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2010 DIGILAW 2513 (MAD)

Sundar v. Arulmighu Gangadheeswarar Temple

2010-06-24

M.VENUGOPAL

body2010
Judgment :- The Appellants/Obstructors 3 and 4 have preferred this Second Appeal before this Court as against the Judgment and Decree dated 04.07.1995 in A.S.No.43 of 1995 in E.A.No.3020 of 1990 in E.P.No.234 of 1990 in O.S.No.5292 of 1973 passed by the Learned VII Additional Judge, City Civil Court, Chennai. 2. The Learned VII Additional Judge, City Civil Court, Madras while passing the Judgment in A.S.No.43 of 1995 on 04.07.1995 has among other things observed that the Appellants have marked Receipts as Documents and these receipts are not anyway strengthen their case and resultantly, dismissed the Appeal. 3. The First Appellate Court allowed C.M.P.No.593 of 1995 filed by the Appellants under Order 41 Rule 27 praying permission of the Court to receive the additional documents and the Receipts were marked as Additional Documents as Ex.R12 and Ex.R13 in the Appeal. 4. Aggrieved against the Judgment and Decree passed by the First Appellate Court in A.S. No. 43 of 1995, the Appellants have preferred the present Second Appeal before this Court. 5. At the time of admission of the second appeal, the following substantial questions of law were framed by this Court: i) Whether the subsequent events should not be taken into account by the Court before final adjudication of the matter as laid down by the Supreme Court reported in AIR 1975 S.C. Page. 1409? ii) Whether a person in occupation of a premises can be treated as an obstructor in execution proceedings after having recognised him as a tenant by collecting the rents for the premises in his occupation during pendency of the very Execution Proceedings? 6. According to the Learned counsel for the Appellants/Obstructors, the Order and Decretal order of the trial Court and Judgment and Decree of the First Appellate Court are contrary to Law, weight of evidence and probabilities of the case and as a matter of fact, both the Courts have come to a wrong conclusion that the Appellants are the Obstructors in the suit property notwithstanding the property that they are in possession and enjoyment of the suit property with their own superstructures from 1969 with the full knowledge and implied consent of the First Respondent/Temple. 7. 7. It is the further contention of the Learned counsel for the Appellants that both the Courts below have not taken the fact that the lease of the suit land to the Appellants by late Natesa Mudaliar and only on their consent, the superstructure has been put up by the Appellants in the suit land. 8. Advancing her arguments, the Learned counsel for the Appellants submits that both the Courts below have wrongly held that the Decree obtained in the suit by the First Respondent/Temple is binding on the Appellants inspite of the fact that they have not been arrayed as Parties to the suit. Also, the Learned counsel for the Appellants brings to the notice of this Court that in the order made by the Honble Supreme Court in Civil Appeal Nos. 3482 and 3483 of 1982, there is no mention that this particular portion in occupation of the Appellants has to be delivered to the First Respondent and the First Respondent /Temple has projected the Executive Petition against the Second Respondent and later, the same was withdrawn and the present Execution Petition is engineered against the Appellant in collusion with the second respondent. 9. It is the contention of the Learned counsel for the Appellants that both the Courts have come to a wrong conclusion that the Appellants are the Direct Tenants inspite of the fact that the Honble Supreme Court has not specifically mentioned about the land to be surrendered by the Legal heirs of Natesa Mudaliar and the land to be retained by him. 10. According to the Learned counsel for the Appellants, the First Respondent/Temple by its Letter dated 11.02.1991 to discuss about the suit land and accordingly in the meeting the First Respondent/Temple has agreed to receive the rent directly and wanted the Appellants to give the superstructure as gift to the temple and moreover, P.W1 before the Execution Court has clearly admitted that the rent was also fixed to pay to the Appellants and in such circumstances, the Appellants cannot be treated as Obstructors. 11. 11. The Learned counsel for the Appellants proceeding further contends that the First Appellate Court considering the additional document marked as Ex.R13 Receipt in the name of one of the partners viz., Panneerselvam in which the Appellants have treated as Direct Tenants erred in coming to the conclusion that the Appellants cannot be considered as tenants since the rental receipt is issued with endorsement "subject to the approval of the Commissioner" and once the Appellants are treated as tenants by collecting rent directly, the First Respondent/Temple cannot thereafter treat them as obstructors. 