined by the appellant. The respondent / plaintiff was aggrieved by such declining of the appellant / defendant and therefore, he has filed the suit for delivery of possession and for damages for use and occupation. In the factual matrix, the learned single Judge ought to have directed the respondent / plaintiff to implead the original lessee Mr.B.Nagi Reddy, who is a necessary party to the suit since he has to surrender the possession of the property which is in possession of the appellant. He would further submit in his argument that the suit ought to have been determined and the direction issued to the appellant / defendant should have been directed only against the original lessee and not against the appellant. He would further submit that the privity of contract was only in between the plaintiff and original lessee and not with the appellant / defendant and therefore the suit itself is not sustainable in law. He would also submit that the suit is bad for non-joinder of necessary parties. He would also submit in his argument that the original lessee surrendered possession on and from 01.01.1988, after the expiry of 30 years period of contract of lease. The possession of the appellant in respect of the suit https://hcservices.ecourts.gov.in/hcservices/ property as sub-lessee is to be determined only in the presence of the original lessee. He would draw our attention to a judgment of Hon'ble Apex Court reported in AIR 1984 SC 1399 in between "Shyam Babu ..vs.. District Judge, MOradabad and others". He would also rely upon a judgment of the Punjab and Haryana High Court reported in AIR 1980 Punjab & Haryana 319 in between "Surjit Singh ..Vs.. Rattan Lal" for the same proposition. He would also cite yet another judgment of the Hon'ble Apex Court reported in AIR 2002 SC 797 in between "Raghuram Rao ..vs.. Eric P.Mathias" for the same proposition. He would further submit in his argument that the lease was not promptly determined and the necessary party is not before the Court and therefore the decree for delivery of possession is not at all sustainable. He would further submit in his argument that the appellant is under the obligation to surrender possession only to the original lessee and in turn the original lessee has handed over vacant possession of the property to the land owner and the original lessee has not been impleaded in the suit and therefore, the direction against the defendant / appellant is not at all sustainable. He would further request the Court to interfere in the judgment and decree passed by the learned single Judge and to dismiss the suit. 10. The learned counsel for the respondent / plaintiff would submit in his argument that the suit property is belonging to the respondent / plaintiff and it was originally leased out to Mr.B.Nagi Reddy for 30 years on 28.12.1956 and thereafter a Wakf was created and the Wakf became the owner of the property and subsequently, the said Mr.B.Nagi Reddy had subleased the property to one M/s.Sarada Binding Works and the appellant / defendant had entered into a lease agreement with the M/s.Sarada Binding Works for ten years through Ex.P5 and thereafter the appellant continued to be in possession and enjoyment of the suit property as sub-lessee of the sub-tenant, namely, M/s.Sarada Binding Works and was continuing in possession and enjoyment of the suit property. He would further submit that the lease period in between the plaintiff and the said Mr.B.Nagi Reddy and in turn in favour of M/s.Sarada Binding Works came to an end by 31.12.1987 and the request of the appellant / defendant for extension of lease period through its letter dated 05.01.1987 (Ex.P6) was refused by M/s.Sarada Binding Works and the subsequent request made by the appellant / defendant was also refused by the M/s.Sarada Binding Works through its letter dated 30.12.1987 and in the said letter Ex.P9, the said M/s.Sarada Binding Works had demanded the surrendering of possession to the respondent by the appellant. However, the appellant / defendant did not deliver possession. Therefore M/s.Sarada Binding Works asked the appellant to deliver possession through its letter Ex.P10. He would further submit that the original lessee Mr.B.Nagi Reddy surrendered the entire lease to the respondent / plaintiff and the appellant had negotiated with the respondent for entering a fresh lease and there was no conclusion in between the parties and the https://hcservices.ecourts.gov.in/hcservices/ appellant / defendant had not paid any rent from 1988 onwards and therefore the respondent had issued a notice through Ex.P14 demanding possession and it was replied by the appellant through Ex.P15 and Ex.P16. He would further submit that even after the said exchange of notices, the appellant / defendant did not surrender vacant possession of the suit property. Therefore, the respondent issued another notice Ex.P17 and the appellant had replied in Ex.P18 and the appellant has no intention to surrender possession. He would also submit that there is no other option for the respondent except to file the suit for recovery of possession and damages and accordingly it has been filed. He would also submit that