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2010 DIGILAW 4807 (MAD)

Arulmighu Agastheeswarasamy Koil Velipalayam by its Executive Officer v. A. S. M. Jainnulabudeen

2010-11-01

ARUNA JAGADEESAN

body2010
Judgment :- The appellant herein/plaintiff has filed the suit in OS.No.209/95 to pass a judgement and decree, directing the respondent herein/defendant to put the appellant in possession of the suit property, after removing the superstructures constructed by the defendant and directing the respondent to pay Rs.2310/-towards the arrears of paguthi and directing him to pay the future profits from the date of the plaint till the delivery of possession and for costs. 2. The case of the Plaintiff as set out in the plaint is as follows:-a. The suit property absolutely belonged to the plaintiff Temple. Originally 600 sq.ft. and 1800 sq.ft. from the entire extent of the suit property were respectively leased out in favour of one Sundaramohan and N.V.Durairaj for enjoying the same by constructing only temporary thatched huts and they transferred the same in favour of the defendant. On the request of the defendant, the Commissioner of HR&CE passed an order on 6.9.1991 in his favour granting lease for the said total extent of 2400 sq.ft. for the period from 1.7.1991 to 30.6.1994 on a monthly rent of Rs.110/-. In the said order, a condition was also imposed that the defendant should not make any permanent construction in the demised premises. The defendant, who was put in possession of the said 2400 sq.ft. of land as a lessee, subsequently annexed 4000 sq.ft. of land in the same survey number and thus, he is in possession and enjoyment of 6400 sq.ft. of land. When he was questioned, he agreed to pay rent for the same and applied for the grant of lease for 4000 sq.ft. annexed by him, but the same was under the consideration of the Commissioner of HR&CE, Madras. In view of Section 106(d) of the Transfer of Property Act, the defendant should surrender possession of the said annexed 4000 sq.ft. along with the demised land. b. The tenancy for the property is only monthly tenancy and the rent is Rs.100/-p.m. the defendant has not paid the rent from 1.11.1993 and the defendant acted against the terms of the lease and against the interest of the Temple. along with the demised land. b. The tenancy for the property is only monthly tenancy and the rent is Rs.100/-p.m. the defendant has not paid the rent from 1.11.1993 and the defendant acted against the terms of the lease and against the interest of the Temple. Hence, a notice to quit dated 2.7.1995 terminating his tenancy was issued to the defendant, for which there was no reply from him and even after the said notice, the defendant has not paid the arrears of rent and hence, he should deliver possession of the suit property by removing the superstructure put up therein by him and pay the arrears of rent of Rs.2310/-together with damages for the use and occupation from the date of the plaint. Hence, the the suit has been filed. 3. In the Written Statement filed by the Defendant, it is averred as follows:-a. The defendant is entitled to the benefit under the City Tenants Protection Act, for which he preferred an application. The suit filed by the Executive Officer without the trustees is not maintainable. Since, the trustees of the Temple gave consent to the defendant for raising permanent construction, he is entitled to construct buildings in the suit property. Further, the property was leased out for raising permanent construction. b. The allegation that the building was constructed against the terms of the lease is not correct. The leasehold right cannot be cancelled and possession could not be sought for on the ground of raising such a construction. The allegation that the tenancy is a monthly tenancy is not correct. The suit property has not been properly and correctly described and the arrears of paguthi has been wrongly mentioned. The plaintiff was aware of the pucca construction put up by the defendant by spending many more lakhs. Hence, on the principle of estoppel, the defendants is not entitled to seek removal of the said construction and to seek possession of the suit property. The defendants is ready to purchase the suit property on the market value. In such circumstances, the suit is not maintainable either in law and on facts and liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A9 were marked and the Plaintiff examined one Kumar as PW.1. On behalf of the Defendant, neither any document was marked nor any witness was examined. 5. In such circumstances, the suit is not maintainable either in law and on facts and liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A9 were marked and the Plaintiff examined one Kumar as PW.1. On behalf of the Defendant, neither any document was marked nor any witness was examined. 5. On consideration of the oral as well as the documentary evidence, the Trial Court decreed the suit with regard to the payment of arrears of rent of Rs.2310/-alone and dismissed the suit in respect of the other reliefs and the appeal filed as against the same filed by the Plaintiff was dismissed, confirming the Judgement and Decree of the Trial Court, as against which, this Second Appeal has been filed by the Plaintiff. 6. This Second Appeal has been entertained on the following substantial questions of law:-(a) Just because 4000 sq.ft. of trespassed land is added to the leased portion of 2400 sq.ft., it does not mean that Ex.A7 the notice under Section 106 of the Transfer of Property Act is not proper? (b)When it is found that the respondent is a trespasser, in the interest of justice, the lower court ought to have decreed the suit? (c)The courts below have misconstrued the meaning of Section 106 of the Transfer of Property Act whatever that is required thereunder is that the lessee must made aware of the termination of the lessee? 