12. That apart, the Learned counsel for the Appellants contend that if the permission is not accorded by the H.R & C.E. Commissioner then the rent received from the Appellants can be returned by the first respondent and they can be treated as obstructors inspite of the fact that such a proposition is contrary to the law and natural justice. 13. Lastly, it is the contention of the Learned counsel for the Appellants that in any event the First Appellate Authority has committed an error in dismissing the appeal holding that the Appellants are obstructors even after the change of circumstances and subsequent events under which the Appellants have been treated as tenants. 14. The First Respondent/Temple has filed a suit O.S.Nos.4941 of 1973 and 5292 of 1973 against the Defendant therein viz., M.Natesa Mudaliar and tried the suits jointly and while the Learned V Assistant Judge, City Civil Court, Chennai delivering a common Judgment on 26.02.1977 has among other things held that the Natesa Mudaliar in O.S.No.4941 of 1973 as Defendant is not entitled to protection under the city Tenants Protection Act since his licence has been validly withdrawn by Ex.A3 Notice and further ordered him that he is liable to surrender possession to the temple. 15. In so far as the suit O.S.No.5292 of 1973 is concerned, the trial Court in the common Judgment has held that the Defendant Natesa Mudaliar is only a licensee and as it has been withdrawn by a notice, the Plaintiff (Temple) is entitled to possession. Resultantly, the trial Court has Decreed both the suits O.S.Nos.4941 and 5292 of 1973 with costs. 16. Resultantly, the trial Court has Decreed both the suits O.S.Nos.4941 and 5292 of 1973 with costs. 16. In the counter filed to E.A.No.3020 of 1990, the First Appellant who has filed the counter on behalf of the Second Appellant has among other things stated that both of them are running a shop Ganga Musicals in the E.P. Schedule mentioned property for the past few years and without impleading them as a party, the Petitioner/Temple has obtained a Decree against the Defendant and stated that they have got eviction order and they are obstructors and it is false to state that they are the obstructors. 17. The First Respondent/Temple has projected E.A.No.3020 of 1990 before the Executing Court viz., (X Assistant City Civil Court, Chennai) under Order 21, Rule 97 of C.P.C. praying for an issuance of order by the Court to remove the Obstructors viz., 1) Dhanasingh 2) Dhanapal 3) Sundar and Arumugham (Appellants herein) from the suit property. 18. According to the First Respondent/Temple, E.P.No.234 of 1990 has been filed for delivery of the suit property and the same was ordered by the Execution Court and when the Executive Officer of the Temple took bailiff within to execute the warrant on 19.06.1990, the persons viz., 1) Dhanasingh, 2) Dhanapal 3) Sundar and Arumugham who informed that they have been in the petition mentioned premises and requested the bailiff to note down their obstructors and also the bailiff has noted that unless police aid is given possession cannot be taken and therefore, he returned the warrant unexecuted. Unless the obstructors are removed from the suit property it is the contention of the First Respondent/Temple that the possession cannot be taken. 19. It is to be noted that as against the common Judgment passed in O.S.Nos.4941 and 5292 of 1973 dated 26.02.1977 by the Learned V Assistant Judge, City Civil Court, Chennai, the Deceased Natesa Mudaliar during his life time filed A.S.Nos.348 and 349 of 1977 which ultimately came to be dismissed on 20.03.1979 by the First Appellate Court viz., the Second Additional Judge, City Civil Court. Thereafter, the Deceased Natesa Mudaliar (during his life time) preferred S.A.No.2169 and 2170 of 1979 which were also dismissed by this Court on 27.03.1980. Thereafter, the Deceased Natesa Mudaliar (during his life time) preferred S.A.No.2169 and 2170 of 1979 which were also dismissed by this Court on 27.03.1980. Subsequently, the Civil Appeal C.A.Nos.3482 and 3483 of 1982 were filed by Natesa Mudaliar and later his death, his legal heir son (Second Respondent in the Second Appeal) has been brought on record in the aforesaid Civil Appeal before the Supreme Court. The Honble Supreme Court of India has passed an order on 03.09.1987 as follows: "The plot nearest to the office of the temple will be surrendered by the Appellants to the Devasthanam for the expansion of its office within four weeks from today. The other plot which is about 200 yds. away from the Devasthanam will be continued to be occupied by the tenants for the time being at an enhanced rent of Rs.300/- per month to be paid from 01.10.1987 by seventh day of every succeeding month. The appeal accordingly disposed of. There will be no order as to costs." 