Sakunthala vs Arulmighu Kamatchi Amman Temple and Others

R.S. Ramanathan, J.—The first defendant in O.S. No. 72 of 2000 and the first defendant in O.S. No. 73 of 2000 and the legal

representatives of the sole defendant in O.S. No. 74 of 2000 on the file of the Principal District Munsif Court, Chidambaram, are the appellants

respectively in these Second Appeals. The respondents herein filed the suits for i) ejectment, ii) arrears of rent iii) for past and future mesne profits,

or, in the alternative, directing an enquiry for determination of future mesne profits.

The abovesaid three Suits were decreed by the Trial Court and the Appeal Suits filed in A.S. Nos. 43, 44 and 48 of 2011 and the Cross

Appeals, on the file of II Additional District Court, Cuddalore at Chidambaram, were dismissed by the Lower Appellate Court. Aggrieved by the

same, the present Second Appeals are

The respondents herein are the Trustees of the Temple, called ""Arulmighu Kamatchi Amman"", situate at Chidambaram and the appellants herein

have taken over the suit premises belonging to the respondent-Temple on lease, and by terminating the lease, the Suits were filed for ejectment and

other reliefs, as stated above.

The appellants have contended that they have put up superstructures at their own cost and they have not committed any default in the payment

of rent and they have not subleased the suit premises to any third party and the suit notice was not proper and they are entitled to the possession of

the suit premises.

The Trial Court on the basis of the oral and documentary evidence, held that the Suits were properly laid down and the respondents/plaintiffs

are entitled to recover vacant possession of the suit premises and also for past arrears and future mesne profits.

The learned counsel appearing for the appellants has submitted that the Trial Court, originally framed eight issues, and also framed additional

issue, and the fifth issue was, Whether the suit notice was proper or not? But, after the arguments were heard, without the knowledge of the

parties, the Trial Court has recast the issues and framed four issues afresh, without framing any issue regarding the validity of the suit notice,

especially, when the said issue was raised in the written statements and no opportunities were given to the appellants to put forth their contentions,

and therefore, the impugned judgments and decrees of the Courts below are liable to be set aside and the matters may be remanded to the Lower

Appellate Court for deciding the issue regarding the validity of the suit notice.

The learned counsel for the appellants further submitted that u/s 82 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, a

lessee is entitled to compensation, whenever he has been asked to vacate and handover vacant possession of the suit property and no findings

have been given regarding the compensation payable by the respondents, especially, when it is admitted that the superstructures were put up by the

appellants at their own costs and only vacant land was leased out to them. The learned counsel, therefore, submitted that the Courts below ought

to have considered the question of compensation and no enquiry was conducted in that regard. Hence, the cases have to be remanded to the

Lower Appellate Court for determining the compensation. The learned counsel further submitted that even as per the common law, a person, who

has put up construction on the lease hold property, is entitled to claim compensation, and therefore, the judgments and decrees of the Courts

below are liable to be set aside.

On the basis of the above submissions of the learned counsel for the appellants, the following Substantial Questions of Law arise for

consideration in these Second Appeals:--

i) Whether the notice of termination was valid? and

ii) Whether the Courts below erred in rejecting the request of the tenant for possession on the ground that Section 80 to 83 of the Tamil Nadu

Hindu Religious and Charitable Endowments will not apply to the respondent-Temple?

The learned counsel for the appellants vehemently argued that the Trial Court, having framed the issue regarding the validity of the suit notice to

quit initially, ought to have framed that issue even while recasting the issues and given a finding in that regard and the appellants did not give up that

issue during trial. Therefore, in the absence of any finding regarding the validity of the notice to quit, the judgments and decrees of the Courts below

are liable to be set aside and the matters may be sent to the Trial Court for fresh trial.

It is true that the appellants have raised the issue in their written statements that the notice to quit was not proper. It is the case of the

respondents that lease expired by efflux of time, and the appellants are continuing in possession of the land as tenants holding over and therefore,

there was no necessity to issue notice. Nevertheless, notice was given and according to the learned counsel for the appellants, even a lessee by

holding over is entitled to notice. Therefore, in the absence of any finding regarding the validity of the notice to quit, the judgments and decrees

passed by the Courts below are liable to be set aside.

Admittedly, notice was sent on 06.09.1999 and the lease in favour of the appellants is only a monthly lease and even assuming that the tenant

by holding over, is entitled to the suit notice and notice to quit was not valid in accordance with law in the sense that 15 days'' time intended in the

provisions of Section 106(1) of the Transfer of Property Act was not given, having regard to the fact that the suit was filed only in the month of

February 2000, the contention of the appellants that the notice to quit was not properly given, cannot be accepted. As per Section 106(3) of the

Transfer of Property Act, a notice under sub-section (1) shall not be deemed to be invalid, merely because, the period mentioned therein falls short

of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

As stated supra, notice was issued on 06.09.1999 as evidenced by Ex. A.3 and the Suits were filed in February, 2000 and therefore, having

regard to the provisions of Section 106(3) of the Transfer of Property Act, it is not open to the appellants to raise a plea that notice to quit was not

properly given. Hence, the first substantial question of law is answered against the appellants.

As regards the contention of the learned counsel for the appellants that the provisions of Section 82(1) of the Tamil Nadu Hindu Religious and

Charitable Endowments Act applies to the suit Temple and therefore, without any finding regarding the compensation payable to the appellants, the

judgments of the Courts below are liable to be set aside also, cannot be accepted. A reading of Section 82(1) of the Tamil Nadu Hindu Religious

and Endowments Act makes it clear that when an order is passed under Chapter vii of the said Act, by the Joint Commissioner, Deputy

Commissioner or Assistant Commissioner, directing the lessee or licensee to vacate and hand over possession of any land, the

lessee/licensee/mortgagee, who were directed to vacate and hand over possession shall be paid compensation, as determined by the Authorities

constituted u/s 83 of the said Act. In this case, no orders have been passed by the Authorities constituted under Chapter vii of the said Act and the

suit proceedings were initiated by the Trustees, after issuing suit notice and therefore, the provisions of Section 82(1) of the said Act, cannot be

applied to the facts of the case on hand and the second substantial question of law is also answered against the appellants.

The other contention of the learned counsel for the appellants that even as per the common law, the tenant is entitled to the compensation for

the superstructure put up in the leased hold property also, cannot be applied to this case, as in the present case, the appellants have put up the

superstructure, without the consent of the respondent-Temple, and therefore, the appellants are not entitled to any equity regarding compensation

for the superstructure put up by them. Considering all these aspects, the Courts below have rightly decreed the Suits and I do not find any infirmity

in the judgments and decrees of the Courts below. In the result, the Second Appeals are dismissed. No costs.