Arulmighu Neelakanda Pillaiyar Koil Aanthal vs S.R. Arunachalam Chettair

E. Padmanabhan, J.—Appeal against the Decree of the District Judge, Thanjayur, dated 9.11.1993 in Appeal Suit No. 168 of 1992

preferred against the decree of the Court of the Subordinate Judge, Pattukkotai dated 9.3.92 in Original Suit No.44 of 1983.

At the time of admission, the following two substantial questions of law were framed by this Court:-

(i) Whether the lower appellate court is right in holding that the appellant temple cannot maintain the above suit for recovery of rent arrears from

the respondent on the basis of the decision reported in 84 L.W. applying the principles laid down in 92 L.W.376 and 93 L.W.707 when

admittedly the respondent became the tenant under the Appellant''s temple in the year 1974 having purchased the superstructure from the erstwhile

tenant much after the notified date?

(ii) Whether Lower Appellate Court was right in holding that by virtue of the provisions of Act 26 of 1963, the Appellant Temple has lost right to

recover the rent from the respondent when the respondent himself has admitted the joint patta and also the payment of rents from 1974 to 1979 to

the Appellants temple?

Heard Mr. S. Thiruvangadasamy, learned counsel appearing for the appellant and Mr. V.K. Vijayaraghavan, learned counsel appearing for the

respondent in the Second Appeal.

For convenience, the parties to this appeal will be referred as arrayed before the trial court.

The plaintiff instituted the suit O.S.No.44 of 1983 on the file of the Sub Court, Pattukkottai, against the defendant seeking for recovery of

arrears of rent from the defendant due to the plaintiff temple. According to the plaintiff, the suit property belong to the plaintiff temple. It is the

further case of the plaintiff that the defendant who had purchased the superstructure from one Babu Rawther had executed a lease deed with

respect to the site which belonged to the plaintiff in terms of lease deed which had expired on 13.12.1979. The plaintiff issued a notice terminating

the lease on 11.12.1979. By a reply letter dated 19.12.1979, the defendant requested the plaintiff to renew the lease. On 16.6.1980 the defendant

agreed to pay a rent of Rs.525/- per month for the land commencing from 14.12.1979. That apart the defendant also requested the plaintiff to

convey the suit property to him at the rate of Rs. 1,500/- per cent. The plaintiff while stating that the defendant did not pay the rent and after

14.12.1979, had filed the suit for recovery of arrears of rent aggregating to Rs. 18,900/- with interest. The defendant had also failed to surrender

possession. The plaintiff claimed exclusive right to collection of rent and the defendant is a tenant in respect of the land and therefore he is liable to

pay the rent in terms of the lease agreement.

The defendant while admitting the lease deed pleaded that what was agreed to is a lease at the rate of Rs.120/- while the defendant further

pleaded that he had put up constructions at a cost of Rs.3.5 lakhs and he has been in enjoyment of the suit property. The defendant on the request

of the plaintiff had executed a letter as if he is a tenant of the latter and as if he has requested for renewal of the lease. The defendant admitted that

he had requested the plaintiff to sell the suit property. The defendant is in possession of the suit property as lessee, that on and after 16.6.1980 the

defendant is not a lessee as the defendant has been in enjoyment of the suit property as per the agreement to sell at the rate of Rs.525/- per cent

and that the defendant is not liable to pay rent. According to the defendant the plaintiff is not entitled to claim any rent and the plaintiff has no right.

The defendant further pleaded that he is not liable to pay Rs.120/- per cent as a tenant to the owner.

On the said pleadings the trial court framed seven issues. The trial court at the first instance decreed the suit. As against the same an appeal was

preferred by the defendant in A.S.No.143 of 1986. Pending the first appeal the defendant filed an additional written statement claiming that he is

entitled to the benefits under the Tamil Nadu Act 30 of 1963 and therefore, he is not liable to be evicted on any account, nor he is liable to pay

rent as he has become the owner. After the filing of additional written statement the first appellate court framed an additional point for consideration

and remanded the matter back to the trial court.

According to the defendant, the suit property is Minor Inam as defined in Tamil Nadu Act 30 of 1963, that it vested with the State Government

and that the plaintiff temple has been asked to establish the right it has got in the suit site and that the defendant who is the owner of the

superstructure is also entitled to the land and that the plaintiff is not entitled for recovery of arrears of rent as if it is still the owner of the land.

The trial court once again framed six issues as well as one additional issue. The trial court by its judgment dated 9.3.1992 decreed the suit with

interest for arrears of rent after consideration of oral and documentary evidence.

Being aggrieved the defendant preferred A.S.No.168 of 1992 before the first appellate court. The defendant mainly contended that it is entitled

to the benefits of Tamil Nadu Act 30 of 1963, that the plaintiff temple has no present interest nor has the right to claim for arrears of rent in respect

of the suit vacant site, that the suit vacant site vests with the State Government and therefore the plaintiff temple has no right to the suit vacant site,

nor it is entitled to recover the rent or the vacant site as the case may be.