20. The contention of the Learned counsel for the Appellants is that in the common order passed by the Honble Supreme Court in Civil Appeal Nos.3482 and 3483 of 1982 dated 03.09.1987, there is no reference to the Door Number and the portion in occupation of the Appellants to be delivered to the First Respondent/Temple. However, the Learned counsel for the First Respondent/Temple submits that the words occurring in the order of the Honble Supreme Court, the other plot which is about 200 yards will be continued to be occupied by then tenants for the time being at an enhanced rent of Rs.300/- per month to be paid from 01.10.1987 by seventh day of every succeeding month refers to the Door Number 78, Gangatheeswarar Koil, Purasawalkam, Chennai-84 which is traceable to the Schedule of O.S.No.4941 of 1973 and other Door No.77, Gangatheeswarar Koil, Purasawalkam, Chennai-84 which is traceable to the schedule of O.S.No.5292 of 1973. 21. It is the case of the First Respondent/Temple that as far as the temple is concerned that the Defendant in two suits O.S.Nos.4941 and 5292 of 1973 viz., M.Natesa Mudaliar was the tenant and the temple has nothing to do with Panneerselvam or the other obstructors in the case. 22. 21. It is the case of the First Respondent/Temple that as far as the temple is concerned that the Defendant in two suits O.S.Nos.4941 and 5292 of 1973 viz., M.Natesa Mudaliar was the tenant and the temple has nothing to do with Panneerselvam or the other obstructors in the case. 22. In response, the Learned counsel for the Appellants submits that Panneerselvam is the Direct Tenant of the temple inducted from 1991 itself and the said Panneerselvam is the business partner of the obstructors in the case and inasmuch as Panneerselvam is the Direct Tenant and he happens to be a business partner of the other Appellants in the case neither Panneerselvam nor the Appellants cannot be called as obstructors in any manner whatsoever. 23. It is to be pointed out that in Appeal A.S. No. 43 of 1995 filed by the Appellants M. Dhanasingh and three others/Obstructors even though on their side the additional documents Exs. R12 and R13, Receipts were marked in CMP No. 593 of 1995, the Appellate Court came to the conclusion that those documents are not helpful to the Appellants case and ultimately dismissed the appeal. In Ex.R13, Miscellaneous Receipts the name of Panneerselvam is seen and in the said receipt, it is mentioned as rent for one portion of Rs.3,000/-. 24. However, the Learned counsel for the Appellants informs that there are three units, one to Dhanasingh, one to Dhanapal and the third one belongs to the present two Appellants and Panneerselvam. On top of Ex.R13, there is an endorsement in English "subject to the sanction of the Commissioner order". Therefore it is candidly clear that Ex. R13 Receipt though it is in the name of said Panneerselvam, it is clearly written that subject to the sanction of the Commissioners order and there is nothing to indicate that the Commissioner has accorded sanction in the matter in issue. Admittedly, Panneerselvam has not taken part in the Execution proceedings. Also, the son of the Deceased Defendant Natesa Mudaliar viz., Arumugham though shown as the second respondent he has no interest in the subject matter of the property. 25. The First Respondent/Temple has filed the Execution Petition in pursuance of the Decree obtained in O.S.No.5292 of 1973 as against the son of the deceased Natesa Mudaliar viz., the Second Respondent. Also, the son of the Deceased Defendant Natesa Mudaliar viz., Arumugham though shown as the second respondent he has no interest in the subject matter of the property. 25. The First Respondent/Temple has filed the Execution Petition in pursuance of the Decree obtained in O.S.No.5292 of 1973 as against the son of the deceased Natesa Mudaliar viz., the Second Respondent. At that time only, the First Respondent/Temple has faced the issue of obstruction by the Appellants and others. 26. One cannot ignore an important fact that an Executing Court has to execute Decree passed by the Competent Court. An Executing Court cannot go into the tenure of the Decree passed. Admittedly, the proceedings commencing from the Original Suit O.S.No.4941 and 5292 of 1973 have ended against the deceased Natesa Mudaliar and in short, the suit proceedings ended in favour of the temple. 27. At this juncture, the Learned counsel for the Appellants vehemently submits that the Temple Authorities have called the Obstructors/Occupants for the discussions in connection with the aspect of treating them as Direct Tenants. However, the Learned counsel for the First Respondent/Temple submits that it has not fructified in so far as it relates to the Appellants. 