Second Appeal by legal representatives against dismissal regarding suit for possession. Court dismissed appeal, confirming that appellants failed to establish possession or unconditional title, and suit was maintainable.
Second Appeal dismissed with costs; Judgment and Decree of trial court and First Appellate Court confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 30.01.2019
DATED: 15.02.2019
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A. No. 1804 of 2000
PRAYER: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S.No. 143 of 1994 on the file of the II Additional Judge, City Civil Court, Madras, dated 23.11.1995 confirming that of the Judgement and Decree in O.S.No. 7903 of 1974 dated 10.03.1992 on the file of XIV Assistant Judge, City Civil Court, Madras.
JUDGMENT
The legal representatives of the deceased second defendant in O.S.No. 7903 of 1974 on the file of the 14th Assistant Judge, City Civil Court, Chennai, are the appellants herein.
“(a) Whether the learned Judge is right in interfering Ex.B-1 for rejecting the claim of the appellants, when admittedly the tenancy in favour of the second defendant has been recognized?;
(b) Whether the learned Judge is right in not considering the documents Exs. B-2 to B-6 to show that the second defendant was paying the rent to the plaintiff-Temple?;
(c) Whether the learned Judge has framed the points for determination in the first appeal as contemplated under Order 41 Rule 31 Criminal Procedure Code and as held in 1997(1) CTC 26?; and
(d) On the available facts, whether the plaintiff is entitled to a decree as prayed for in the suit.”
O.S.No. 7903 of 1974 - 14th Assistant City Civil Court, Chennai:
(ii) Whether the second defendant was entitled for protection under the Tamil Nadu City Tenants Protection Act;?;
(iii) Whether the suit is bade for non issuing of notice prior to three months before the date of institution of the suit?; and
B-6 receipts for payment of rent; Ex.B-7 certified copy of sale deed dated 18.09.1974; Ex.B-8 certified copy of sale deed dated 17.04.1957; Ex.B-9 certified copy of sale deed dated 29.03.1950; Exs. B-10 and B-11 rental receipts; and Ex.B-12 receipt for payment of property tax were marked.
A.S.No. 143 of 1994 – Second Additional Judge, City Civil Court, Chennai:
Second Appeal had been admitted on the following four substantial questions of law:-
“(a) Whether the learned Judge is right in interfering Ex.B-1 for rejecting the claim of the appellants, when admittedly the tenancy in favour of the second defendant has been recognized?;
(b) Whether the learned Judge is right in not considering the documents Exs. B-2 to B-6 to show that the second defendant was paying the rent to the plaintiff-Temple?;
(c) Whether the learned Judge has framed the points for determination in the first appeal as contemplated under Order 41 Rule 31 Criminal Procedure Code and as held in 1997(1) CTC 26?; and (d) On the available facts, whether the plaintiff is entitled to a decree as prayed for in the suit.”
1994 and C.M.A.No. 67 of 1994. A reading of the Judgment reveals that the entire pleadings have been extracted and the evidence has been discussed in length. Moreover, the points for consideration had also been framed and the second point for consideration was whether the appellant was entitled to purchase the property. This had been framed in view of the discussion relating to the issues raised in C.M.A.no. 67 of 1994. Consequently, I hold that the Judgment under Appeal does not suffer from any infirmity.
(1) ........ (2) The Executive Officer shall exercise such powers and discharge such duties as may be assigned to him by the Commissioner:
Provided that only such powers and duties as appertain to the administration of the properties of the religious institution referred to in sub-section(1) shall be assigned to the Executive Officer.
I must hold that the facts in the present case are totally different from the facts as stated in the said Judgment. It was held that the Executive Officer was therefore not the authority competent to initiate legal proceedings and it was only the Board of Trustees which was in existence at that time, which was competent to initiate the legal proceedings. In the present case, examining whether the Executive Officer had instructions to file the suit is an issue on fact. This fact should have been raised at the time of trial. Even though a point of law can be raised at the time of Second Appeal, it is trite to point out that law follows facts. The fact whether in the present case there was a body of trustee with respect to the plaintiff trust and whether the Executive Officer had been instructed to initiate the suit has never been dealt with by the Courts below. The issue was not raised. Since there is no finding on fact on that basis, it would be inappropriate on the part of this Court to non suit the plaintiff on this narrow ground. Consequently, I hold that the suit is maintainable as framed.
3 issues framed by the court
Whether the learned judge was right in interpreting Ex.B-1 to reject the claim of tenancy when tenancy was admitted?
Whether rental receipts Exs. B-3 to B-6 establish title to the second defendant?
Whether the suit is maintainable despite questions regarding the Executive Officer's authority to initiate proceedings?
Colour shows how this judgement treated each authority
Sri Arthanareeswarar of Tiruchengode Vs. T.M.MuthuswamyDistinguished¶17
2003-1-L.W. 386
3 provisions across 3 enactments
Krishnaveni
M. Bhanumathi
Yoganthimala
Premavathi
Arulmighu Sri Komaleeswarar Devasthanam
R. Srinivasan
C.V. Karthikeyan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
