Arulmigu Sakthivaneswaraswamy Temple vs Habib Rahman

Pushpa Sathyanarayana, J.—This Second Appeal has been filed praying to set aside the Decree and Judgment passed in A.S. No. 18 of 2005 dated 31.10.2005 on the file of the Principal Sub-Court, Kumbakonam reversing the Decree and Judgment of the Additional District Munsif Court No. 1, Kumbakonam in O.S. No. 24 of 2002 dated 29.9.2003. The Plaintiff is the temple, who is the Appellant herein.

The Suit is for recovery of possession.

The case of the Plaintiff is that the Plaint Schedule property belonged to the Temple and it was leased out to the First Defendant as found in the Temple records. But now, the Second Defendant is in possession of the property as a Sub-Tenant of the First Defendant, which is against law. As the First Defendant was not paying the lease properly and without the written consent of the temple had sub-let the property, the temple decided to evict him from the premises. The First Respondent also had put up superstructure over the Suit property. Therefore, the Plaintiff issued Notice on 21.12.2000 calling upon the Defendants to remove the superstructure and vacate the Suit property. As the Temple is a public temple, neither the Tamil Nadu Buildings (Lease and Rent Control) Act nor the Tamil Nadu City Tenants'' Protection Act is applicable to the facts.

The First Defendant remained ex parte and only the Second Defendant filed the Written Statement and contested the Suit.

According to the Second Defendant, the Plaintiff had recognised him as a Tenant of the site. The Second Defendant also claimed to be an Agriculturalist and hence, claimed that he cannot be evicted. According to the Second Defendant, the First Defendant is only a transferee of the lease to the Suit property and was not a direct lessee under the temple. As the First Defendant''s right as the lessee was recognised by the temple, same way, the Second Defendant''s rights also should be recognised.

The Second Defendant contended that he was willing to pay the rent and also the arrears to the temple and expressed his willingness to continue in the Suit property.

Before the Trial Court, Exs. A1 & A2 has been marked and PW 1 had been examined. On the side of the Defendants, Exs. B1 to 31 had been marked and DW 1 had been examined.

The Trial Court, after consideration of the facts and evidence, decreed the Suit for possession directing the Defendants to remove the superstructure on the Suit property and deliver vacant and possession to the temple and it was open to the Plaintiff to take action under Order 20, Rule 12, for the mesne profits.

Aggrieved by the same, the Second Defendant preferred an Appeal in A.S. No. 18 of 2005, which was allowed in favour of the Second Defendant and set aside the Decree granted in favour of the Plaintiff. Feeling aggrieved, the Plaintiff-Temple has come up with the above Second Appeal.

At the time of admission, the following substantial questions of law were formulated:

"1. Whether the First Defendant, who was the admitted Tenant of Suit property did not file any Appeal as against the Decree and Judgment dated 29.9.2003 in O.S. No. 24 of 2002 on the file of the Additional District Munsif Court, Kumbakonam was the Appeal in A.S. No. 18 of 2005 filed by the Second Defendant, who was only a Sub-Tenant is maintainable and competent?

When the Second Defendant did not exhibit of file the Circular in ref. in R.C. 65242/78/D4 dated 29.8.1978 purported to have been issued to regularise his occupation of temple land, was the reliance placed by the Lower Appellate Court, on the said Circular, is tenable in law?"

Heard Mr. M.R.S. Prabhu and Mr. A. Haja Mohideen for the First Respondent and there is no appearance for the Second Respondent.

The admitted facts in the Suit are that the temple is the owner of the property and that the First Defendant was a lessee under the same. The Second Defendant has got no privity with the temple but is only a sub-lessee under the First Defendant.

The learned Counsel for the Appellant temple contended that the temple is governed by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.

The contentions raised by the learned Counsel for the Appellant are:

a. The First Appeal filed by the Sub-Tenant is not maintainable as the original Tenant has not joined him.

b. The lease cannot be granted in favour of the Second Defendant as the same could be done only by Public Auction.

c. Any transfer of property of a temple can be done only with the prior sanction from the Commissioner, Hindu Religious and Charitable Endowments Act, 1959.

d. The Second Defendant having denied the title of the temple is not entitled to any benefits.

(a). The learned Counsel appearing for the First Respondent contended that Notice issued under Section 106 of the Transfer of Property Act is not valid.

(b). The First Defendant himself was not the direct lessee of the temple. He was only subsequently recognised. Hence, the Second Defendant also should be recognised as a Tenant.

The learned Counsel for the Appellant invited the attention of this Court to Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and the same reads as follows:

"Alienation of immovable trust property.--(1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution:

Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner:

Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government."

