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2017 DIGILAW 2834 (MAD)

Subramanian v. Arulmighu Renganatha Swamy Temple

2017-08-23

PUSHPA SATHYANARAYANA

body2017
JUDGMENT : The plaintiff who has lost before the Courts below, has preferred the above appeal. 2. The suit was filed for permanent injunction restraining the defendant from interfering with the plaintiff's possession and enjoyment of the suit property either by auctioning the property or in any other manner except by due process of law. 3. It is averred in the plaint that the suit property originally belonged to Arulmighu Idol of Udayavar, which is an independent shrine within the precincts of the Arulmighu Renganatha Swamy Temple. The Udayavar Shrine was originally managed by a hereditary trustee. During his life time, it was let out as a vacant site to the plaintiff and through his efforts and labour, the plaintiff claims to have raised coconut trees in a portion of the suit property and has been doing cultivation in the other portion. The plaintiff claims to be in possession of the suit property for over 25 years as a cultivating tenant. The said trustee of the Udayavar Shrine was unable to administer the Shrine and its properties. Hence, he handed over the possession and administration to the defendant-Temple. After handing over the Temple, the defendant had entered into a lease agreement with the plaintiff. It is also claimed by the plaintiff that the property was leased out to him for the purpose of cultivation and that the rights and liabilities would be governed by the provisions of the Transfer of Property Act, pertaining to lease of immovable property. The plaintiff claims that he had been regular in payment of lease rent and the defendant has also issued proper receipts for the same. While so, on 14.06.2007, the defendant issued a pamphlet for public auction of the usufructs of the trees in the suit property. As the plaintiff is in possession and enjoyment of the suit property as a cultivating tenant, the defendant has got no right to auction the usufructs of the trees in the suit property. 4. Denying the facts leading to the cause of action for filing of the suit, the defendant had filed written statement disputing the rights of the plaintiff. The defendant has admitted that the hereditary trustee had handed over the management and administration of the suit property to the defendant, but denied the lease agreement dated 09.04.2003 as claimed by the plaintiff. Denying the facts leading to the cause of action for filing of the suit, the defendant had filed written statement disputing the rights of the plaintiff. The defendant has admitted that the hereditary trustee had handed over the management and administration of the suit property to the defendant, but denied the lease agreement dated 09.04.2003 as claimed by the plaintiff. It is the specific case of the defendant that the suit property is a coconut thope and the plaintiff is only a licensee and no interest in the immovable property be transferred in the name of the plaintiff. The plaintiff was only permitted to enjoy the usufructs of the coconut trees and no right to enjoy the land was given to him. The defendant being a public religious institution, is exempted from the provisions of Act 25 of 1955 (The Tamil Nadu Cultivating Tenants Protection Act). The license period for the suit property ended in June 2007. Therefore, the defendant has got the right to auction the usufructs of the trees in the suit property and prayed for dismissal of the suit. 5. Based on the above pleadings, the trial court had framed appropriate issues. In order to prove the case, on the side of the plaintiff, 2 witnesses were examined as P.W.1 and P.W.2 and as many as 10 documents were exhibited as Ex.A1 to Ex.A.10. On the side of the defendant, one witness was examined as D.W.1 and no documents were marked on the side of the defendant. 6. The Courts below have concurrently held that the plaintiff is not entitled to the relief asked for. Though originally only notice was issued to the respondent at the time of admission, the substantial questions of law that arise for consideration in the appeal are as follows: 1. Whether the plaintiff is entitled to protection under Tamil Nadu Cultivating Tenants Protection Act, 1955 by a conjoint reading of the Sections 51 and 62 of the Tamil Nadu Public Trusts Act, 1961? 2. Whether the plaintiff is entitled to the relief of injunction as sought for? 7. This Court heard the submissions of the learned counsel for both the parties and perused the material records placed. 8. 2. Whether the plaintiff is entitled to the relief of injunction as sought for? 7. This Court heard the submissions of the learned counsel for both the parties and perused the material records placed. 