V.Sundaram v. Arulmighu Sundaravaradaraja

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 24.07.2018 PRONOUNCED ON : 26.07.2018

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.Nos.1452, 1453,1732 to 1735, 1929 & 1995 of 2004 S.A.No.1452 of 2004

1. V.Sundaram

2. G.Venu ..Appellants in SA.1452/2004/ Defendant 2&3 B. Madanagopal Reddy ..Appellant in SA.NO.1453/2004/ 1st Defendant E. Venkatesa Reddy ..Appellant in SA.No.1732/2004/ 1st Defendant

1. Sarasu

2. Packiyalakshmi ..Appellants in SA.1733/2004/ Defendant 2&3 P. Mohan ..Appellant in SA.No.1734/2004/ 1st Defendant Ravanammal ..Appellant in SA.No.1735/2004/ 1st Defendant A. Abdullah ..Appellant in SA.No.1929/2004/ 1st Defendant E.M.Rengaiah ..Appellant in SA.1995/2004/ 1st Defendant Vs.

1. Arulmighu Sundaravaradaraja Perumal Devasthanam, Virugambakkam, Chennai - 92.

Rep.by it's Trustees (Fit Person) (i)M.Subramanian S/o.Manicka Gramani No.5, Kaliamman Koil Street, Virugambakkam, Chennai-600 092.

(ii)V.C. Kaliappa Naicker (iii) P. Thiruvenkadam ..1st Respondent/Plaintiff in all the appeals

2. Tamil Nadu Slum Clearance Board, Rep.by it's Chairman, 5, Kamarajar Salai, Triplicane, Chennai - 5.

..2nd Respondent in all the appeals

3. Arulmighu Sundaravaradaraja Perumal Temple, rep.by its Executive Officer, Administrative Office, At Administrative Office, K.K.Nagar, Chennai - 78.

..3rd Respondent/in all the appeals Prayer in S.A.No.1452 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 19.09.2003 passed in A.S.No.204 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8511 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1453 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.202 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8509 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1732 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.207 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8513 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1733 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.210 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8516 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1734 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.206 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8515 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1735 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.203 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8510 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1929 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.209 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8518 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

Prayer in S.A.No.1995 of 2004:- Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 19.09.2003 made in A.S.No.205 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 made in O.S.No.8514 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

For Appellants : Mr.S.V.Jayaraman Senior Counsel for Mr.N.Maninarayanan Respondent No.1 : No appearance in all appeals For Respondent No.2 : Mr.S.Prabhu in S.A.Nos.1732 to 1735/2004 Respondent No.2 : Given up in S.A.Nos.1452,1453,1929 & 1995 of 2004 For Respondent No.3 : Mr.R.Mahalingam in all appeals COMMON JUDGMENT S.A.No.1452 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.204 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8511 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1453 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.202 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8509 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1732 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.207 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8513 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1733 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.210 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8516 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1734 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.206 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8515 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1735 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.203 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8510 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1929 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.209 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8518 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

S.A.No.1995 of 2004 In this second appeal, challenge is made to the Judgement and Decree dated 19.09.2003 passed in A.S.No.205 of 2001 on the file of the I Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 30.11.2000 passed in O.S.No.8514 of 1986 on the file of the XIII Assistant Judge, City Civil Court, Chennai.

2. The suits have come to be laid by Arulmighu Sundaravaradaraja Perumal Devasthanam, Virugambakkam, in respect of the suit lands contending that the suit lands belong to the plaintiff's Devasthanam and some of the defendants have been inducted as lessees and most of the

defendants have encroached upon certain portions of the suit lands and in order to avoid litigation, the plaintiff's Devasthanam had been permitting them to occupy the suit lands by collecting fixed rent monthly wise for the use of the occupation the portion intruded by them and on account of the encroachment made by the defendants and their occupation, the worshippers of the plaintiff's deity are put to hardship and also the defendants continue to extend their encroachment and unauthorisedly putting up construction/superstructure in the portion occupied by them and accordingly, as the suit lands are required for the plaintiff's Devasthanam for enabling the worshippers to offer prayers to the deity and also for taking the deity in procession, accordingly, demanding the vacant possession of the suit lands, the plaintiff issued notice to the defendants and as the same had been repudiated by the defendants by issuing replies containing false allegations, according to the plaintiff's Devasthanam, it had been necessitated to lay the suits for appropriate reliefs.

