Arulmighu Agatheeswara Swamy Koil Velipalayam vs S. Ramasamy and Others

R. Mala, J.—The second appeal arises out of the judgment and decree dated 26.06.1998 made in A.S. No. 166 of 1997 on the file of the Additional Sub-Court, Nagapattinam, reversing the judgment and decree dated 31.03.1997 in O.S. No. 130 of 1995 on the file of the District Munsif Court, Nagapattinam.

The appellant herein as plaintiff has filed the suit for injunction restraining the defendants to put up permanent structure in the suit property and also for mandatory injunction to remove the same stating that the suit properties belong to the plaintiff temple. It is the case of the plaintiff/appellant that the first respondent herein has entered into a lease agreement and he had put up hut in the suit property and residing there after paying a monthly lease amount of Rs.20/-. As per the lease agreement, the first respondent was restrained to put up any permanent structure in the suit property and also to sub-lease the suit property. However, the first respondent has sub-leased the suit property in favour of the second defendant and now, the second respondent had attempted to put up permanent building without obtaining necessary permission. Hence, the plaintiff/appellant was constrained to file the suit. After the filing of the suit, the second defendant along with the third defendant has completed the construction and hence, the third defendant was impleaded in the suit.

The second defendant filed written statement which was adopted by the first defendant wherein it was stated that the house has been constructed by one Sathi Devi, the third defendant in the suit. The property was actually leased out to the first defendant/Ramasamy and he has sold the superstructure to the third defendant. On the basis of the said transaction, the third defendant has given a letter to change the lease in her favour. However, no order came to be passed and no construction was also made. Hence, the respondents 1 and 2/defendants 1 and 2 prayed for dismissal.

After impleading, the third defendant had also filed the written statement stating that she has built the house by spending a sum of Rs. 2,00,000/- and that the house warming ceremony was conducted on 06.09.1995. She has further stated that without recognizing her tenancy, the suit has been filed and hence, she prayed for dismissal.

The Trial Court after framing necessary issues decreed the suit on the basis of the oral and documentary evidence let in by both sides. Against the decree and judgment of the Trial Court an appeal has been preferred. The first appellate Court has set aside the decree and judgment of the Trial Court against which the present second appeal has been preferred. At the time of admission, the following question of law has been framed.

"Whether the judgment of the lower appellate court is vitiated, as it''s finding against the plaintiff is not supported by any evidence?"

The learned counsel for the appellant would submit that it is an admitted fact that the properties belong to this appellant. It is also admitted that the properties has been leased out to the first defendant to put up temporary residence. According to the second respondent, the superstructure has been sold out to the third defendant. The third respondent has also filed an application for recognizing her tenancy. Admittedly, no order has been passed in the said application. However, the construction was completed and house warming ceremony was performed after the filing of the suit and after the Advocate Commissioner made an inspection. He further submitted that in the temple properties, no one is entitled for declaration of title and the lessees cannot claim protection under the City Tenants Protection Act. The learned counsel appearing for the appellant would further submit that the first respondent who is the original lessee had died and now the property is in the possession of the second and the third respondent. So, an appeal against the second and third respondent is maintainable. The Trial Court has not considered the said aspect in proper perspective and hence the learned counsel for the appellant prayed for allowing of the appeal.

Resisting the same, the learned counsel appearing for the respondents would submit that since the first respondent/lessee had died, the appeal has been dismissed as abated for not impleading the legal heirs of the deceased first respondent. So, the appeal against the respondents 2 and 3 is also not maintainable as they are only the sub- lessees. The learned counsel further submitted that the first appellate Court is the last fact finding Court and unless the judgment of the first appellate Court is perverse, the High Court shall not interfere with the finding of the first appellate Court. To substantiate the said argument, the learned counsel for the respondent relied upon the decision reported in Smt. Nallammal Vs. Dhanshkodi, (2000) 4 CTC 513 and submitted that the judgment of the first appellate Court is a well- reasoned judgment and hence, he prayed for dismissal of the appeal.

Considered the rival submissions made by both sides and perused the typed set of papers.

Admittedly, the first respondent is a lessee under the appellant. The second respondent has stated that the third respondent has purchased a super structure and the said document has not been filed before the Court. The argument advanced by the learned counsel for the respondent is that once the first respondent had died and no steps has been taken, the appeal against the first respondent gets abated and hence, the appeal itself is not maintainable. The above argument does not hold good because as per the averment and also the evidence, only the second and the third respondent alone is in possession and enjoyment of the suit property. So, there is no necessity to pass a decree against the first respondent, the dead person, who is not in possession of the suit property. In such circumstances, I am of the view that the appeal against the respondents 2 and 3 is maintainable, even though the appeal against the first respondent has been dismissed as abated for not taking steps to bring the legal heirs of the deceased R1 on record.

