Sri Nageswaraswami Devasthanam vs N. Mahalingam and 28 others

A. Raman, J.—The suit has been filed by the appellant-Sri Nageswarasami Devasthanam, Kumbakonam for the possession of the suit

property. The suit was decreed in part by the District Munsif, Kumbakonam. An appeal was preferred against the same before the Subordinate

Judge, Kumbakonam in A.S. No. 102 of 1985. The Sub Judge, Kumbakonam allowed the appeal and dismissed the suit. Hence the second

appeal. The lower appellate court ought not to have been interfered with the judgment of the trial Court. The suit was filed against several

defendants for possession. The property is situate within the Municipal limits of Kumbakonam Town comprised in Town Survey Number 1553-1

& 1540 Acre/.56942 sq.ft. The plaintiff is the owner of the property. Originally the property was taken on lease for 1363, 1364 and 1365 falsies

by one Varadarajulu in 1956, the father of the first defendant for 15 years. As per the finding in A.S. No. 102 of 1985, the plaintiff filed a suit for

possession after terminating the tenancy. A notice was given on 8.7.1974 to defendants 2 to 35 in the suit who are sub tenants under the first

defendant. The first defendant contended that he was entitled to the benefits of Tamil Nadu Cultivating Tenants Protection Act as well as the City

Tenants Protection Act. The suit was originally dismissed by the trial Court holding that the first defendant was entitled to the benefits of City

Tenants'' Protection Act. An appeal was preferred by the plaintiff in A.S. No. 29 of 1982. The Sub Court held that there was no material to show

to which portion of the suit property, the first defendant could claim the protection and of which he is actually in possession and that the matter

cannot be decided and therefore, it was remanded back to the trial court. After remand, the trial court held that first defendant was entitled to only

portion marked as ''AH'' basing upon the commissioner''s report, Ex.C-2, therefore, with reference to that portion of the property alone, the

plaintiff''s suit was dismissed by the trial court. The trial court held that

The first defendant preferred an appeal against the decision of the Sub court and the Sub court in entirety dismissed the suit and thus the Second

Appeal has come above. The claim of the first defendant seeking protection under the Tamil nadu Cultivating Tenants'' Protection Act was

negatived. This decision was not challenged by the first defendant. The remand was only to find out the possession of the first defendant, so that his

claim for protection u/s 11 of the Tamil nadu City Tenants'' Protection Act can be considered. Therefore, when it has been held in A.S. No. 29 of

1982 that the 1st defendant was not entitled to the benefit of the Tamil nadu Cultivating Tenants'' Protection Act and When the decision has not

been challenged by the first defendant by preferring an appeal or by filing a revision as the case may be to the highest forum, it is not open to the

first defendant to agitate the same plea against. Nor it is open to the Sub Judge, to go into that question again. The Sub Judge was not justified in

considering that aspect again and therefore, his decision in that regard is beyond his power. Therefore, in that view of the matter, the judgment of

the appellate court in A.S. No. 102 of 1985 suffers from grave error. He has no jurisdiction to once again going into the question or decide the

same question which has been rendered against the defendant especially when first defendant has not challenged it. Further the first defendant

himself is estopped from raising that plea. It was not competent for the court to consider it again.

Even otherwise, the scope of the Act the Tamil nadu City Tenants'' Protection Act and the scope of Tamil Nadu Cultivating Tenants'' Act are

two different things. This has been highlighted by the decision of this court reported in Subbanna Gounder Vs. Karuna V. Elliah Chettiar, . It is not

open to the first defendant to contend that the property was taken for residential purpose and later on converted in to agricultural purpose. So also

it cannot be contended that it was originally taken as agricultural ease and later turned into house sites. For, in either case, the consent of the

landlord would be necessary and when the consent is not obtained, and it is not the case any such act would become an unauthorised one,

providing necessary ground for eviction of the tenant on that ground. Further, admittedly the property has been sub leased by the first defendant to

the other defendants and admittedly the sub lease was without permission or without the consent of the landlord. Therefore, even otherwise, the

defendant cannot claim the benefits under the provisions of Tamil nadu City Tenants'' Protection Act. Further there is neither any proof nor any

evidence to show that the first defendant and his family members contribute contribute their physical labour for the cultivation of the properties and

that it is the only source of income of the family. Therefore, in any view of the matter, the decision of the lower court that the defendants are entitled

to the benefits of the Tamil nadu Cultivating Tenants'' Protection Act is absolutely unwarranted and untenable. Now as regards the question of the

Tamil nadu City Tenants'' Protection Act, an amendment has been made to the Act by Act 3 of 1966. The object of this amendment is to exclude

religious institutions from the operation of the Act. Therefore, the Act will not apply to lands held by the temple. It further provides u/s 3 of the Act,

that every proceeding instituted by a tenant in respect of any land owned by any religious institution religious charity belonging to Hindu, Muslim,

Christian or other religion and pending before any court or other authority or officer on the date of the publication of this Act in the Tamil nadu

Government Gazette, shall, in so far as the proceeding relates to any matter falling within the scope of the principal Act as amended by this Act, in

respect of such land abate, and all rights and privileges which may have accrued to that in respect of any such land and subsisting immediately

before the said date shall in so far as such rights and privileges relate to any matter falling within the scope of the principal Act, as amended by this

Act shall cease and shall not be enforceable. Therefore, in view of the Act 2 of 1966 first defendant cannot claim any right much less under the

City Tenants'' Protection Act. The appeal itself was preferred by the tenant in A.S. No. 102 of 1985. It is not maintainable, in view of the

Government Order whereby all the proceedings pending or initiated by the tenant shall abate. In view of the G.O. appeal cannot be proceeded

with. The appeal ought not have been heard. Therefore, in such circumstances, on this ground as well the judgment of the lower court is liable to be

set aside. Therefore, I am satisfied on an analysis that the judgment and decree of the lower appellate court is untenable in law. It has failed to

consider the fact, that the first defendant would contend that his predecessor took the property for agricultural purpose, hence he cannot claim the

benefit of the City Tenants'' Protection Act. He has put the land to a different use namely, husbandry without landlord''s consent. It becomes

unauthorised usage, whereby on that ground he is liable to be evicted. The lower Court further erred in omitting to take note of the fact that in A.S.

No. 102 of 1985 it is clearly held that the defendant is not a cultivating tenant. The lower Court is not justified in Waking up the matter for

consideration, again, more so when the first defendant had not challenged that finding. When he has sub leased the property to the other

defendants and he is not in actual possession and he cannot claim benefits either under the provisions of the Tamil nadu Cultivating Tenants''

Protection Act or Tamil nadu City Tenants'' Protection Act. Even otherwise, in view of the Amendment Act No. 2 of 1996 and the Government

order passed thereunder, the proceedings i.e. appeal by the tenant would abate. It is a fit case, where the judgment of the trial court has to be set

aside. In the, result, this appeal is allowed with costs, setting aside the judgment and decree of the lower appellate at court and restoring that of the

trial court.