Vanjiappa Goundar and Others vs Sri Kannika Parameswari Amman Kovil

Somasundaram, J.—S.A. No. 1968 of 1986: The defendant in O.S. No. 143 of 1978 on the file of the District Munsif of Pollachi is the

appellant in this second appeal. The plaintiff in the said suit is the respondent in this second appeal. For the sake of convenience the parties are

referred to by the nomenclature given to them in the respective suits.

The plaintiff filed the suit for recovery of possession of the suit property, for recovery of arrears of rent or damages and also for the recovery of

future rent or damages at the rate of Rs. 62 per month from 1.4.1978 till the date of delivery of possession. The case of the plaintiff-Devastanam is

as follows:

The plaintiff is the owner of the suit property represented by the present Managing Trustee, K. Parthasarathi Chettiar. The defendant took the suit

property from the then managing Trustee of the plaintiff-Devastanam on lease long ago on a monthly rental of Rs. 19 per every English Calendar

month. Subsequently the monthly rent was fixed at Rs. 62. The defendant is a tenant holding over under the plaintiff. The provisions of the Tamil

Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, hereinafter called the Act, do not apply to the suit property, because, it belongs to a

religious and charitable institution, the plaintiff-devastanam instituted proceedings against all the tenants for eviction on the ground of bona fide

requirement for demolition and reconstruction, under the Act. The defendant and all other tenants agreed to vacate, but, wanted a fairly long time

to vacate the premises. The same was conceded by the plaintiff and agreed to give three years'' time to the defendant and other tenants to vacate

the premises in their occupation and accordingly orders were passed in the Rent Control Petitions, by consent of parties. Subsequently, the judicial

pronouncements of this Court made the consent orders in executable and, therefore, the plaintiff was obliged to give a fresh notice of termination of

tenancy and filed fresh petitions before the Rent Controller, Pollachi for eviction. When the application for eviction was pending before the Rent

Controller in 1975 all buildings belonging to religious charitable institutions were removed from the purview and jurisdiction of the Rent Controllers

by the Government order in G.O.Ms. No. 2000. In those circumstances the plaintiff was constrained to file the above mentioned suit seeking the

reliefs, referred to above.

After setting out (in paras 3 to 16) the facts and the case of the plaintiff in S.A. Nos. 1969 to 1975 of1986, which were similar to S.A. No. 1968

of 1986, His Lordship proceeded as follows:

The defendant or defendants in the respective suit filed a similar written statement contending as follows: The suit temple is a private temple

belonging to the Arya Vaisya Community and is being managed by them. Though the suit property belongs to the plaintiff-temple, it is not a public

temple and, therefore, the plaintiff is not entitled to file the suit. The remedy of the plaintiff-devastanam if any is only to file a petition for eviction

before the Rent Controller under the provisions of the Act. The plaintiff-devastanam is not entitled to any exemption. There is no valid notice to

quit. The defendant is not liable to be evicted from the suit property.

The trial Court, on a consideration of the entire evidence on record both oral and documentary held that the plaintiff-temple is a public temple

coming within the purview of G.O.Ms. No. 2000 and that the suits for recovery of possession are maintainable. The trial court further held that the

tenancy has been properly terminated and there is no waiver, because, the plaintiff-devastanam received the rent subsequent to the issue of the

notice to quit only under protest. Consequently the trial court decreed all the suits. As against the judgments of the trial court, the respective

defendant or defendants filed separate appeals before the Sub-court, Udumalpet. The appellate court confirmed the findings of the trial court and

dismissed the appeal. Aggrieved by the judgments of courts below the defendant or defendants in the respective suits have filed the above second

appeals.

