S. Valaguruswami Nadar and Others vs K.V. Anthappan and Others

Srinivasan, J.—The second appeal No. 1912 of 1985 arises out of a suit for recovery of possession filed by the respondents herein. He purchased the suit property from Sri Kapaleeswarar temple under Ex. A1, dated 26.10.1974. He filed the present suit alleging that the 4th defendant, who is the appellant in the second appeal is a trespasser,. Defendants 5 and 6 claimed to be sub-tenants under the 4th defendant. The plaintiff claimed that he having purchased the property for valuable consideration was entitled to recovery of possession from defendants 4 to 6, who according to him, had no right to be in possession. The 4th defendant raised several contentions including a claim of title by prescription. It is not necessary to refer to those contentions as they have not been urged before me by the learned counsel for the appellant. One of the contentions urged before the courts below and now placed before me is that the 4th defendant was a lessee under one Mr. Vedachalam, who was a lessee of the temple and that the sub-lessee, the 4th defendant, cannot be treated as a trespasser, and a suit for eviction on that basis cannot be maintained.

The trial court granted a decree for possession holding that the 4th defendant was only a trespasser. In appeal, the lower appellate Court held that the 4th defendant was a sub lessee under Mr. Vedachalam, who was the lessee of the temple and that he was not a trespasser. However, the lower appellate Court confirmed the decree for possession in favour of the plaintiff. The reason for such confirmation is not quite clear from the judgment as such. The net result is that there is a concurrent decree for eviction against the appellant though the judgments are varying.

The learned counsel for the appellant pointed out that there was a prior suit O.S. 6829 of 1973 filed by the temple against she present appellant. Vedachalam, the lessee of the temple and the present respondent. In that suit the temple prayed for relief of bare injunction restraining the appellant herein from putting up any construction on the suit property. That suit was resisted by the appellant herein on the ground that he was a lessee under Vedachalam who was a lessee under the temple. Though Vedachalam, who was the defendant in that suit contended in the written statement that the property in possession of the appellant herein was nor the same as that purchased by the respondent herein, in the course of evidence given in that suit, Vedachalam admitted that the appellant herein was a sub-lessee with reference to the suit property. The deposition of Vedachalam is marked as Ex. B8 in the present case. It is seen from his evidence that he got the permission of the temple for letting the property to a sub-lessee. He also deposed that he did not give possession to the temple and that the temple had not taken any proceedings for evicting him. However, he admits that he gave a letter to the temple to the effect that he had surrendered. This is relied upon by learned counsel for the respondents to prove that Vedachalam had surrendered his tenancy in favour of the temple and that he is no longer on the scene. It is also submitted by learned counsel for the respondents that Vedachalam surrendered his tenancy prior to the purchase by the respondent on 26.10.1974. Even though there is no specific evidence with regard to the date of surrender, I will accept it to be so and proceed on that footing. Even if the surrender was prior to the purchase of the property by the respondent, the resulting position would be that after the surrender, the temple could have been entitled to recover rent from the appellant herein by virtue of the provisions of S. 115 of the Transfer of Property Act. S. 115 of the Transfer of Property Act reads--

The surrender, express or implied, of immovable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease, but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.

It is seen therefrom that when a lessee surrenders his lease the under lessee becomes liable to pay the rent to the lessor and as per the terms between the principal lessee and the under-lessee and it is enforceable by the lessor. Consequently, the temple who was the lessor could have proceeded against the appellant herein for recovery of rent or for enforcement of other terms of his contract with Vedachalam.

The respondent, having purchased the property from the temple, stands in the shoes of the temple vis-a-vis the appellant. His only remedy is to determine the tenancy of the appellant and take proceedings for eviction. On the other hand, the respondent has chosen to file the suit alleging that the appellant is a trespasser without issuing any notice of termination to the appellant. Consequently, this suit is not maintainable. If the respondent chooses to do so he can terminate the tenancy of the appellant and take proceedings for eviction. He cannot get the relief of possession in the present suit. The decrees of the courts below directing the appellant to deliver possession to the respondents are therefore set aside. The Second Appeal No. 1912 of 1985 is allowed. There will be no order as to costs.

S.A. 1913 and 1914 of 1985 arise out of O.S. 2597 of 1980 filed by the first respondent in S.A. 1913 of 1985 who is the only respondent in S.A. 1914 of 1985. That suit is for recovery of damages at a sum of Rs. 9,000. The basis of this suit is also that the appellant herein is a trespasser. As I have as held in S.A. 1912 of 1985 that the appellant is not a trespasser and that the stands in the position of a lessee, vis-a-vis the respondent, the appellant will be liable to pay only rent and not damages. The rent payable by the appellant is only Rs. 50 per mensem. The trial court granted damages at the rate of Rs. 50 per mensem. Now that it is held that the appellant is liable to pay only rent, there will be a decree for a sum of Rs. 1,800 in favour of the plaintiff calculated at the rate of Rs. 50 per mensem. To that extent, the two appeals S.A. 1913 and 1914 of 1985 are allowed. There will be no order as to costs.