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2018 DIGILAW 3840 (MAD)

G. Lakshmipathy v. P. Suresh Babu

2018-10-22

T.RAVINDRAN

body2018
JUDGMENT T.Ravindran, J. In this second appeal challenge is made to the judgment and decree dated 08.04.2014 passed in A.S.No.265 of 2013 on the file of XVII Additional Judge, City Civil Court, Chennai, reversing the judgment and decree dated 28.03.2013 passed in O.S.No.766 of 2012 on the file of the XVIII Assistant Judge, City Civil Court, Chennai. 2. The second appeal has been admitted on the following substantial questions of law. "(a) Whether the First appellate court was right in reversing the decree and judgment of the trial court by holding that the validity of the tenancy is yet to be decided by the writ court? (b). Whether the First appellate court was right in its impression that the writ court will go into the complicated questions on facts when the same questions on facts are involved in the present suit?" 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has been laid by the plaintiff/appellant for the relief of permanent injunction restraining the defendant or his men from entering into the suit property as described in the plaint schedule and demolishing any portion or altering the superstructure in any way with reference to the same. 5. The materials placed on record go to show that the plaintiff has sought for the abovesaid relief in the suit against the defendant claiming that his father Govindasamy was a tenant in respect of the suit property under the Executive Officer, Arulmigu Angala Parameswari Tirukoil, Choolai, Chennai 112 and it is a religious endowment under the control of the Commissioner, HR&CE department. It is stated that the plaintiff's father was running a tea stall in the suit property by paying rent to the Executive Officer and thereafter the plaintiff came to understand that the defendant's father Punniakotti had obtained the tenancy right in respect of the suit property by submitting the necessary requisition to the HR&CE department and on that basis, it is the case of the plaintiff that the HR&CE department had passed an illegal order directing the change of tenancy in respect of the suit property in favour of the defendant's father and in this connection, it is stated by the plaintiff that the representation had been given to the department to cancel the change of tenancy effected in favour of the defendant's father from the name of the plaintiff's father and on the other hand, in as much as the HR&CE department did not initiate any action thereupon, according to the plaintiff, his mother had preferred a writ petition in W.P.No.24359/2009 with reference to the quashing of the abovesaid order passed by the department transferring the tenancy in favour of the defendant's father and for a direction to the executive officer to collect the rent from the plaintiff's mother and it is further stated by the plaintiff that the said writ petition is still pending. Meanwhile, it is the case of the plaintiff that he has also closed the tea stall and kept it under lock and key and on the other hand, the defendant, without any authority, is attempting to open the tea shop and put up a new construction demolishing the existing construction and hence according to the plaintiff, he has been necessitated to lay the suit for appropriate relief. 6. 6. Per contra, the defendant has challenged the plaintiff's action contending that in as mush the plaintiff's father had ceased to continue with the tenancy of the suit property under the department and also died, on the request submitted by the defendant's father, the tenancy had been duly changed and accordingly, the defendant is running a small scale industry in the suit property and the tenancy had been changed only after due notice to one and all and in a lawful manner and hence the plaintiff is not entitled to maintain the suit against the defendant and no illegality could be attributed to in the change of tenancy in favour of the defendant's father and furthermore, it is also pleaded that the plaintiff has failed to implead HR&CE department in the matter to adjudicate the issues involved between the parties and in such view of the matter, the plaintiff's suit is bad for non joinder of necessary parties and also contended that the plaintiff has no cause of action to lay the suit and hence the suit is liable to be dismissed. 7. On the basis of the materials placed on record, it is found that the plaintiff has not placed any valid material to hold that the tenancy had subsisted in his favour or in favour of his mother in respect of the suit property on the date of the suit or any time prior thereto. No doubt, the tenancy had been originally granted in favour of the plaintiff's father, thereafter, it is seen that the tenancy of the plaintiff's father had also come to be terminated by the executive officer by issuing the notice under Section 106 of Transfer of Property Act, marked as Ex.A3, on the footing that the plaintiff's father had not been regular in the payment of rent. Thereafter, it is seen that on the requisition submitted by the defendant's father, the tenancy has been changed in the name of the defendant's father vide order dated 08.05.2009, the copy of which is marked as Ex.A7. On a perusal of Ex.A7, it is seen that after due notice to one and all through paper publication, as there was no resistance to the change of tenancy in favour of the defendant's father, accordingly, it is found that the department had changed the tenancy in favour of the defendant's father. On a perusal of Ex.A7, it is seen that after due notice to one and all through paper publication, as there was no resistance to the change of tenancy in favour of the defendant's father, accordingly, it is