From the reading of the above Section, it is clear that any lease of the property belonging to the temple exceeding a period of five years should be done only with the sanction of the Commissioner and the procedure also is prescribed therein as to how the objections and suggestions can be invited before leasing the immovable property.

In this regard, it is relevant to quote Rule 11 of the Religious Institutions (Lease of Immovable Property) Rules, 1963

"Lease otherwise than by Public Auction.--(1) The Commissioner on an Application, made to him by the Executive Authority of a Religious Institution, may permit the lease of any property or any right otherwise than by Public Auction, if he is satisfied that the interest of the institution will not suffer by dispensing with the Public Auction."

As per the above Rule, the Commissioner has got the power to permit the lease of any property or any right by dispensing with the Public Auction, if he is satisfied that the interest of the institution will not suffer by dispensing with the same.

The joint reading of Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and Rule 11 of the Religious Institutions (Lease of Immovable Property) Rules, 1963, it can be seen that any lease of immovable property belonging to the temple can be done only in accordance with the method provided in the Act. Therefore, when the Second Defendant, who is admittedly the Sub-Tenant under the First Defendant, who is the recorded Tenant as per the records of the temple has got no right to squat on the property without any right. Being the sub-lessee, he has got no right to maintain an Appeal independent of his lessor viz., the First Defendant.

The learned Counsel for the Appellant also contended that the Notices issued under Section 106 of the Transfer of Property Act is valid and legal as found by the Courts below. The First Respondent contended that the notice under Section 106, without giving six months time is invalid. Section 106 of the Transfer of Property Act lays down a rule of construction which is to apply when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. On a plain reading of Section 106 of the Transfer of Property Act, it is clear that the legislature has classified leases in two categories according to their purpose. Leases for agricultural or manufacturing purpose shall be deemed to be a lease from year to year and all other leases shall be deemed to be monthly. The Trial Court as well as the Appellate Court has found that the Notice issued under Section 106 of the Transfer of Property Act under Ex. A1 dated 21.12.2000 is valid. I see no reason to interfere with the said findings of the Courts below in that aspect.

The learned Counsel for the Respondents relied on Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which speaks about the ''Encroachment by persons on land or building belonging to Charitable or Religious Institution or endowment and the eviction of the encroachers''.

The learned Counsel for the Respondents also invited the attention to the definition of ''Encroacher'' as defined under Rule 2(b) of the Removal of Encroachments on Lands or Buildings belonging to Religious Institutions Rules.

The learned Counsel for the Respondents/Tenant also invited the attention to B. Shaji v. Sree Pravaraswamy Devasthanam, rep. by Its Hereditary Managing Trustee, C. Balaji, No. 20/7, III Street, Veerapandi Nagar, Choolaimedu, Chennai-94, 2010 (3) CTC 851, wherein in Paragraph Nos. 20 & 21, it has been held as follows:

"20. A conjoint reading of Sections 78, 79 & 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 will make it clear that a Suit by a Hindu Public Religious Institution for recovery of property of the Religious Institution cannot be straight away filed in a Civil Court. As provisions have been made for the removal of encroachment by the Joint Commissioner under Section 78, the bar provided under Section 108 of the Act will come into play to prevent a Suit being filed straight away in a Civil Court for the recovery of the property. A meek attempt was made by the learned Counsel for the Respondent/Plaintiff by raising a contention that Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was meant for evicting encroachers and not lessors, whose lease have been terminated. The Explanation appended to sub-section (1) of Section 78, shall be the fitting answer to the above said submission made by the learned Counsel for the Respondent. As per the explanation, the term "encroacher" shall include any person, who continues to remain in the property after the expiry or termination or cancellation of the lease, Mortgage or license granted to him. Therefore, it is quite obvious from clause (b) of the Explanation appended to Section 78(1) of the H.R. & C.E. Act, that a person, who continues to remain in the property after the termination of the lease also comes under the definition of "encroacher" for the removal of whom, the Joint Commissioner can pass an order under sub-section (4) of Section 78.

