Sambandam (deceased) and Others vs Sri Dharmapuram Adheenam

R. Subbiah, J.—The Second Appeal is directed against the decree and judgment dated 29.11.1996 passed by the learned Additional

Subordinate Judge, Mayiladuthurai, in A.S. No. 31 of 1995,whereby the decree and judgment passed by the learned District Munsif,

Mayiladuthurai, dated 13.01.1995 in O.S. No. 741 of 1993, were set aside.

Sri Dharmapuram Adheenam Madam, the Respondent herein, is the sole Plaintiff and they filed a suit in O.S. No. 741 of 1993 before the

District Munsif Court, Mayiladuthurai against the deceased 1st Appellant as the sole Defendant for a permanent injunction restraining the

Defendant from interfering with their peaceful possession and enjoyment of the suit property. The brief case of the Plaintiff was that they are under

the control of the Tamil Nadu Hindu Endowments & Religious Department and the suit property, namely, coconut thope belongs to them and as

per the rules governed by the HR & CE Department, they used to conduct auction for every three fasli years to collect the usufructs from the

coconut thope. During the fasli years from 1397 to 1399, the Defendant was given licence to collect the usufructs from the coconut thope and even

after that fasli year, the Defendant was given licence since nobody has come forward to participate in the auction to collect the usufructs from the

thope. Though the Defendant has not paid the lease amount properly to the Plaintiff, he was allowed to continue to collect the usufructs from the

suit property till the fasli year 1401 and from the fasli year 1402, the suit property was under the control of the Plaintiff and from 01.07.1992, the

Respondent had taken possession of the suit property. Hence, the Defendant has no right to collect the usufructs from the suit property. But, in

spite of that, the Defendant was interfering with the peaceful possession and enjoyment of the suit property. Hence, the Mutt filed the suit.

The Defendant (deceased 1st Appellant) filed a written statement stating that the suit property was in the possession of his father from the year

1946 and his father only planted the coconuts in the suit property and after his father, he is in possession of the suit property and hence, it is

incorrect to state that the Defendant was granted licence to collect the usufructs till the fasliyear 1401 and he never surrendered the possession of

the suit property to the Plaintiff. When the Plaintiff mutt asked him to give certain letters, he gave the same without knowing the contents of the

same. The Plaintiff is not entitled to the benefits under the Public Trust Act. The Plaintiff has not issued any notice terminating the lease of the

Defendant.

On the said pleadings, the trial court framed necessary issues and on the side of the Plaintiff mutt, P.Ws. 1 to 4 were examined and Exs.A-1 to

A-26 were marked and on the side of the Defendant, D. Ws.1 and 2 were examined and Exs.B-1 to B-6 were marked. The trial court, after

considering the entire evidence on record, both oral and documentary, had dismissed the suit. Against which, the Plaintiff mutt filed an appeal in

A.S. No. 31 of 1995 on the file of Additional Sub Court, Mayiladuthurai, wherein the decree and judgment of the trial court were set aside and the

appeal was allowed. Being aggrieved, the Defendant filed the second appeal. Pending second appeal, the sole Defendant died and his legal

representatives have come on record as Appellants 2 to 5.

At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration:

(1) Whether the lower appellate court erred in law in holding that the suit is maintainable when admittedly no notice was issued for termination of

the lease contrary to the decision of our High Court reported in 1977(90) L.W. 559 : 1977(2) MLJ 265 ?

(2) Whether the lower appellate court erred in law in holding that the Defendant was permitted to collect usufructs only in the year1987 despite the

overwhelming evidence such asExs.B-1 to B-6 which clearly trace the Defendant''s possession from the year 1946 ?

(3) Whether the Defendant is not entitled for notice even if he is only a licensee and the Plaintiff can take possession without recourse to law

contrary to the decision of the Supreme Court reported in M/s. Anamallai Club Vs. Government of Tamil Nadu and others,

(4) Whether the lower appellate Court erred in holding that the Plaintiff was in possession of the suit property on the date of suit despite the

admissions of P.W.1 who categorically admitted the possession of the Defendant

Learned Counsel for Appellants 2 to 5/legal heirs of the deceased Defendant submitted that the suit property was in possession of the father of

the deceased Appellant right from the year 1946 and as such, it is incorrect to state that only during the fasli year 1397, by way of auction, the

licence was given to the 1st Appellant to collect the usufructs from the coconut thope. In order to prove the long possession, on the side of the 1st

Appellant,Exs.B-1 to B-4 pertaining to the years 1946, 1952, 1961 and1972 were marked. These documents would go to prove that the

property was in possession of the 1st Appellant since1946. Under such circumstances, the case projected by the Respondent mutt as if the

property was in their possession after fasli year 1402 cannot be accepted. The learned Counsel further submitted that P.W.1 examined on the side

of the Respondent mutt had admitted the possession of the1st Appellant in the suit property and even assuming that the 1st Appellant was the

trespasser in the suit property, the proper remedy for the Respondent is only to file a suit for recovery of possession and instead of doing so, the

Respondent has filed the suit for injunction by falsely claiming as if they are in the possession of the suit property.

