Allowed

Arulmighu v. Kamalavadivelu

Madras HC3 Mar 2021SA/940/2008

Case brief

AI extract

What is this about?

In second appeals regarding suit for possession of temple property, the High Court set aside lower court decrees upholding a 'paguthi' tenancy. Ruling that resolution lacked sanction required by the HR & CE Act and disclosed no valid terms, the Court held the defendant was occupying as a license holder whose permission was rightfully revoked.

What did the court decide?

Second appeals allowed; impugned judgment and decree set aside; trial court suit decreed for recovery of possession; future mesne profits to be claimed via separate proceedings.

Arulmighu Vs Kamalavadivelu — Property and Title | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 17.02.2021

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PRONOUNCED ON : 03.03.2021

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CORAM

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THE HONOURABLE MR. JUSTIC E T.RAVINDRAN S.A.Nos. 940 and 941 of 2008

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Arulmighu Dakshinakokarneeswarar Koil Temple Pulivalam; Rep. by the Executive officer of the A/M. Venkatachalapathy Temple Pulivalam

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...Appellant on both the the appeals Vs.

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Kamalavadivelu S/o. Thiruchitrambalam ... Respondent in both the appeals.

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Prayer: Second Appeals are filed under Section 100 of CPC, 1908 against the judgment and decree dated 26.04.2004, made in |A.S.Nos.74 and 76 of 2002, on the file of the Subordinate Court at Tiruvarur, confirming the judgment and decree dated 30.07.2002, made in O.S.No.30 of 2002, on the file of the District Munsif court at Tiruvarur.

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For Appellant : Mr. Srinath Sridevan in both appeals For Respondent : Mr. B. Ramamoorthy in both appeals

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COMMON JUDGMENT

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Challenge in these second appeals are made to the judgment and decree dated 26.04.2004, passed in A.S.Nos.74 and 76 of 2002, on the file of the Subordinate Court, Tiruvarur, confirming the judgment and decree dated 30.07.2002, passed in O.S.No.30 of 2002, on the file of the District Munsif court, Tiruvarur.

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2.For the sake of convenience, the parties are referred to as per their rankings in the trial court.

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The plaintiff in O.S.No.30 of 2002 is the appellant in the Second Appeal.

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4.Suit for possession and future mesne profits.

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https://hcservices.ecourts.gov.in/hcservices/

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The case of the plaintiff, in brief, is that suit property belongs to the plaintiff's temple and enjoyed by the plaintiff and the defendant without any entitlement had encroached into the suit property during October 2000 and put up the thatched house and in this connection, a police complaint had also been lodged against the defendant and thereafter, the plaintiff issued a legal notice on 12.01.2001 calling upon the defendant to hand over the possession of the suit property and the defendant sent a reply containing false allegations and it is false to state that the suit property had been leased out to the defendant as put forth in the reply notice and it is further false to state that the defendant was working as the collection maniam of the plaintiff's temple and the Executive Officer had removed him from the service and further stated that the defendant is only a trespasser qua the suit property and no permission had been given to the defendant to put up the superstructure in the suit property and further is stated that the defendant had given a letter to the plaintiff dated 13.10.2000 agreeing to vacate the suit property without any protest and he having failed to adhere to the abovesaid terms, according to the plaintiff, it has been necessitated to lay the suit for appropriate reliefs.

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The defendant resisted the suit contending that the claim of the plaintiff that the defendant had encroached into the suit property during October 2000 and put up the thatched house illegally is totally false and after admitting the claim of the title of the plaintiff to the suit property, according to the defendant, the plaintiff was unable to collect the rent from the lessees and paguthi of the various properties belonging to the plaintiff's temple and accordingly with a view to collect the rent and paguthi from the various tenants and paguthitharars, based on the resolution passed by the trustees of the plaintiff's temple, the defendant was appointed as the collection maniam and on that basis the defendant and another maniam who had also been appointed as the collection maniam had been allotted 5 cents of land in the suit survey number for putting put up the house construction and accordingly based on the abovesaid resolution, the defendant had put up the superstructure in the suit property and enjoying the same by paying the tax, etc., and the documents available with the plaintiff would go to disclose that the defendant was working under the temple as the collection maniam and the Executive Officer had destroyed the attendance register unlawfully with a view to buttress the case of the plaintiff one way or the other and the claim of the plaintiff that the defendant had agreed to vacate the suit property by handing over a letter dated 13.10.2000 is false and the said letter had been obtained from the defendant forcefully by the plaintiff and the paguthi arrangement of the defendant had not been lawfully terminated and the defendant sent a proper reply to the legal notice sent by the plaintiff https://hcservices.ecourts.gov.in/hcservices/ and the defendant is not a trespasser qua the suit property