3. The defendants claiming that they are the lessees of the plaintiff's Devasthanam and accordingly, they had put up the structure with the knowledge of the plaintiff's Devasthanam and there is no encroachment as alleged and no further construction has been put up by the defendants causing any hindrance to the worshippers and for the deity being taken in procession and the defendants and their ancestors had been in the possession and enjoyment of the suit lands and entitled to the benefits of Section 9 of the City Tenant Protection Act and further, according to the defendants, the suit lands had been taken over from the plaintiff's Devasthanam by the Tamil Nadu Slum Clearance Board and accordingly, the Tamil Nadu Slum Clearance Board had plotted the lands and the defendants were allotted the said plots and hence, contended that the suits laid by the plaintiff's Devasthanam are not maintainable and the suits are liable to be dismissed.

4. It appears, considering the defence projected by the defendants, the Tamil Nadu Slum Clearance board has also been impleaded as the party defendant in the matter, however, the Tamil Nadu Slum Clearance Board has not filed any pleas as such in the matter.

5. The various suits levied by the plaintiff Devasthanam against the defendants were tried together as common issues were involved in the suits and accordingly, it is found that common evidence had been recorded in all the suits and in support of the plaintiff's case, PWs1 & 2 were examined and Exs.A1 to A29 were marked. On the side of the defendants, DWs1 to 5 were examined and Exs.B1 to B32 were marked.

6. On the basis of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court accepted the plaintiff's contentions in all aspects and rejecting the defence version and accordingly,

decreed the suits as prayed for. On appeal, the first appellate Court also had concurred with the judgment and decree of the trial Court and dismissed the appeals preferred by the defendants. Impugning the same, the defendants had preferred the present second appeals.

7. All the second appeals have been admitted on the following substantial questions of law:

" (1). Whether the Courts below are legally right in entertaining the suit without a prayer for declaration of its right in terms of the claim made by the Housing Board?

(2). Whether the Judgment and Decrees of the Courts below are legally sustainable when they fail to consider the effect of exhibits filed by the appellant?

(3). Whether the Courts below legally right in decreeing the suit without giving a finding the circumstances under which the Appellant is in possession of the suit property?

(4) Whether the Appellant is not entitled to take advantage of the benefits conferred on tenants by the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 2003 Act 25 of 2003?"

8. As per the pleadings put forth by the respective parties, as rightly determined by the Courts below, the ownership of the plaintiff's Devasthanam in respect of the suit lands is not in dispute as such. In this connection, the materials had also been placed by the plaintiff's Devasthanam to show its claim of ownership to the suit lands. Even the Tamil Nadu Slum Clearance Board which had been impleaded as the party defendant, did not dispute the claim of title of the plaintiff's Devasthanam in respect of the suit lands. Thus, it is found that the plaintiff's Devasthanam has title to the suit lands.

9. Though the plaintiff's Devasthanam would contend that the defendants had encroached into the suit lands and put up the structure without any authority, however, from the materials placed on record, it is found that the defendants and their forefathers had been in the possession and enjoyment of the suit lands and accordingly, it is found that recognising them as the lessees, rent had been collected by the Devasthanam from them for their occupation of the portions in the suit lands and also the plaintiff's Devasthanam having

issued the notice demanding vacant possession from them and such being the position, it is found that the Courts below had rightly determined that the defendants are not the encroachers of the suit lands as put forth by the plaintiff's Devasthanam and only the lessees under the plaintiff's Devasthanam.

10. As abovenoted, the plaintiff's Devasthanam had issued the notice to the defendants calling upon them to surrender possession of the suit lands. The only and the main defence projected by the defendants is that the suit lands had been entrusted by the plaintiff Devasthanam to the Tamil Nadu Slum Clearance Board or taken over by the Tamil Nadu Slum Clearance Board and accordingly, the Tamil Nadu Slum Clearance Board having plotted the suit lands and handed over the plots to the defendants, it is their contention that the suits laid by the plaintiff Devasthanam for ejection would not lie and hence, the suits are liable to be dismissed.

Thus, according to the defendants, the suit lands having been vested with the Tamil Nadu Slum Clearance Board and accordingly, the suit lands having been declared as Slum Area, without the necessary permission from the prescribed authority as provided under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971, the suits laid by the plaintiff's Devasthanam for ejection as such, are not maintainable and hence, prayed for the dismissal of the plaintiff's suits.

11. The abovesaid defence projected by the defendants had been stoutly disputed by the plaintiff Devasthanam.

12.