Mr. N. Thiagarajan, learned Counsel for the defendant/appellant, in the first place, would contend that the plaintiff-temple is not a public

temple, G.O.Ms. No. 2000 is not applicable to the plaintiff-temple and the civil court has no jurisdiction to entertain and try the suits and the

remedy available to the plaintiff is to file a petition for eviction under the provisions of the Act. There is no merit in the contention of the learned

Counsel for the appellant. In the Idol of Sri Kannika Parameswari Amman v. Educational Trustees Co. Ltd. (1990) 1 L.W. 291 a Division Bench

of this Court has held that the idol of Sri Kannikaparameswari Amman in a public religious and denominational institution belonging to Arya Vaisya

community and it is a religious public trust entitled to file a suit for recovery of possession of the suit property comprising of land and building and

for damages for use and occupation. Further, there is ample documentary evidence in the present case which goes to prove that the plaintiff-temple

is under the administration of the Hindu Religious and Charitable Endowment Department and the managing trustee is appointed by the said

Department. In view of the above position, it has to be held that the suit temple is a public religious institution belonging to Arya Vaisya community

and it is a religious public trust and, therefore, the provisions of the Act will not apply to the present case in view of G.O.Ms. No. 2000 and the

suits filed for recovery of possession of the suit property and for recovery of rent or damages are maintainable.

The second contention of the learned Counsel for the appellant is that the suits filed by the temple represented by the managing trustee alone

are not maintainable. According to the learned Counsel, in filing a suit, the plaintiff-temple must be represented by all the trustees of the suit-temple.

This contention of the learned Counsel cannot be countenanced, because, this point was not raised either before the trial court or before the lower

appellate forum or even in the grounds'' of Memorandums of the second appeals. The decision reported in Angappan v. The Commissioner, H.R.

& C.E., Madras 77 L.W. 604\ relied on by the learned Counsel for the defendant in support of his contention will not apply to the facts of the

present case, because, the said decision deals with an application filed u/s 101 of the Hindu Religious and Charitable Endowments Act, 1959.

The third contention of the learned Counsel for the defendant is that the plaintiff has accepted the rent from the defendant subsequent to the

issue of the notice to quit and after the termination of the lease and hence it constitutes waiver and a fresh tenancy has been created u/s 113 of the

Transfer of Property Act. There is no force in this contention also of the learned Counsel for the defendant, because, the evidence of P.W. 1

clearly shows that the rent was received subsequent to the termination of lease only under protest. The acceptance of the rent under protest by the

landlord after the issue of the notice to quit would not amount to giving up the right that has accrued to him to evict the tenant as a result of the

notice terminating the tenancy. Nor would such acceptance of rent under protest after issuing a notice to quit creates a fresh tenancy. In Basant Lal

(Dead) by Lrs and Others Vs. State of Uttar Pradesh, , the Supreme Court, dealing with the effect of accepting the rent under protest subsequent

to the termination of lease, approved the view of the High Court but as the rent was accepted by the landlord under pro test subsequent to the

termination of lease, it would not amount to waiver, because, there was no intention on the part of the lessor to treat the lease as subsisting.

There is no merit in the other contentions of the learned Counsel for the defendant that there is no proper notice to quit and that the tenancy has

not been properly terminated. The courts below have concurrently found on the basis of the evidence on record that there is a proper and valid

notice to quit and that the tenancy has been properly trminated. Both the courts have also, on the basis of evidence, rightly held that the arrears of

rent and the quantum of rent claimed by the plaintiff in the suits are not excessive. There is no infirmity in the judgments of the courts below,

because the findings of the courts below on all issues in favour of the plaintiff are based on evidence. There is absolutely no merit in the second

appeals and all the second appeals are liable to be dismissed. Accordingly, all the second appeals are dismissed. There will be no order as to

costs.

At this juncture Mr. N. Thiagarajan, the learned Counsel on behalf of the appellants prays time for vacating the premises. Three months'' time

is granted to the appellant in each appeal to vacate the premises on condition that the appellant in each case files an affidavit of undertaking on or

before 7.9.1990, undertaking to pay the entire arrears of rent and on further undertaking to deliver possession of the premises to the respondent

after the expiry of the period of three months from today, that is on or before 23.11.1990. Failureon the part of the appellant in each appeal to file

the affidavit of undertaking on or before 7.9.1990 will entitle the respondent to execute the decree for possession.