The first appellate court mainly considered the contention that the suit vacant site vests with the State Government in terms of Act 30 of 1963

and therefore it concluded that the plaintiff is not entitled for recovery of arrears of rent as prayed for in the suit.

The first appellate court had considered the scope and effect of Section 13of the Tamil Nadu Minor Inams (Abolition, Conversion into

Ryotwari) Act, 1963 while following the decisions of this Court in 1971 MLJ 278, 1992 L.W.376 as well as 1993 L.W.707, allowed the appeal

and dismissed the suit in its entirely. Being aggrieved, the present Second Appeal has been preferred.

Taking up the questions of law raised for consideration, it is essential to refer to certain undisputed facts which would have a bearing on the

points raised for consideration. In Ex.A.1 dated 16.6.1980 the defendant applied, to the plaintiff Temple for lease of the site and as seen from Exs.

A.3 and A.4, the plaintiff temple agreed to lease out. Under Exs.A.2 and A.3 dated 11.12.1979 and 16.6.1990, the competent authority, namely

the Deputy Commissioner, MR & CE had permitted to plaintiff to renew the lease. As seen from Exs.A.8, A.9, A.14, A.16 to A.19 the defendant

had been paying the ground rent for the suit property, namely the rent for vacant site to the plaintiff for the years 1979 to 1981.

It is also admitted that the defendant had been paying the rent and there had been earlier litigations between the parties for recovery of arrears

of rent. The execution of lease deed is not disputed. As seen from the defendant''s documents, the defendant himself has requested the plaintiff to

convey the suit site. As such it is clear that the status of the defendant being a tenant of the land which belonged to the plaintiff. Even before the

defendant executed the lease deed, the property was under lease of the third party from whom the defendant had purchased the superstructure and

his vendor was admittedly a lessee of the suit vacant site. After the purchase the defendant while admitting the plaintiff''s title to the suit site also

applied for renewal of lease of the site in his favour which was considered and granted by the plaintiff temple. As such it is obviously clear that the

plaintiff is the owner of the land while the defendant who had purchased the property from a third party had not only admitted the plaintiff''s title to

the suit site but also had been paying the rent before executing the lease deed. These facts are not in controversy.

It is further contended by way of additional pleas, the defendant had raised the plea that the plaintiff has no right to recover the arrears of rent

from the defendant as he is the owner of the superstructure and that the land also vested with him absolutely.

The first appellate court had relied upon two earlier decisions of this Court and on that basis held that the plaintiff is not entitled to recover the

arrears of rent and allowed the appeal and dismissed the suit, while the trial court had decreed the suit. The two decisions relied upon by the first

appellate court had been concedingly reversed by the Hon''ble Supreme Court. It is also a matter of record that the defendant had admitted the

title and right to lease out the suit land and had also executed the lease deed in favour of the plaintiff temple. The Supreme Court in respect of the

same Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act 30 of 1963) in K.S. Thirugnanasambandam

Chettiar (Dead) Etc., v. The Settlement Thasildar Coimbatore & ors. Reported in 1996(1) L.W.19, had considered the scope of Section 13of the

Act and held thus:-

(1) Every building situated within the limits of an Inam land shall, with effect and from the appointed day, vest in the person who owned it

immediately before that day but the Government shall be entitled for each fasli year commencing with the fasli year in which the appointed day falls

to levy the appropriate assessment thereon.

(2) In this section, building includes the site on which it stands and any adjacent premises occupied as an appurtenance thereto.

It is plain from a bare reading of the Section and its setting that it is a provision occurring in Chapter III as one of the tools to confer ryotwari pattas

to persons entitled. The Preamble of the Act makes it clear, as also its name, that the Act enables the State to accomplish acquisition of the rights

of inamdars in minor inams in the State of Tamil Nadu and introduction of ryotwari settlements in such inam lands. It nowhere envisaged that the

rights of a person who held a ryotwari patta in his favour or was otherwise entitled to a ryotwari patta, were meant to be abolished under the Act.