Since a specific provision has been made for the eviction of the encroacher, as rightly contended by the learned Counsel for the Appellant/Defendant, no Suit can be directly instituted in any Court of law except under and in conformity with the provisions of the Act, as per Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Apart from the provision for eviction of the encroacher, provisions have also been made under sub-section (5) of Section 78, for depositing the amount determined by the Joint Commissioner for use and occupation, pending disposal of the proceedings for eviction under the above said Section. Section 79(c), also provides for recovery of the amount due to the Religious Institution as if it were an arrears of land revenue. But the said Section provides a non-obstante clause that such recoveries can be made without prejudice to any other mode of recovery. A simple Suit for recovery of arrears of rent may be held not barred. But the present case has been filed for recovery of possession as the principal relief and the prayers regarding recovery of rent and damages for use and occupation are made consequential to the main relief. Pending the proceedings, entire arrears of rent has been collected. The recovery of damages for use and occupation depends upon the question of valid termination of the lease. Based on the alleged termination of lease, recovery of possession has been made by that lease. Principal relief and the prayer for mesne profit is made consequential to the said principal relief. Therefore, this Court comes to the conclusion that the contention of the learned Counsel for the Appellant that the Suit is not maintainable, as it has been straight away filed in a Civil Court for recovery of possession of the property, whereas provision for the same has been made in the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 under Section 78, has got to be countenanced."

To counter this, the learned Counsel for the Appellant/Temple had invited the attention to a decision reported in A.N. Kumar v. Arulmighu Arunachaleswarar Devasthanam, Thiruvannamalai, rep. by Its Executive Officer (Asst. Commissioner), Thiruvannamalai and 6 others, 2011 (2) LW 1, wherein the Division Bench of this Court has held as follows:

"43. When the temple has not chosen to go under the purview of the Act, then it cannot be said that the Suit is barred. In other words, it is for the temple to choose either the common law remedy by way of filing a regular Suit or invoke the provisions of the Act by approaching the Authorities concerned. When such an action is taken against an encroacher, it cannot be questioned on the ground of lack of jurisdiction. Because initiation of the action ultimately lies with the temple.

... ... ...

The decision to elect a particular procedure lies with the owner of the property, being the temple. Considering the object of the introduction of Chapter VII, which only demarcates the procedure for removing the encroachment by the Officers of the Department, we have no hesitation in holding that the said procedural law will not bar the filing of the Suit by the temple to recover and protect its own property.

Therefore, a reading of Sections 78 & 79, with the right available in seeking remedy under the common law would show that there is no inherent or implied inconsistency between the remedies provided therein. What would be the best course for the temple will have to be decided by the person in-charge. It is further to be seen that when the encroacher has been given a right to approach the Civil Court after an order has been passed by the Deputy Commissioner against him, there cannot be a bar for the temple to file a Suit. After all, the object sought to be achieved either under Sections 78 & 79 of the HR & CE Act or by filing the Suit is one and the same. Hence, the remedy sought for being one, the Suit filed on behalf of the temple is very much maintainable. After all, procedural law will have to make way for the substantial justice to be rendered between the parties.

In our considered view, in B. Shaji''s case, 2010 (3) CTC 851, the learned Single Judge has not correctly interpreted Chapter VII containing Sections 78, 79 & 80, and the learned Single Judge has not correctly laid down the law on the ejectment Suits filed by the temples and the Judgment in B. Shaji''s case, 2010 (3) CTC 851, would adversely affect the pending ejectment Suits filed by the temple and it would have the affect of paralysing the proper administration of the properties of the temple. In our considered view, the decision in B. Shaji''s case, 2010 (3) CTC 851, has not been rendered on proper interpretation of Chapter VII and the view taken by the learned Single Judge is not a correct view."

In view of the Judgment of the Division Bench over ruling the Judgment of the learned Single Judge above quoted, the Suit filed by the temple is maintainable.

The objection raised by the Appellant-Temple that against the Decree of the Trial Court, the First Defendant, who was the direct Tenant under the temple had not filed an Appeal. Only the Second Defendant, who is the Sub-Tenant filed the First Appeal. Therefore, the Appeal by the Sub-Tenant is not maintainable.

It can be seen that admittedly, the Second Defendant has got no jural relationship with the temple. The First Defendant alone is recorded as a Tenant and it is also admitted that the Second Defendant is claiming only under the First Defendant, who is the Chief Tenant. While so, when the First Defendant has not preferred any Appeal against the order of eviction, which is binding on both the Defendants, the Second Defendant, who is claiming under the First Defendant cannot maintain the Appeal. When the First Defendant is directed to vacate the premises, the persons claiming under him also should leave the property. As it is a settled law that no person can give a larger right than what he possess and if the First Defendant''s right of lease has come to an end, the Second Defendant, who is the sub-lessee cannot claim better right. His right is coterminous with the First Respondent''s right. The question of the Sub-Tenant, who has come into possession of the property without the consent of the original Landlord, would be a trespasser, encroacher in so far as the Landlord is concerned.