At this juncture, it is pertinent to note that the respondents 2 and 3 are not laymen. The second respondent was working as P.A to Collector, Tiruvarur District and the third respondent was working as Sub-Collector. So, they know very well about the consequences of making permanent structures in the temple property without obtaining prior permission from the owner of the property. Furthermore, if a permanent structure has to be constructed within the municipal area, necessary permission has to be obtained from the municipal authorities and while obtaining approval the consent is required from the owner of the property. However, the respondents have not filed any scrap of paper to prove that they have obtained prior permission from the municipal authorities before putting up the construction and also consent from the owner of the property. Per contra, on the side of the appellant, the property register has been marked to support their case.

It is contended by the learned counsel for the respondent that the appellant herein in its pleadings has stated that the second respondent was a sub-lessee and he is in possession of the suit property. But, admittedly the terms and conditions of the lease has not been filed. Even though the respondent herein has filed Ex.B.2 stating that the third respondent has prayed to recognize her as the lessee of the property on 16.11.1990, no order has been passed. So, till she was recognized as a lessee, she is only a trespasser and she cannot claim any right. Further, the third respondent has not filed any scrap of paper to show that she has purchased the superstructure from the first respondent who is the original lessee. It is also pertinent to note that the receipt for the payment of the lease amount has been issued only in the name of the first respondent. The other documents B4 to B6 are not disputed because they are in possession and enjoyment. As already stated, since the third respondent is not recognized as a lessee she is only a trespasser. Hence, the suit was filed immediately for injunction restraining the defendants to put up permanent structure in the suit property and also for mandatory injunction to remove the same stating that the suit properties belong to the plaintiff temple. However, without appearing in the suit, the construction was completed in the suit property and house warming ceremony was performed. At this juncture, it is appropriate to consider the decision relied on by the learned counsel for the respondent reported in Smt. Nallammal Vs. Dhanshkodi, (2000) 4 CTC 513 , wherein it was held that Lower appellate Court''s finding of fact should not be interfered with in second appeal so long as there is some material for arriving at suit finding by lower appellate Court. It is appropriate to incorporate paragraph 10 of the said decision:

"10. The lower appellate Court, as the final Court of fact, has come to a proper conclusion with regard to the non- genuineness of the agreement. Ex.A.2. As has been pointed out in the Supreme Court decision Taherakhatoon (D) by Lrs. Vs. Salambin Mohammad, AIR 1999 SC 1104 : (1999) 2 JT 45 : (1999) 1 SCALE 634 : (1999) 2 SCC 635 : (1999) 1 SCR 901 : (1999) 1 UJ 697 : (1999) AIRSCW 755 : (1999) 2 Supreme 446 that as long as there was some material for the rejection of the document, the Second Appellate Court ought not to interfere with the above said finding of fact reached by the lower Appellate Court."

It is true that the first appellate Court is the last fact finding Court and unless the judgment of the first appellate Court is perverse, it cannot be interfered with.

Now this Court has to decide whether the judgment of the First Appellate Court is perverse?

I am of the view that the first appellate Court without considering the fact that the respondents were neither recognized as lessee nor as sub-lessee had set aside the judgment of the Trial Court stating that the conditions imposed on the date of entering the lease has not been proved is unsustainable. The first appellate Court in its judgment has held "it has been admitted by both the parties that the first appellant/first defendant as lessee of the suit property had put up thatched shed and residing there. There is also no evidence to show that the first respondent is prevented to sub-let the property or put up permanent residence as the respondent/plaintiff has not filed an iota of document to prove the same and so, the argument advanced by the appellant in that regard cannot be accepted. Furthermore, there is no evidence to show that the property has been subleased to the appellants 2 and 3. So, the judgment of the first appellate Court is unsustainable." It is appropriate to incorporate the relevant portion of the judgment in vernacular language:

Vernacular Matter ommited here

The above judgment is perverse because the properties belongs to the temple and the first respondent is a lessee in the said property. Now the properties are admittedly in possession of the respondents 2 and 3. The candid admission of the third respondent in her written statement is that she has constructed a house in the suit property and had performed the house warming ceremony on 06.09.1995 and that has spent Rs.2,00,000/-. In such circumstances, the finding of the first appellate Court without any documentary evidence is perverse and hence this Court invoking its power under Section 100 of CPC, after perusing the oral and documentary evidence has come to the conclusion that the appellant is entitled to the relief as sought for in the plaint.

In the instant case, as already stated, the judgment of the first appellate Court is perverse and hence, this Court is empowered under Section 100 of the CPC to interfere with the finding of the first appellate Court.

Furthermore, no document has been filed by the second and the third respondents to show that they were paying the lease amounts through the first respondent. Even though they are Gazetted officers, they had not taken any steps to deposit the lease amount before the Court to show their bonafide. The respondents 2 and 3 have abused their official position and only to grab the temple property they have made the permanent construction without following the rules. So, I am of the view that it is a fit case for setting aside the judgment of the first appellate Court as the same is perverse and unsustainable. The substantial question of law is answered accordingly. The judgment of the first appellate Court is perverse and unsustainable and hence, the same is hereby set aside. Consequently, the judgment of the Trial Court is hereby restored.

In fine,

(a) The Second Appeal is allowed with costs.

(b) The judgment and decree passed by the first appellate Court is hereby set aside.

(c) The judgment and decree passed by the Trial Court is hereby restored.

(d) The time granted for delivery is two months.