Per contra, the learned Counsel appearing for the Respondent/Plaintiff submitted that admittedly, the property belongs to them. Even assuming

that the Appellant was in possession of the property for a long time, the said possession was pursuant to the licence granted by the Respondent

mutt for plucking coconuts. From Ex.A-1, lease deed, marked on the side of the Respondent mutt, it is clear that the 1st Appellant was permitted

to pluck the coconuts from the trees in the suit property, but the licence will not create any interest over the immovable property and under such

circumstances, there is no need for the Respondent to file a suit for recovery of possession. When once the licence period is over, the possession

automatically comes under the control of the licensor. Therefore, there is no infirmity in the prayer sought for by the Respondent mutt for a

permanent injunction against the 1st Appellant. In support of his contention, the learned Counsel has relied on the decisions reported in Senniappa

Nadar v. T.R. Sarojini Ammal and Anr. 1996 1 L.W. 291, Govindaraja Vanniar v. Thirusanguvanniar 99 L.W.916 and Narayana Aiyangar, M v.

M.Chinnaswamy).

This Court has paid its anxious consideration on the submissions made by the learned Counsel on either side.

It is not in dispute that the suit property, the coconut thope belongs to the Respondent mutt. It is the case of the Respondent mutt before the trial

court that during fasli years 1397 to 1399, the licence was granted to the deceased Appellant to collect the usufructs from the coconut thope and

thereafter he was allowed to continue the same for two faslies 1410 and 1401. Thereafter, it was decided by the mutt to take the suit property

under their direct control. Accordingly, possession was taken by the Respondent Mutt on 01.07.1992. But after 01.07.1992, the date on which

the Respondent mutt took possession of the suit property, the Appellant was interfering with their peaceful possession and enjoyment of the suit

property and as such, they filed the suit for injunction.

Per contra, it is the case of the Appellants that the suit property was in possession of the father of the Appellant from 1946 and after him, it

came into the possession of the 1st Appellant. Before the trial court, the deceased Appellant had taken a defence that the coconut trees were

planted by his father and they were inoccupation of the subject thope as a cultivating tenant. Hence, the proper course for the Respondent was to

file a suit for recovery of possession and not for injunction as against the Defendant.

Though, before the trial court, the 1st Appellant had taken a plea of cultivating tenant, in this appeal the learned Counsel for the Appellants

submitted that Exs.B-1to B-4 marked on the side of the 1st Appellant would go to show that they were in possession from the year 1946. Under

such circumstances, even if the possession of the 1st Appellant was in the capacity of a trespasser, the proper remedy for the Respondent mutt has

to file a suit only for recovery of possession and not for injunction projecting the case as if the suit property is with the possession of the mutt.

Countering the said submission, the learned Counsel for the Respondent submitted that even if there was a long possession, that possession

was pursuant to the licence granted by the Respondent mutt and the licence will not create any interest over the suit property. Therefore, once the

licence period is over, the possession automatically comes into the hands of the person, who granted the licence.

In view of the submissions made by the learned Counsel on either side, the questions that arise for consideration are,

(1) Whether the possession of the deceased 1st Appellant in the suit property was in the capacity of licence or lease granted by the Respondent

mutt ?

(2) Whether the admission made by P.W.1 with regard to the possession of the deceased Appellant in the suit property is in reference to actual

physical possession or possession based on a licenceto collect the usufructs from the suit property ?

The learned Counsel for the Appellants heavily relied upon Exs.B-1 to B-4 to support their case that they were in possession of the property

from 1946. But, a perusal of those documents shows that they are only the receipts issued by the Respondent mutt in respect of coconuts handed

over to them and hence, those documents, in my view, will not be helpful in any way to the case of the Appellants to come to the conclusion that

the actual physical possession was given to the 1st Appellant''s father either by way of lease or in the capacity of cultivating tenant. On the other

hand, the documents would only show that the 1st Appellant was allowed to collect the usufructs from the thope. Therefore, it is clear that the

actual physical possession of the suit property had never been in the hands of the deceased Appellant pursuant to the licence granted by the mutt.

Under such circumstances, I am not inclined to accept the submission made by the Appellants that the proper course for the Respondent is to file a

suit for recovery of possession. In this regard, it would be useful to refer the judgments relied on by the learned Counsel for the Respondent. In

1996 1 L.W.291 (supra), it has been held that the right to collect the produce of the trees is not a lease and is only a licence.

In 2001 3 L.W. 687 (supra), it has been held as follows:

The intention of the parties is the ultimate test to find out as to what was given by the owner. It is already found that the Defendant had not made

out a case that there was an oral agreement between him and the father of Plaintiffs 1 to 3, that he could also raise crops in the suit land. This is a

factual finding which sitting under Second Appeal, it is not possible to interfere with. Even if the Respondents have appeared and contested, this

factual finding would not have been disturbed. Consequently the finding that what was permitted was only the right to pluck coconuts from the

trees in the topes stands and by no stretch of imagination could it be said that there was a lease created in respect of the suit land

In the instant case also, the evidence on record would show that what was given to the Defendant by the Respondent mutt was only the right to

pluck the coconuts from the trees in the thope. Therefore, the question of creating interest over the immovable property, namely, the land, does not

arise in this case of licence. Such being the position, the question of filing the suit for recovery of possession does not arise.

Though a submission was made by the learned Counsel for the Appellants that there was an admission made by P.W.1 with regard to the

possession of the 1st Appellant in the suit property, a perusal of Exs.B-1 to B-4, the documents filed on the side of the deceased Appellant with

regard to the coconuts handed over to the Respondent mutt, would show that the evidence of P.W.1 with regard to the possession of the

Defendant in the suit property should be only in pursuance of the permission granted by the Respondent mutt to collect the produce from the

coconut hope and under such circumstance, the said admission will not be helpful to the case of the Appellants in any way. Therefore, I do not find

any infirmity in the finding arrived at by the lower appellate court in reversing the decree and judgment of the trial court and in my view, no question

of law, much less, substantial question of law is involved in this appeal.

For the reasons stated above, the second appeal fails and the same is dismissed. No costs.