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and therefore, the suit is liable to be dismissed.

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In support of the plaintiff's case P.W.1 was examined and Exs.A1 to A5 were marked. On the side of the defendant, D.W.1 was examined and Exs.B1 to B8 were marked.

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On a consideration of the oral and documentary evidence adduced in the matter and the submission made by the respective parties, the trial court was pleased to hold that the plaintiff is not the paguthitharar of the suit property under the plaintiff's temple and that he is in the occupation of the same owing to the permission granted by the plaintiff's temple and however, the plaintiff's temple having failed to revoke the permission in accordance with law, on that basis, proceeded to dismiss the plaintiff's suit. Aggrieved over the judgment and decree of the trial court, both the plaintiff and the defendant had preferred separate appeals. The first appellate court, on an appreciation of the materials placed on record and the submissions put forth by the respective parties, was pleased to hold that the defendant is only a paguthitharar and occupied the suit property based on the paguthi arrangement entered into with the plaintiff's temple and on that determination, dismissed the plaintiff's appeal and allowed the appeal preferred by the defendant. Impugning the same, the second appeals have been preferred by the plaintiff's temple.

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At the time of admission of the second appeals, the following substantial questions of law were formulated for considerationin the second appeals.

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1. "Whether the recommendation for the grant of licence which is subject to the approval of the joint Commissioner (HR & CE) can give rise to a lease, even de hors such approval.

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1. Whether the recommendation for lease granted by the Trustees of the temple can give rise to valid the lease in the absence of formal documents embodying the terms of the lease namely, rent, term of lease and condition of the default, can be valid?

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1. In a suit for recovery of possession, when the temple's title is admitted and that the defendant has no valid tenancy in existence, whether the suit can be dismissed on the ground of the failure of the plaintiff to prove the allegation in the pre-suit?"

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The suit has been laid by the plaintiff for the recovery of possession of the suit property and for future mesne profits. The defendant has not disputed the title of the plaintiff to the suit property. Thus it is found that when the defendant has admitted the title of the plaintiff to the suit property and when the plaintiff seeks for the recovery of the possession of the suit property from the defendant, unless and until the defendant establishes his https://hcservices.ecourts.gov.in/hcservices/ claim of retention of the suit property in the manner known to

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law, he is bound to deliver the possession of the suit property to the plaintiff. Now according to the plaintiff, the defendant is only a trespasser and intruded into the suit property unlawfully. On the other hand, the defendant would put forth the case that he had been appointed as the collection maniam by the plaintiff's temple and in recognition of the same, was permitted to occupy the suit property and put up the house construction and only on that basis put up the house construction and subsequently he had been sacked by the Executive Officer and therefore, put forth the case that he is not the trespasser and on the other hand, enjoying the suit property on paguthi arrangement as above stated and therefore, the plaintiff is not entitled to seek the recovery of the possession of the suit property from the defendant by way of the present suit. In other words, according to the defendant, without terminating the paguthi arrangement of the defendant lawfully, the plaintiff is not entitled to secure the possession of the suit property.