found that the department had changed the tenancy in favour of the defendant's father. Challenging the same, the plaintiff has moved the High Court by way of a writ petition and the same is still pending. Accordingly, it is found that the documents projected by the plaintiff marked as Exs.A11 to A14, by itself, would not entitle the plaintiff to hold that the tenancy is subsisting in his favour in respect of the suit property on the date of the suit. Even the rent receipt marked as Ex.A14 would only to go show that it had been paid till 2004, thereafter, there is no material placed on the part of the plaintiff that his father had continued to retain the tenancy in his favour in respect of the suit property, or for the matter, there is no material placed to hold that the plaintiff's mother, or the plaintiff, as the case may be, had continued the tenancy under the department after the death of the plaintiff's father. If really the plaintiff's mother and the plaintiff had continued the tenancy, they would have submitted the necessary requisition to the department on the demise of the father to change the tenancy in their names. However, with reference to the same, there is no material forthcoming and on the other hand, it is found that based on the requisition given by the defendant's father, the tenancy had been changed in his name vide order dated 08.05.2009, which has been marked as Ex.A7. The same is under challenge by way of the writ petition in the High Court. The same is under challenge by way of the writ petition in the High Court. Accordingly, it is noted that when the materials placed on record do not point out the existence of any valid tenancy in favour of the plaintiff in respect of the suit property and furthermore, when the materials placed on record by the plaintiff do not support his case of lawful possession and enjoyment of the property and on the other hand, when the tenancy had been admittedly changed in favour of the defendant's father and the matter is sub-judice in the High Court in the writ petition preferred by the plaintiff's mother and the department had also taken a stand in the High Court that the tenancy had been changed in favour of the defendant's father lawfully, accordingly, as rightly determined by the first appellate court, when the plaintiff has not sought for any relief of declaration challenging the change of tenancy in favour of the defendant's father vide order dated 08.05.2009 in the present lis and furthermore, when the HR&CE department has also not added as a party to the present lis as well as the plaintiff had also not endeavored to implead the Executive Officer of Arulmigu Angala Parameswari Tirukoil as a party to the present proceeding, in such view of the matter, without seeking the relief of declaration challenging the impugned order transferring the tenancy in favour of the defendant's father, in such view of the matter, considering the relief of injunction sought for by the plaintiff in the absence of any material to hold that the plaintiff has a valid tenancy right in respect of the suit property on the date of the institution of the suit or prior to the same and when the tenancy originally granted in favour of the plaintiff's father has ceased to operate on his demise and thereafter neither the plaintiff's mother nor the plaintiff had endeavored to get the tenancy right transferred in their names from the authorities concerned in the manner known to law and when in the meanwhile, the tenancy had been transferred in the name of the defendant's father and the challenge with reference to the same is still pending before the High Court and furthermore when the plaintiff has not sought for the relief of declaration as regards the order effecting the change of tenancy in favour of the defendant's father and the plaintiff also having failed to implead the HR&CE department as well as the Executive Officer of Arulmigu Angala Parameswari Tirukoil in the present proceeding, in such view of the matter, the first appellate court is justified in holding that the plaintiff cannot be granted the relief prayed for in the lis as the materials projected in the matter do not sustain his claim of relief prayed for and accordingly it is found that no interference is called for in the judgment and decree of the first appellate court dismissing the plaintiff's suit. 8. In this second appeal, the plaintiff's counsel has also put forth the contention that the tenancy had been transferred in the name of the defendant's father on extraneous considerations, hence on that ground alone, the same is liable to be set aside. However, when with reference to the same, the lis is pending in the High Court by way of the writ petition, as rightly determined by the first appellate court, the plaintiff has to work out his remedies in the High Court with reference to the same, particularly, he having not sought for the relief of declaration challenging the transfer of the tenancy in favour of the defendant's father and also failing to implead the necessary parties in the present proceeding as above discussed and in such view of the matter, the first appellate court is correct in holding that in as much as the validity of the transfer of the tenancy is to be decided by the High Court in the writ jurisdiction and the plaintiff having not sought for the relief of declaration as regards the same in the present suit as well as not having impleaded the proper and necessary parties to adjudicate the said point in the present suit, it is seen that the plaintiff's second appeal is devoid of merits. The substantial questions of law formulated in this second appeal are accordingly answered against the plaintiff and in favour of the defendant. 9. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.