Merely because he has made a formal party to the proceedings for eviction, it does not clothe him with the right to challenge the Order of Eviction, which is passed against the principal Tenant or the Chief Tenant. Therefore, the Sub-Tenant cannot be termed as a person aggrieved.

The learned Counsel for the Appellant invited the attention to the similar law laid down in M. Munusamy Vs. Sri Vedantha Desikar Devasthanam and Others, , following Rupchand v. Raghuvanshi, AIR 1964 SC 1899, and Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and Others, , wherein in Paragraph No. 18(a), it has been held as follows:

"I have said that the Third Defendant, who is in the position of a sub-lessee cannot file an Appeal challenging the Decree for eviction. My conclusion is fortified by the following decisions:

In Rupchand v. Raghuvanshi: 1964 (2) SCWR 95, a Decree was passed ex parte against a Tenant. The sub-lessee was not a party. The question was, whether a sub-lessee can challenge the ex parte Decree on the ground that he was not made a party to the proceeding. He filed a separate Suit to declare that the earlier Decree obtained by the Landlord was not binding on him. In that case, their Lordships said thus:

Where the Landlord institutes a Suit against the lessee for possession of the land on the basis of a valid Notice to quite served on the lessee and does not implead the sub-lessee as a party to the Suit, the object of the Landlord is to eject the sub-lessee from the land in execution of the Decree and such an object is quite legitimate. The Decree in such a Suit would bind the sub-lessee. This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. The mere fact that the Defendant agreed with the Plaintiff that if a Suit is brought he would not defend it, would not necessarily prove collusion. It is only if this Agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded.

(Italics supplied)

This decision was followed by the Supreme Court in Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and Others, . In that case, owner of the land had executed a Lease Deed which permitted the head lessee to sub-lease the property also. Pursuant to that, the head lessee sub-let the property to Burmah Shell Oil Distributing Company, a Government of India Undertaking. Even after the expiry of the period, the sub-lessee continued to pay rent to the lessor. Later, the lessor issued a notice terminating the lease and also wanted the buildings to be removed. No notice was given separately to the sub-lessee. In that case, the owner made the sub-lessee also a party to the Suit. The head lessee did not contest. The Suit was decreed holding that there is a valid termination of lease. The sub-lessee was also directed to be dispossessed. On the above facts, the Supreme Court said:

It is quite clear that law does not require that the sub-lessee need be made a party, if there was a valid termination of the lease. In all cases where the Landlord instituted a Suit against the lessee for possession of the land on the basis of a valid Notice to quit served on the lessee and did not implead the sub-lessee as a party to the Suit, the object of the Landlord is to eject the sub-lessee from the land in execution of the Decree and such an objection is quite legitimate. The Decree in such a Suit would bind the sub-lessee."

The Second Defendant, who has filed the Written Statement has stated in Paragraph ''e'' of the Written Statement is as follows:

"As per the orders of HR & CE Commissioner''s Circular R.C. No. 65245/78/B4/dated 29.8.1978, the Executive Officer of the temple should recognise any transfer of lease hold right."

Stating so, the Sub-Tenant had made a claim that he is only a transferee of the lease of the Suit property and therefore, his right should be recognised by the temple.

Though such defence was taken before the Trial Court, no issue was framed in that regard and considered. Even before the Lower Appellate Court, no issue was framed to consider the above said G.O. Admittedly, the Defendants also had not produced any copy of the said G.O. That being so, the Lower Appellate Court based on the said G.O., had dismissed the Suit giving the findings as follows:

The above finding of the learned Appellate Judge is not correct as first of all, the said G.O., has not been produced before the Second Defendant. Secondly, no issue has been framed in this regard by the Trial Court as well as the Appellate Court. So without the issue being framed, dismissing the Suit based on the same is not sustainable and the same has to be set aside.

Challenging of Section 106 of the Transfer of Property Act-Notice by the Tenant has been held to be valid and correct. In view of the discussions above and the well settled principles, the Appeal filed by the Sub-Tenant without joining the Chief Tenant is not maintainable and the First Appeal ought to have been dismissed by the Lower Appellate Court. Though the procedure is prescribed under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, as per the Division Bench of this Court, it is open to the temple to choose the forum to evict the Tenant. In the result, the Second Appeal is allowed, setting aside the Judgment of the Lower Appellate Court made in A.S. No. 18 of 2005 on the file of the Principal Subordinate Judge, Kumbakonam and the Judgment of the Trial Court made in O.S. No. 24 of 2002 on the file of the Additional District Munsif Court No. 1, Kumbakonam is restored. No costs.