7. This court heard the submissions of the learned counsel on either side and also perused the judgements of the court below and the materials on record. 8. Mr.M.S.Palanisamy, the learned counsel for the appellant contended that the courts below having found that the respondent is the lessee for 2400 sq.ft. under the appellant and having accepted that during the continuance of the lease, accession of 4000 sq.ft. is made to the demised property and such an accession shall be deemed to be comprised in the lease, but merely based on the letter Ex.A6 dated 30.9.1992 written by the Deputy Commissioner, Thanjavur addressed to the Commissioner, HR&CE, recommending to consider the lease of the said extent of the property, the lower appellate court has erroneously found that since the appellant agreed to enter into a separate lease agreement with regard to the said 4000 sq.ft., it cannot be said that the said extent of 4000 sq.ft. is an annexed land to the demised premises. 9. The learned counsel for the appellant strenuously contended that just because an extent of 4000 sq.ft. of land trespassed by the respondent is added to the leased portion of 2400 sq.ft., it does not mean that Ex.A7 notice issued under Section 106 of the Transfer of Property Act is invalid and improper. It was further contended that the courts below have misconstrued the meaning of Section 106 of the Transfer of Property Act and what is required thereunder by issue of such notice is only that the lessee must be made aware of the termination of the lease. 10. The next contention put forward by the learned counsel for the appellant pointing out to Ex.P5 is that the Commissioner of HR&CE by order dated 6.9.1991 granted lease of an extent of 2400 sq.ft. in favour of the respondent for the period from 1.7.1991 to 30.6.1994 on a rent of Rs.110/-p.m. and after the expiry of the period mentioned in Ex.P5, the respondent becomes a trespasser as the lease period expired by efflux of time and hence, there was no necessity of service of notice at all under Section 106 of the Transfer of Property Act. It was submitted that it is not the case of the respondent that the lease was renewed or the term of lease was further extended before 30.6.1994. In such circumstances, the learned counsel for the appellant submitted that on the expiry of the contractual lease, the appellant/plaintiff having not received any rent or otherwise assented to the continuance of the lessee in possession, the respondent/lessee cannot be held to be a tenant holding over within the meaning of Section 116 of the Transfer of Property Act. In such view of the matter, the relationship of lessor and lessee ceased to exist and the respondent/defendant would be deemed to be a trespasser. Therefore, he would submit that it was not necessary to send any notice as contemplated under Section 106 of Transfer of Property Act. 11. On the other hand, Mr.Srinath Sridevan, the learned counsel for the respondent submitted that the notice Ex.A7 is invalid, as it is not in conformity with the provisions of Section 106 of the Transfer of Property Act. 11. On the other hand, Mr.Srinath Sridevan, the learned counsel for the respondent submitted that the notice Ex.A7 is invalid, as it is not in conformity with the provisions of Section 106 of the Transfer of Property Act. The learned counsel would submit that when the trustees of the Temple were there, without their consent, the Executive Officer has filed the suit and hence, the suit itself is not maintainable. The learned counsel contended that the Executive Officer is not the authority competent to initiate legal proceedings and therefore, the suit filed is without any authority. 12. I have considered the rival submissions made by the learned counsel on either side. The learned counsel for the appellant drew the attention of this court to the copy of the proceedings filed before the Deputy Commissioner, HR&CE, Administration Department, Thanjavur in this regard. 13. In respect of Arulmigu Agastheeswara Swamy Temple, Velipalayam, the plaintiff herein, a modified scheme has been formulated in the interest of proper and better administration of the above Temple after consulting the Trustees, the Manager and the area committee. Clause 9 of the said Scheme has given power to the Executive Officer to sue and to be sued in the name of the Temple. Therefore, the suit filed by the Temple by its Executive Officer is maintainable. 14. Section 111(a) of the Transfer of Property Act deals with determination of a lease by efflux of time. In the present case, the lease has been granted in favour of the respondent/defendant for three years from 1.7.1991 to 30.6.1994 as per the order in Ex.A5. It is the case of the appellant/plaintiff that the respondent/defendant paid the lease amount upto October 1993. There is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Transfer of Property Act. In fact, the defendant has not let in any evidence on his side. It is no doubt true that the defendant had applied for the grant of lease for 4000 sq.ft. annexed by him, but the same was under the consideration of the Commissioner of HR&CE, Madras and no order was passed granting lease to the respondent. In fact, the defendant has not let in any evidence on his side. It is no doubt true that the defendant