8. Learned counsel appearing for the appellant strenuously contended that the correspondence between the plaintiff and the defendant would refer to the arrangement between the plaintiff and the defendant as that of a licensor and licensee. It is also contended by the learned counsel for the appellant/plaintiff that as per Ex.A-10, Lease Deed dated 09.04.1993, the plaintiff was put in possession of the property and the rights and liabilities of the parties would be governed by the provisions of the Transfer of Property Act on lease of immovable property. Attention is also drawn to the clause that the plaintiff is barred from sub-letting the suit property. To substantiate that, it was submitted that unless the plaintiff is a licensee in possession of the property, such clause would not have been incorporated. It is also pointed out that though major portion of the suit property comprises of coconut trees, the same could be only granted as a lease and not as a license. Hence, there is no statutory bar for granting lease to the immovable property which contains coconut trees. 9. Placing reliance on Nachayee Ammal and others vs. Sri Venugopalakrishnaswamy Temple (2003) 2 MLJ 212 , the learned counsel for the appellant/plaintiff contended that even if the lease was granted only for plucking or gathering the coconuts, the lessee is entitled for protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955. 10. It is further contended that the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1955 would be applicable to the cultivating tenants under a public trust, provided the land is an orchard or a thope, in light of the Section 51(iv) of the Tamil Nadu Public Trusts Act, which states that the provisions of the Act shall not be applicable to Orchards, thopes or arecanut gardens. It is the contention of the learned counsel for the appellant that all provisions of the Tamil Nadu Public Trust Act, 1961 would not be applicable in the case of thope, including Section 62 which states that provisions of Tamil Nadu Cultivating Tenants Protection Act, 1955 would stand repealed insofar as a cultivating tenant of lands under a public trust. 11. 11. On the contrary, the learned counsel appearing for the respondent/defendant contended that either the then trustee or by this defendant, the plaintiff was allowed to enjoy only the usufructs of the coconut trees and no right to enjoy the lands was given to him. The license amount alone has been collected from the plaintiff. As the defendant is a public religious institution, it is exempted from the provisions of Act 25 of 1955. 12. This Court has perused Ex.A-10 which is drafted as "XXXX". In the said document, the suit property has been described as "thope" and the period has been specifically stated as three years. Even in the receipts produced by the plaintiff under Ex.A5 and Ex.A6, it has been specifically stated that the amount collected is only for the usufructs available to the plaintiff from the coconut trees. Even in Ex.A6, the suit property is only described as "thope". In Ex-A9 receipt also, the rent has been collected only for "XXXX". From the above documents as produced by the plaintiff, it is clear that the intention of the parties was only for plucking of the coconuts, which could only be a licence and not a lease. 13. As per Ex.A-1, lease is admittedly for three years. When the lease is expressly limited for a period of three years, it is the duty of the lessee to surrender the possession and it is not open to the appellant/plaintiff to contend that he is entitled to be in possession and pray for injunction. When admittedly, the respondent is the owner of the property, the appellant cannot get an order of injunction, unless he proved his right to be in possession. Even if he is in possession, it should be a lawful possession or else he is not entitled to get injunction as against the true owner. Admittedly, when the lease has come to an end, the plaintiff ought to have surrendered the possession, but, without doing so, he is seeking the relief of injunction, which is not maintainable, particularly when the lessee has no right to be in possession. 14. Admittedly, when the lease has come to an end, the plaintiff ought to have surrendered the possession, but, without doing so, he is seeking the relief of injunction, which is not maintainable, particularly when the lessee has no right to be in possession. 14. So far as the applicability of the Public Trust Act is concerned, the argument of the appellant that even if a license is granted to pluck the coconut, it would be a lease of immovable property and the lessee is entitled to the protection of the Tamil Nadu Cultivating Tenants Protection Act, 1955, is countenanced by the learned counsel for the respondent by placing reliance on the decision of a division bench of this Court reported in 1980 (2) MLJ 247 , A. Arunachalam Pillai vs. Sri Mayuranathaswamy Temple, wherein, in para 8, it has been observed as follows: "8. On our own analysis of the relevant provisions of the Act, we are of opinion that the two decisions referred to above lay down clearly the scope and effect of Section 51(iv) of the Act. The definition of "tope" in the Act does not lay down that, for the purpose of treating a land as tope, the land should have no other growth on it