Rather, on abolition of inams claims of persons entitled to the grant of ryotwari pattas had to be examined and settled. Under the provision under

scrutiny too, it is patent that some ryotwari pattas has to be settled. Where buildings stood erected on inam lands immediately before appointed

day and the government in that event was entitled to an appropriate assessment as envisaged therein. Designedly, the building so erected was to

include the site on which it stood and any adjacent premises occupied as an appurtenance therein. Since the scheme of the Act patently was in

establishment, and preservation of ryotwari rights, it cannot be said that by virtue of Section 13, the ryotwari rights of the site owners stood

abolished or those rights got merged in the building and hence vesting in the building owner. Rather a dural estate is conceived of in the scheme of

Section 13, that is to say, the building may belong to one and the site to another. It is, therefore, not necessary that both the site and the building

should belong to one and the same person so as to derive the benefit of Section 13with effect from the appointed day. A dual estate is not

repugnant to the provision, which evidently is of a very special nature, when ryotwari patta may not be admissible for a building per se, but may be

admissible for the site standing thereon. Yet, this is a special provision which confers rights on the building-owners also, though in the strict sense

that right may not be ryotwari right conferrable in the form of a patta. The provision, self-contained as it is, allow the Government levying an

appropriate assessment thereon for each fasli year commencing with the fasli year in which the appointed day fell, which assessment obviously

would be based on the assessment due on the site as if unbuilt, and not on the price of the buildings. It would, thus, seem to us that the Special

Appellate Tribunal went astray in giving an interpretation to the provision which neither furthers the objectives sought to be achieved by the

Legislature nor in the fitness of the legislative design which was drawn up to achieve a purpose. We thus have no hesitation in allowing these

appeals and upsetting the impugned orders of the Special Appellate Tribunal.

It is not the case of the contesting defendant that there was any alienation of the site in favour of the defendant or his predecessor from whom

he had purchased the superstructure. Nor it is the case of the defendant that the defendant or his predecessor have been granted any patta under

the Tamil Nadu Act 30 of 1963 or under any other statutory provision and even if such a patta is issued in favour of the defendant without

alienation it is an illegality as no alienation by way of sale is permissible and such a sale would be null and Void.

It is therefore, clear that the plaintiff temple had not lost any of its right including the right to maintain a suit for recovery of arrears of rent. The

defendant had admitted the tenancy and also admitted the liability to pay the rent by executing the lease deed. The rights of the plaintiff temple had

not been extinguished by the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963.

In Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal Vs. Smt. T. Parvathi Ammal and Ors, it has been held that the Civil Court''s jurisdiction

to adjudicate the title of the party is not barred by virtue of the provisions of the Tamil Nadu Act 30 of 1963. Following the earlier judgment in R.

Manicka Naicker Ors. Vs. E. Elumalai Naicker, , it has been held that even if a tenant constructs a building, on coming into force of the Tamil

Nadu Act 30/63, the inamdar is not dispossessed of the site and the building alone is owned by the tenant. The earlier decision of this Court which

has been relies upon by the first appellate Court had beer reversed in this case. The Apex Court in Manicka Naicker v. Ezhumalai Naicker, cited

supra, held thus:-

The Assistant Settlement Officer is required under Sec. to enquire into the claims of any person to a ryotwari patta in respect of any Inam Land

and to decide it. This enquiry has to be conducted by the Assistant Settlement Officer in the manner set out in Sec. 11. Under Sec. 12, every

person who becomes entitled to a ryotwari patta is required to pay land revenue to the Government as set out therein. The grant of ryotwari patta

is for the purpose of collection of land revenue. By eliminating minor Inams any intermediaries for the collection of land revenue are eliminated, in

the case of building situated within an Inam Land, Sec. 13provides that the building shall vest in the person who owned it immediately before the

appointed day but the Government shall be entitled to levy appropriate assessment on it. As the object of the enquiry by the Settlement Officer is

the grant of a ryotwari patta as a revenue settlement, the grant of a patta cannot be equated with an adjudication of title to the lands in question.

The contention of the appellant that by virtue of Sec. 13the land underneath the building also vests in him must be rejected. Sec. 13does not

vest any property in a person in whom that property did not vest prior to the appointed day. It merely sets out that a building shall vest in the

person who owned it immediately before the appointed day. Sec. 13(2) merely provides that the site on which the building stands will also be

covered by Sec. 13(1). Hence the site on which the building stands will vest in the person who owned it immediately before the appointed date.

In the case of Sri Kumarakattalai Subrahmanyasami Devasthanam v. Sundararajula Chettiar ILR (1975) Mad. 501 a learned Single Judge of

the Madras High Court considered the provisions of Sec. 13of the said Act and held that unless the owner of the buildings is also the owner of the

site, the site will not vest in the owner. The effect of Sub Sec.(2) is not to make a statutory transfer of the land to the owner of the building where it

had not formerly belonged to him. An inamdar who continues to be in constructive possession of the site even after the notified date would be

entitled to recover possession from his tenant. We respectively agree with these findings of the learned Single Judge.

In the light of the said pronouncement, the Second Appeal has to be allowed. The plaintiff temple has got the right to collect the rent from its

tenant and the extinguishment of such a right pleaded by the defendant-tenant cannot be upheld. In the light of the pronouncements, the substantial

questions of law are answered in favour of the appellant-temple. Following the above pronouncement of the Apex Court, the Second Appeal is

allowed. The judgment of the first appellate court is set aside and that of the trial court is restored. The Second Appeal is allowed with costs of Rs.

1000/- to the appellant. RR/VCS