had applied for the grant of lease for 4000 sq.ft. annexed by him, but the same was under the consideration of the Commissioner of HR&CE, Madras and no order was passed granting lease to the respondent. In the meanwhile, since the respondent started making permanent structures in the land in spite of objection, the plaintiff had filed the suit in OS.No.42/1995 before the District Munsif, Nagapattinam for permanent injunction restraining the respondent from making any permanent construction and the same is said to be pending. The plaintiff had also issued a notice in Ex.A7 dated 2.7.1995 terminating the lease by the end of July 1995. There is no material on the side of the respondent/defendant to show that the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter is governed by Section 111(a) of the Transfer of Property Act. In such circumstances, the period of lease having expired on 1.7.1994, the relationship of landlord and tenant ceased and the respondent/defendant will be deemed to be a rank trespasser. 15. In the case of Shanti Devi Vs. Amal Kumar Banerjee [AIR-1981-SC-1550], it is laid down that where a lease is for a definite term, it expires by efflux of time under Section 111(a) of the Transfer of Property Act and as such, service of notice under Section 106 of the Transfer of Property Act was not necessary for determination of lease. If the tenant had encroached upon any land and made it a part of his tenancy, he is bound to give up those lands to his landlord at the determination of his tenancy. This principle is laid down in the case of Indu Bhusan Bose Vs. Atul Chandra Biswas and others [AIR-1925-Cal-1114]. 16. In the case of Md.Ahmed Amolia and others Vs. Nirmal Chandra Roy and others [AIR-1978-Calcutta-312], it is held that both Section 116 and Section 111(a) of the Transfer of Property Act should be read together. It is for the lessee to prove that (1) the lessee remained in possession after determination of the lease and (2) the lessor or his legal representation accepted rent from them or otherwise assented to their continuing in possession. It is for the lessee to prove that (1) the lessee remained in possession after determination of the lease and (2) the lessor or his legal representation accepted rent from them or otherwise assented to their continuing in possession. It further held that mere continuing in possession after determination of the term of the lease does not indicate tenancy by holding over. 17. When the lessee had encroached on land outside his tenancy which belongs to the landlord as in this case, the lessor is entitled at the termination of the lease to recover from the lessee not only the land originally demised, but also any other land which the lessee may have added to it by encroachment from the waste and such encroachment is deemed to be made by him as an addition to his holding. 18. At this juncture, it is useful to refer to the decision of this court reported in 2002-3-CTC-483 [Amirthavalli and 7 others Vs. Visalatchi Ammal and 6 others] wherein a learned single Judge of this court has held that any accession by the lessee, be it even an encroachment on waste land or poramboke land, on the termination of the tenancy should surrender to the owners along with the property leased. It is further held that it is not open to the lessee to contend that it is not part of the demised premises. 19. In view of the decisions cited supra, I am inclined to agree with the contention of the learned counsel for the appellant that no quit notice under Section 106 of the Transfer of Property Act is really required as the lease expired by efflux of time. 20. I am of the view that the courts below erred in holding that the quit notice Ex.A7 dated 2.7.1995 is not valid and in accordance with Section 106 of the Transfer of Property Act. 21. In the case of Bhagbandas Vs. Bhagwander [AIR-1977-SC-1120], the Honourable Supreme Court held that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat (Words are to be so interpreted as to be effective rather than ineffective). 22. In the case of Bhagya Nagar Khadi Samithi Vs. 22. In the case of Bhagya Nagar Khadi Samithi Vs. S.B.Chitnis [1998-5-ALT-199] a learned single judge of the Andhra Pradesh High Court, after referring to a few judgements of the Honourable Supreme Court, held that the notice under Section 106 of the Transfer of Property Act should be construed broadly and it should not be defeated by inaccuracies either in description of the premises or name of the tenant or the date of the expiry of the notice. 23. In the present case, the appellant has issued Ex.A7 notice terminating the lease by the end of July and requiring the respondent to hand over vacant possession after removing all the structures and hand over vacant possession of 6400 sq.ft. i.e. 2400 sq.ft. + 4000 sq.ft. treating the respondent as a trespasser. The endeavour on the part of the plaintiff by issuing notice was to make the respondent/lessee aware of the termination of the lease and it should not be read in hypercritical manner. 24. For all the aforesaid reasons, I hold that the courts below erred in its view that the notice is not valid. In view of the finding arrived at by me, the suit is liable to be decreed in its entirety. The substantial questions of law are answered in favour of the appellant. 25. In the result, this Second Appeal is allowed. The judgement and decree of the courts below are set aside in so far as the disallowed portion is concerned and the suit is decreed as prayed for. However, in the circumstances of the case, there will be no order as to costs.