except "groups of fruit or nut bearing trees including palmyra trees". On the other hand, what Section 2(29) states is that for a land being treated as tope, it should contain "groups of fruit or nut-bearing trees including palmyra trees, constituting the mean crop in such land". Having regard to this feature, it follows that a land will constitute a tope so long as the main crop derived from it comes out of groups of fruit or nut-bearing trees including palmyra trees. The Legislature has advisedly used the words, "constituting the main crop in such land", as otherwise, the intention of the Legislature to exclude topes from the operation of the Act would get defeated by a lessee raising vegetables or agricultural crops on small portions of the land and then contending that by reason of negligible portions of the land being used for cultivation purposes the character of the land had become changed from tope to cultivable land. It is apposite to refer at this juncture to the proviso to Section 51(iv). It is apposite to refer at this juncture to the proviso to Section 51(iv). The proviso states that the exemption granted under Section 51(iv) will have force as long as the land continues to be orchard, tope or arecanut garden. From this also, it can be deduced that by reason of some crops or vegetables being raised or grown in small areas of an orchard, tope or arecanut garden, the land will not cease to be an orchard, tope or arecanut garden. Thus, reading together Section 2(29) and Section 51(iv) along with its proviso, it is patently clear that a land which constituted an orchard, tope or arecanut garden at the inception of the lease, will] not cease to be a land of the same character just because the lessee had put small portions of the land to some agricultural use. We are, therefore, in full agreement with the ratio laid down in Panchanathaeswaraswami Devasthanam v. Abdul Majid (1974) 87 L.W. 282 , that once a land as defined in Section 2(29), became converted into a tope, then the land would fall outside the scope of the Act in accordance with Section 51(iv) and, likewise, with the ratio laid down in Thiagaraja Sendar v. Sri Pasupateeswaraswami Devasthanam (1979) 1 M.L.J. 437 : 92 L.W. 524, that as long as a land is predominantly a cocoanut tope, the fact that the, lessee had raised some crops on portions of the land would not alter the character of the land." In the said decision, the Division Bench of this Court has held that even if a small portion of the land is used for an agricultural purpose, when the land is termed as "thope", the person in possession should not be called as a cultivating tenant. 15. Reliance was also placed on another judgment of a Division Bench of this Court reported in (2003) 4 L.W. 118 (A. Jagannathan Padayachi vs. Arulmighu Swaminathaswamy Devasthanam, Swamimalai, rep by its Executive Officer Thiru. A. Kumaraswami, wherein, in para 9, it has been held as follows:- "9. 15. Reliance was also placed on another judgment of a Division Bench of this Court reported in (2003) 4 L.W. 118 (A. Jagannathan Padayachi vs. Arulmighu Swaminathaswamy Devasthanam, Swamimalai, rep by its Executive Officer Thiru. A. Kumaraswami, wherein, in para 9, it has been held as follows:- "9. The admitted case of both parties is that the suit property is a coconut grove on ground and hence in view of the above decision between the same parties, we hold that the appellant herein is not a cultivating tenant entitled to claim the benefits of a cultivating tenant in view of Sections 51(iv) and 62 of the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act 1961 (Tamil Nadu Act 57 of 1961) for the reason of the specific provision under Section 62 of the said Act which exempts the properties of public Trusts such as the respondent-Devasthanam from the purview of Tamil Nadu Act 25 of 1955. It follows necessarily that the appellant is not entitled to the benefit of Tamil Nadu Cultivating Tenants Protection Act, 1955 (Tamil Nadu Act 25 of 1955). Though an attempt has been made on the part of the appellant to show that a petition for Special Leave has been filed before the Supreme Court of India as against the said decision, it is agreed by the counsel for both sides that the said petition, SLP(C) No.4704 of 2001, was dismissed on 23.07.2001. Hence, the decision that the appellant is not a cultivating tenant of the suit property has become final." 16. As in the above case, in the instance case also, admittedly, the suit property is a coconut thope and the applicability of the Act 25 of 1955 is remote. In view of the propositions laid down by the Division Benches of this Court, the claim of the appellant/plaintiff that he would be a lessee under the Tamil Nadu Cultivating Tenants Protection Act is rejected and the questions of law are answered in favour of the respondent. 17. In the light of the above findings, the Second Appeal is dismissed confirming the judgment and decree passed by the Courts below. However, in the circumstances of the case, there shall be no order as to costs.