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From the materials placed on record, particularly, the evidence of P.W.1, examined on behalf of the plaintiff, it is found that the resolution had been passed by the plaintiff's temple appointing the defendant as the collection maniam and only on that basis, the defendant had been permitted to occupy the suit property. However, as rightly concluded by the trial court, on the basis of the resolution marked as Ex.B5, the paguthi arrangement projected by the defendant could be accepted. On a perusal of Ex.B5 resolution, as concluded by the trial court, there is nothing pointing therein allowing the defendant to put up the superstructure. If Ex.B5 resolution is to be construed as a paguthi arrangement, as held by the trial court, there should be further materials contained therein as to what are the terms of the paguthi arrangement, namely, the duration of the paguthi, the terms of the paguthi arrangement and the conditions to be adhered to in the default of the payment of paguthi, etc. On the other hand, nothing has been disclosed in Ex.B5 pointing the resolution of the temple as to the entering of the paguthi arangement by the plaintiff's temple with the defendant. In such view of the matter, the determination of the trial court that the claim of the defendant that he has occupied the suit property on paguthi arrangement cannot be believed, in my considered opinion, do not warrant any interference.

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Per contra, the first appellate court, on the basis of Ex.B5 resolution, had proceeded to hold that it is only the paguthi arrangement and therefore, the defendant is not liable to be vacated from the suit property except under due process of law and on that premise, the first appellate court holding that the legal notice sent by the plaintiff had not lawfully terminated the paguthi arrangement, accordingly, proceeded to dismiss the plaintiff's suit by holding that the defendant' https://hcservices.ecourts.gov.in/hcservices/ possession of the suit property is lawful.

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As rightly contended by the plaintiff's counsel, when the resolution marked as Ex.B5 has not pointed to any paguthi arrangement said to have been entered into between the plaintiff and the defendant, particularly, when the duration and the terms of the paguthi arrangement are not disclosed in the resolution Ex.B5, if the finding of the first appellate court is to be accepted in toto, it would lead to the position that the defendant had been inducted as a paguthitharar of the plaintiff's temple qua the suit property for an indefinite period and when the plaintiff is not entitled to grant lease or paguthi qua the suit property to anyone contrary to the provisions of Section 34 of the HR & CE Act, without the approval of the appropriate authority, namely, the commissioner of HR & CE and when the defendant has not placed any material to show that the so called paguthi arrangement said to have been given to him by the plaintiff's temple had been sanctioned by the commissioner or the Assistant Commissioner of HR & CE, the finding of the first appellate court that the defendant had been inducted into the suit property only on paguthi arrangement, as such, cannot be accepted in any manner.

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From Ex.B5 resolution, it could only be inferred that the plaintiff had been allowed to occupy the suit property and when the period of paguthi and payment of paguthi, etc., had not been disclosed in the same and as above pointed out, the sanction of the authority concerned has also not been secured as per HR & CE Act, in such view of the matter, the occupation of the suit property by the defendant, as held by the trial court, could only be deemed on the permission or licence granted by the plaintiff's temple or not otherwise.

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In the light of the abovesaid discussions, when the defendant has not placed any material worth acceptance that he is occupying and enjoying the suit property as the paguthitharar of the plaintiff's temple and though Ex.B5 resolution would point to his possession of the suit property based on the permission/licence given by the plaintiff's temple, as rightly contended by the plaintiff's counsel, the permission/licence given by the plaintiff's temple could be revoked at any point of time by the plaintiff at will as the plaintiff is admittedly being the owner of the suit property. In such view of the matter, as rightly contended by the plaintiff's counsel, when the plaintiff had issued the legal notice calling upon the defendant to surrender the possession, the legal notice should be construed only as the revocation or the termination of the permission/licence granted to the defendant under Ex.B5 resolution. The defendant having failed to surrender the possession of the suit property thereafter, his occupation of the suit property could only be deemed as the occupation of the trespasser and in such view of the matter, the plaintiff, being the absolute owner of the suit property, it is found that the plaintiff is entitled to https://hcservices.ecourts.gov.in/hcservices/ recover the possession of the suit property as per law and

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resultantly the plaintiff's suit for the recovery of possession of the suit property should have been upheld by the courts below. On the other hand, they seem to have dismissed the plaintiff's suit on some untenable reasons and conclusions.