the possession of the appellant / defendant would be nothing but a trespasser since the original lessee has surrendered the lease to the respondent / plaintiff and the lease agreement in between the plaintiff and the original lessee Mr.B.Nagi Reddy was over by efflux of time till 1987 and the sub-lessee namely M/s.Sarada Binding Works was also not having any right over the sub-lease obtained from the original lessee and in turn the appellant / defendant cannot exercise any right as sub-lessee of the said M/s.Sarada Binding Works since there is no jural relationship in between the respondent / plaintiff and the original lessee Mr.B.Nagi Reddy. He would draw the attention of the Court that the sub-lessee M/s.Sarada Binding Works was also not inclined to extend the lease since it has no right to sub-lease after the extinguishment of the original sub- lease obtained under Mr.B.Nagi Reddy. Therefore, he would submit in his argument that the appellant / defendant is in a status of trespasser and there is no necessity for issuing a notice terminating the tenancy or sub-tenancy he had. He would further submit that the argument advanced by the learned counsel for the appellant that the suit is bad for non-joinder of necessary parties cannot be sustained in view of the fact that the original lessee or his sub-lessee was not impleaded as party to the suit since there is no existence of lease in between the plaintiff and the said Mr.B.Nagi Reddy and no existence of sub-lease in between the said Mr.B.Nagi Reddy and M/s.Sarada Binding Works. In addition to, he would submit that the appellant / defendant has not raised the plea of non-joinder in his written statement and it is a bar for the appellant / defendant to raise the same in the Appellate Forum under Order 1 Rule 13 CPC. He would draw the attention of the Court that the delay in raising the plea, certainly disentitled the defendant even otherwise he is entitled to raise so. He would further submit in his argument that there is no privity of contract in between the plaintiff and the defendant and therefore the appellant / defendant is liable to surrender possession of the suit property to the plaintiff, who is none other than the owner of the said property. He would also submit that during the pendency of the suit, the appellant / defendant had paid a sum of Rs.17,50,000/- towards the damages sought for in the suit as per the orders passed by the learned single Judge in A.Nos.2843 and 2844 of 2003 and therefore the learned single Judge has ordered for the enquiry regarding the https://hcservices.ecourts.gov.in/hcservices/ past and future mesne profits in order to appropriate the said amount from the quantum likely to be arrived at by such an enquiry. He would also submit that the judgment of the Hon'ble Apex Court is not applicable to the facts of the case, since the lease dealt with in the said judgment is in respect of perpetual lease. He would further submit that the lease in this case is not in existence on efflux of time. Therefore, he would request the court that the judgment and decree passed by the learned single Judge need not be interfered and set aside. 11. We have given anxious thoughts to the arguments advanced on either side. 12. On a careful perusal of the pleadings, evidence and the judgment of the learned single Judge we could see that the following points emerged for consideration:- 1) Whether the appellant / defendant is liable to surrender possession of the suit property to the respondent / plaintiff ? 2) Whether the appellant / defendant can raise the plea of non-joinder of proper and necessary parties at this stage ? 3) Whether the enquiry ordered by the learned single Judge regarding the ascertainment of damages for use and occupation is liable to be interfered ? 4) To what relief the respondent / plaintiff is entitled for ? 13. We feel it better to apply the arguments advanced by the learned counsel appearing for either side on point wise. 14. Point Nos. 1 & 2: The suit property is a wakf property and the respondent is the owner. The wakf is a private wakf called Wakf – Alal -Aulad. Indisputable facts are that the property was part and parcel of 3 acres and 93 cents in S.Nos.184/2, 185/2, 38 covered in Patta No.21 in Saligramam, Kodambakkam Village, Saidapet Taluk, Chengalpattu District and was leased out by Mr.S.M.M.Mohideen, the owner of the suit property in favour of Mr.B.Nagi Reddy for a period of 30 years through Ex.P1 dated 28.12.1956. Subsequently, the said owner of the property Mr.S.M.M.Mohideen had created a private Wakf on 20.06.1957 in favour of his sons and daughters. The original lessee Mr.B.Nagi Reddy sublet a piece of land for ten years in favour of M/s.Standard Vacuum Oil Company Limited with effect from 28.05.1957. Thereafter, the said Mr.B.Nagi Reddy, original lessee, transferred the entire lease hold rights in respect of 3.93 acres in favour of one M/s.Sarada Binding Works, Vadapalani, Chennai, through Ex.P4. The appellant / defendant who is the successor of M/s.Standard Vacuum Oil Company Limited whose lease was over by 26.05.1967 entered into https://hcservices.ecourts.gov.in/hcservices/ a sub-lease with M/s.Sarada Binding Works for ten years with an option to extend for another ten years in respect of the suit property through Ex.P5. After the expiry of the original lease had by the plaintiff and Mr.B.Nagi Reddy, the said Mr.B.Nagi Reddy had surrendered the lease in favour of the plaintiff and therefore the request of the appellant / defendant that the sub-lessee M/s.Sarada Binding Works, to renew the lease for further period was refused by M/s.Sarada Binding Works. Furthermore, the said sub-lessee M/s.Sarada Binding Works had issued a letter to the appellant / defendant to surrender possession to the plaintiff. However, the said request was declined by the appellant / defendant. 