28. At this stage, the Learned counsel for the Respondents brings to the notice of this Court that in S.A. No. 1134 of 1995, one of the occupants has been recognised as Direct Tenant of the First Respondent/Temple from the year 1994 onwards. Significantly, S.A.No.1134 of 1995 was ended in a compromise. Only the dispute and the lis continues in so far as the Appellants with the Temple concerned in the present case before us. Even though Exs. R12 and R13 Receipts have been projected in A.S.No.43 of 1995 by the Appellants and notwithstanding the fact that these documents are after the disposal of the Original Suit after trial yet there is nothing to indicate to the satisfaction of this Court that the Appellants have been recognised directly as Tenants under the Temple. 29. Even though Exs. R12 and R13 Receipts have been projected in A.S.No.43 of 1995 by the Appellants and notwithstanding the fact that these documents are after the disposal of the Original Suit after trial yet there is nothing to indicate to the satisfaction of this Court that the Appellants have been recognised directly as Tenants under the Temple. 29. Though a strenuous endeavour has been made by the Learned Counsel for the Appellants to the effect that in the present second appeal, a joint Memo was sought to be filed by the parties before this Court as done in the connected case in S.A.1134 of 1995 and the same has not ended in success and the Learned counsel for the Appellants in this regard points out that the said Memo was actually sent by the Executive Officer of the Temple wherein Panneerselvam was said to be recognised as Direct Tenant and therefore, this will be a favourable circumstance in favour of the Appellants. 30. Be that as it may, at this stage, this Court pertinently points out that since a purported joint Memo in the Second Appeal has not seen the light of the day and has not crystallised... any amount of reliance being placed on the same by the Appellants will not ensure to their benefit, in the considered opinion of this Court. 31. It is to be borne in mind that subsequent events cannot be looked into by the Executing Court unless they come within the ambit of Or. 21 R.13 read with R.13 of Civil Procedure Code. 32. In the decision SILVERLINE FORUM PVT LTD. V. RAJIV TRUST & ANOTHER, 1998 3 SCC 723 at page 727, it is held that the third parties claiming interest over suit property has no locus standi to file an application. Further, in the decision SUDHIR RANJAN PAUL V. CHATER SINGH BAID, AIR 1999 CALCUTTA at pages 86, 89, it is held that the Sub Tenants application in execution for impleading has been rejected and possession delivered to the decree holder. 33. As a matter of fact, the decree obtained in a suit is binding on the sub tenant. 34. Besides the above, an Executing Court has to execute Decree passed by the trial court in true letter and spirit. 33. As a matter of fact, the decree obtained in a suit is binding on the sub tenant. 34. Besides the above, an Executing Court has to execute Decree passed by the trial court in true letter and spirit. Also, an Executing Court while ordering Delivery of Possession must also lean in favour of Decree being executed in favour of a Successful Party. However, if the Objections projected by the Objectors/Appellants are genuine, bonafide and a fair one, then the objections can be sustained by a Court of Law provided the Objectors/Occupants satisfy the judicial conscience of this Court by making out a case in their favour. 35. As far as the present case is concerned, since the Executing Court has to execute Decree in terms of the Decree passed and also because of another vital fact that it cannot traverse beyond the purview and ambit of the Decree passed and in short, on a careful consideration of the facts and circumstances of the case and also in the light of the detailed discussions mentioned supra and that too, in a cumulative fashion, this Court is of the considered view that the Appellants/Obstructors/Aliens have not made out a case in their favour and even though it is an axiomatic fact that an Appellate Court or Competent Court of Law can take note of the subsequent events after passing of the Decree and before the final adjudication of the matter, yet this Court opines that the Appellants are not the Lawful Tenants and they can only be treated as Strangers/Obstructors and admittedly, they are parties to the proceedings right from the Suit except at the stage of execution and it is also made clear that the Appellants claim as direct tenants have not been finally approved by the H.R. & C.E. Commissioner and notwithstanding the fact that the pay rent though without the rental receipt in the name of Panneerselvam, the same will not ensure to their benefit or in any way, the same will not heighten their case and in this view of the matter, this Court answers to the substantial questions of law against the Appellants and resultantly, dismissed the Second Appeal without costs. 36. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. The connected miscellaneous petition is closed.