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On a reading of the reasonings and conclusions of the courts below, they seem to have focused on the plea projected by the plaintiff that the letter had been given by the defendant dated 13.10.2000 voluntarily promising to surrender the possession of the suit property. Though the plaintiff had failed to establish that the said letter marked as Ex.A5 had been given by the defendant on his own, even otherwise when the defendant has failed to establish his right to occupy the suit property despite the recovation of the permission/licence granted to him by the plaintiff's temple under Ex.A3 legal notice, the truth or validity of Ex.A5 letter should not have been given much importance by the courts below for declining the reliefs sought for by the plaintiff.

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Equally, the reasonings of the courts below that the plaintiff's claim of the defendant being only the trespasser being found to be belied by Ex.B5 resolution, on that premise also, the courts below had proceeded to reject the plaintiff's case. No doubt, the plaintiff has termed the defendant's occupation of the suit property as that of a trespasser in the legal notice. However, as above pointed out, when the title of the plaintiff to the suit property is not disputed and when the defendant has failed to establish the paguthi arrangement said to have been entered into between the plaintiff's temple in accordance with law and when Ex.B5 resolution had not buttressed the case of the defendant qua the alleged paguthi arrangement and the resultant position being that the defendant's occupation of the suit property is only on the permission/licence granted by the plaintiff's temple and the same having been revoked by the plaintiff's temple under Ex.A3 legal notice, the allegation of the plaintiff in the legal notice that the defendant is only the trespasser and the failure of the plaintiff to establish the said version put forth in of Ex.A5 letter,by themselves, would not be a ground to decline the reliefs sought for by the plaintiff particularly when the plaintiff's title to the suit property has not been disputed by the defendant.

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If the reasoning of the first appellate court that Ex.B5 resolution point to the paguthi arrangement entered into with the defendant on the part of the plaintiff's temple, when the same would only result in the paguthi arrangement of the defendant run for an indefinite period and such an arrangement being found to be totally against the provisions of HR & CE Act and when no approval or sanction had been given by the appropriate authority pointing to the same as contemplated https://hcservices.ecourts.gov.in/hcservices/ under the Act, in all, it is found that the reasonings and

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conclusions of the courts below for dismissing the plaintiff's suit are only based upon the improper appreciation of the materials placed on record, both on factual matrix as well as on the point of law and accordingly we could only term them as perverse, illogical and irrational and resultantly, they are liable to be set aside in toto. The defendant having failed to establish the paguthi arrangement qua the suit property as projected by him in accordance with law and when the title of the plaintiff's temple to the suit property has been clearly admitted and no valid paguthi arrangement is in existence between the plaintiff's temple and the defendant and particularly the same not having the sanction of the appropriate authority under HR & CE Act, all put together, the substantial questions of law formulated in this second appeal are accordingly answered in favour of the plaintiff and against the defendant.

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In conclusion, the judgment and decree dated 26.04.2004, passed in A.S.Nos.74 and 76 of 2002, on the file of the Subordinate Court, Tiruvarur, confirming the judgment and decree dated 30.07.2002, passed in O.S.No.30 of 2002, on the file of the District Munsif court, Tiruvarur, are totally set aside and resultantly, the suit laid by the plaintiff in O.S.No.30 of 2002 is decreed as prayed for with costs. The plaintiff is directed to work out its remedies qua the future mesne profits by way of a separate proceeding as per law. Accordingly, both the second appeals are allowed with costs. Consequently, connected, miscellaneous petition, if any, is closed.

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Sd/-

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Assistant Registrar(CS V)

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//True Copy// Sub Assistant Registrar

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bga

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1.The Subordinate Court, Tiruvarur

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2.The District Munsif court, Tiruvarur

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3.The Section Officer,

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VR Section, High Court, Madras.

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+1 cc to Mr.Srinath Sridevan , Advocate Sr.NO. 13630

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+1 cc to Mr.B.Ramamurthy, Advocate Sr.NO. 14156

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S.A.Nos.940 and 941 of 2008

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SS(CO)

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A.SK(31/03/2022)

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https://hcservices.ecourts.gov.in/hcservices/

Arulmighu v. Kamalavadivelu

Case brief

What is this about?

What did the court decide?

Arulmighu v. Kamalavadivelu

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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