15. In the backdrop of the aforesaid admitted case, when we approach the evidence, we could see that the original lease entered into between the plaintiff and Mr.B.Nagi Reddy was for a period of twenty years from 05.11.1956 with an option to extend the lease at discretion for further period of ten years at the end of 20 years. Accordingly, the said lease was extended for furthermore 10 years ending with 31.12.1987. That could be evidenced from the letter correspondence had in between the sub-lessee of Mr.B.Nagi Reddy with the appellant / defendant. Therefore, we could see that the tenancy in respect of the entire property comprising 3.93 acres of land which includes the suit property also would be over by the year 1987 ending with 31.12.1987. This is purely on efflux of time. When the lease created in between the plaintiff and the said original lessee Mr.B.Nagi Reddy lapsed by 31.12.1987, the sub lease made by the said Mr.B.Nagi Reddy in favour of M/s.Sarada Binding Works and the further sub-lease in respect of the suit property entered into between M/s.Sarada Binding Works and the appellant / defendant would also come to an end by 31.12.1987. The requisition letter sent by the appellant for renewal of lease therefore could not be honoured by the said M/s.Sarada Binding Works and therefore the said sub-lessee M/s.Sarada Binding Works refused the renewal of lease in favour of the appellant / defendant as in Ex.P9. When the facts are such, the said M/s.Sarada Binding Works had issued a letter in Ex.P10 to deliver vacant possession without further delay on 11.02.1988. Therefore, it is pertinent to note that there is no jural relationship in between the plaintiff and the defendant either by way of landlord and sub-tenant of the sub-tenant of the original tenant. The status would be that the defendant is a third person, in other words, a trespasser to the suit property. No doubt, it is true that the plaintiff has issued a notice to the defendant in Ex.P14 and Ex.P17. However, the defendant had replied through its counsel in Ex.P15 and Ex.P16 for the notice in Ex.P14 and yet another reply through Ex.P18 to the notice in Ex.P17. The said replies made by the defendant would go to show that it is not intending to hand over vacant possession of the suit property. 16. The defendant had produced Ex.D1, a letter said to have been issued by the plaintiff towards the contract of lease in https://hcservices.ecourts.gov.in/hcservices/ respect of the suit property. It is dated 24.11.1997 after a long period from the date of lapse of the original lease in the year 1987. If really, any lease has been entered into as per the letter Ex.D1, we could understand that there would be a jural relationship in between the plaintiff and the defendant. But the said offer proposed by the plaintiff was not accepted nor anything has been done in accordance with the proposition made in Ex.D1. Per contra, the defendant had replied through the reply notices in Exs.P15, P16 and P18 that he is not at all liable to vacate the suit property as per the request of the plaintiff. In the said circumstances, the significance for the production of Ex.D1 also faded away. Nextly, when we approach the defence raised at the appellate stage regarding the non-joinder of necessary parties, we could see that the original lessee Mr.B.Nagi Reddy was not examined, but his affidavit was only filed in support of the case of the plaintiff. It is true that the said Mr.B.Nagi Reddy was not impleaded as one of the defendants. The right of the defendant as sub-lessee is certainly flown from the original lease hold obtained from the said Mr.B.Nagi Reddy from the plaintiff. However, the said lease hold right had become closed by efflux of time as entered into between them in Ex.P1 by the end of 1987. The fact that Mr.B.Nagi Reddy had surrendered the lease and has not claimed any lease hold right in the entire property was not disputed. We have already found that the status of the defendant in the suit property is not as a sub-lessee, but only as a trespasser. Since there is no existence of any lease, there is no necessity for impleadment of the original lessee for the action to be taken against the erstwhile sub-lessee, the defendant. 17. Mr.N.S.Varadhachari, learned counsel appearing for the respondent had also submitted that the lease being over by efflux of time, it cannot be considered as perpetual lease as discussed in the judgment of the Hon'ble Apex Court reported in AIR 2002