At the foremost, the defendants having admitted that they had been inducted as the lessees of the plaintiff Devasthanam into the suit lands and been in the occupation of the suit lands from the days of their forefathers as the lessees of the plaintiff Devasthanam and however, when they have taken the plea that the Devasthanam had entrusted the suit lands to the Tamil Nadu Slum Clearance Board or the Tamil Nadu Slum Clearance Board had taken over the suit lands and accordingly, the Tamil Nadu Slum Clearance Board had plotted the suit lands and handed over the plots to them, as rightly determined by the Courts below, the defendants should establish that the suit lands had been taken over/entrusted to the Tamil Nadu Slum Clearance Board as claimed by them and the Tamil Nadu Slum Clearance Board, pursuant thereof, had issued Section 3(1) and 11(1) notifications of the abovesaid Act and accordingly, it is found that only on the notification being issued as abovestated, the suit lands would become vested with the Tamil Nadu Slum Clearance Board.

As far as the materials placed on record, it is found that the defendants have not placed any piece of evidence to safely conclude that the Government had issued Section 3(1) and 11(1) notifications under the abovesaid Act for declaring the suit lands as the slum area.

the suit lands had become vested with them and they had issued the necessary notifications declaring the suit lands as the slum area as put forth by the defendants. In such view of the matter, sans any proof as regards the notifications under Section 3(1) and 11(1) of the abovesaid Act, it is seen that the claim of the defendants that the suit lands had become vested with the Tamil Nadu Slum Clearance Board, as such, cannot be countenanced and only on the establishment that the suit lands had been declared as the slum area by the issuance of the necessary notifications under the abovesaid Act, the question of seeking the permission of the prescribed authority under the Act would arise.

However, when it is found that no such notifications had been issued under the Act as above detailed, no permission is required to be obtained from the prescribed authority for instituting the suits as put forth by the defendants. Thus, it is found that the pleas put forth by the defendants that the suit lands had become vested with the Tamil Nadu Slum Clearance Board and therefore, the suits laid without the prior permission of the prescribed authority under the Act are liable to be rejected, the same having not been established, accordingly, it is noted that the Courts below had rightly rejected the said version.

13. Resultantly, it is found that the suit lands being the property belonging to the plaintiff's Devasthanam and the defendants being the lessees under the plaintiff's Devasthanam and the defendants having put up the structure without the consent of the plaintiff's Devasthanam and accordingly, the plaintiff's Devsthanam being entitled to seek the recovery of possession of the suit lands from the defendants and the defendants, under the guise of their occupation of the suit lands, when found to be annexing more extent of the lands belonging the plaintiff's Devasthanam and put up structures thereon and as regards the same, the plaintiff's Devasthanam has sought for the relief of injunction, accordingly, it is found that the Courts below had rightly appreciated the materials placed on record, both factually as well as legally, and accepted the plaintiff's case and rejected the defence version.

14. In the light of the above discussions, the suit lands admittedly found to be belonging to the plaintiff's Devasthanam, there is no need on the part of the plaintiff's Devasthanam to seek any relief of declaration with reference to the same. The Courts below had appreciated the materials placed on record in the proper perspective, both factually and legally and hence, no interference is called for with reference to the their reasonings and conclusions for upholding the plaintiff's case and rejecting the defence version. The defendants are not shown to be entitled to the benefits of the Tamil Slum Areas (Improvement and Clearance) Act, 1971, as well as any of the benefits conferred on the lessees by the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 2003 and accordingly, the

substantial questions of law formulated in all the second appeals are accordingly answered against the defendants and in favour of the plaintiff Devasthanam.

15. The counsel appearing for the plaintiff's Devasthanam in support of his contentions, placed reliance upon the decisions reported in (2002) 2 Supreme Court Cases 440 (Neelakantan and others Vs. Mallika Begum), 1996-1-L.W.602 (Vital Vel Press represented by K.G.Vittal (K.G.Vittal died) and others Vs. Sri Ranganathaswamy Temple, No.48, Mulla Sahib Street, Madras-1 and represented by its Executive Officer Aravanan), 1996-1-L.W.502 (S.P.Dhakashinamoorthy (died) and 2 others Vs. Sri Kamakshi Amman Temple, represented by its Trustees, etc) and (1970) MLJ 578 (T.NRamachandra Naidu Vs. T.R.Parameswaran Nair). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.

For the reasons aforestated, all the second appeals fail and accordingly, are dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed. Sd/- Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar sms To

1. The I Additional Judge, City Civil Court, Chennai.

2. The XIII Assistant Judge, City Civil Court, Chennai.

3. The Section Officer, V.R.Section, High Court, Madras. + 8 ccs to M/s. R. Mahalingam, Advocate Sr.50502 to 50509 + 1 cc to Mr. S. Prabhu, Advocate Sr.51237 + 3 ccs to Mr. N. Maninarayanan, Advocate Sr.51204 to 51206 S.A.Nos.1452, 1453,1732 to 1735, 1929 & 1995 of 2004 MP(CO) EU(24/12/2018)