Madras High Court

A.Velayutha Thevar(Died) vs Incorporated And Unincorporated ... on 10 November, 2021

                                                                             S.A.(MD)No.651 of 2021


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 10.11.2021

                                                     CORAM:

                        THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

                                             S.A.(MD)No.651 of 2021
                                                     and
                                           C.M.P.(MD)No.8707 of 2021

                     A.Velayutha Thevar(Died),
                     Muthukutty,
                     S/o Velayutha Thevar                 ... Appellant/ Appellant / Defendant


                                                        Vs.

                     Incorporated and unincorporated Devaswoms,
                     Suchindrum,
                     Represented by its
                     Executive Officer/Deputy Commissioner,
                     Suchindrum,
                     Suchindrum Village,
                     Agastheeswaram Taluk,
                     Kanyakumari District.             ... Respondent / Respondent / Plaintiff

                     PRAYER : Second Appeal filed under Section 100 of Civil Procedure
                     Code, against the judgment and decree, passed in A.S.No.36 of 2014, dated
                     04.04.2019, on the file of the Principal District Court, Kanyakumari at
                     Nagercoil, confirming the judgment and decree passed in O.S.No.239 of
                     2010, dated 28.02.2014, on the file of the Second Additional Sub Court,
                     Nagercoil and allow the above Second Appeal.



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                                                                                S.A.(MD)No.651 of 2021




                                  For Appellant          : Mr.V.P.Rajan
                                  For Respondent         : Mr.H.Thayumanaswamy


                                                     JUDGMENT

The appeal is directed against the judgment and decree,

passed in A.S.No.36 of 2014, dated 04.04.2019, on the file of the Principal

District Court, Kanyakumari at Nagercoil, confirming the judgment and

decree passed in O.S.No.239 of 2010, dated 28.02.2014, on the file of the

Second Additional Sub Court, Nagercoil.

2.For the sake of convenience, the parties are referred to as, as

described before the trial Court.

3.The plaintiff has filed the suit for eviction of the defendant

from the plaint schedule property and for recovery of possession along with

mesne profit at the rate of Rs.20,000/- per annum, from the date of plaint till

the date of plaintiff gets recovery of possession and for cost.

4.The case of the plaintiff, as per the averments made in the

plaint, in brief, is that Banam Thitta Devaswom, Theroor, which is included

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and under the control of management of the plaintiff. The suit property,

measuring an extent of 4 acres and 36 cents of coconut grove, is situated in

Old Survey No.3319 A and B and 3320 of Theroor Village. The defendant

was granted licence as he was the highest bidder in an official auction held

on 21.05.1997 and the licence period was fixed from 01.07.1997 to

30.06.2000. After obtaining licence, the defendant had been taking income

from the coconut trees in the suit schedule property, till the expiry of licence

period. The defendant's brother one Nagalinga Thevar was also a successful

bidder with regard to the adjacent land. Both of them have filed, as plaintiffs

filed a suit before the District Munsif Court, Nagercoil, in O.S.No.308 of

2000, claiming cultivating tenant protection and the same was decreed in

favour of them. Against which, the plaintiff preferred an appeal in A.S.No.

125 of 2004 in which the first appellate Court held that the defendant can be

evicted through due process of law and Cultivating Tenant Protection aCt is

not applicable to them. Hence, the suit is filed for evicting the defendant

from the Suit Property.

5.The suit was resisted by the defendant interalia contending

that the area comprised in R.S.No.3320 of Theroor Village belong to the

plaintiff's Devaswom, whereas, all the cocoanuts trees were planted and

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nurtured by the defendant and his father Arumuga Nainar Thevar. The

allegation that the defendant obtained license to the suit property in the

public auction on 27.06.1997 is absolutely false. According to the

defendant, his father Arumuga Nainar Thevar sunk a well in the land and

got power connection in his name on 20.03.1961 and made efforts to

convert the barren land into Thoppu. According to the defendant, the said

Arumuga Nainar Thevar received a notice from the Superintendent of

Devaswom, directing him to appear before the Superintendent for the

registration of lease deed with an intention to induct another person. Hence,

the defendant's father instituted a suit in O.S.No.119 of 1972, before the

District Munsif Court, Nagercoil, seeking permanent injunction and the

same was negatived. Aggrieved over the same, the defendant's father filed

A.S.No.202 of 1976, before the Subordinate Court, wherein also, the prayer

sought for him was negatived. Hence, he preferred second appeal S.A.No.

1377 of 1977, before the this Court. While so, the said Arumuga Nainar

Thevar died and his son/the defendant herein and the defendant in other suit

in O.S.No.69 of 2005 were impleaded as additional respondents in the

Second Appeal. This Court remanded the matter to the Subordinate Court,

Nagercoil, on a technical ground. Since the defendant herein and his elder

brother were shown as lessee of the aforesaid property, they had not shown

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any interest to proceed with the matter. Therefore, the appeal was dismissed

for default. According to the defendant, if the plaintiff is very particular to

evict the defendant and to knock away the leasehold right of the defendant,

he is entitled to get compensation from the plaintiff. There is no cause of

action and the suit is liable to be dismissed as not maintainable.

6. The plaintiff, in support of his case, before the trial Court,

examined himself as P.W.1 and no document was marked in his side. On the

side of the defendant, one Muthukutty and Kalaiselvi were examined as

D.W.1 and D.W.2 and marked 37 documents as Exs.B1 to B37 and also

marked a Photo copy of Lease Register as Court Document Ex.C1.

7. Upon considering the evidence adduced on either side, the trial

Court, decreed the suit in part and directed the defendant to delivery

possession of property to the plaintiff within the period of two months from

the date of Judgment.

8. Aggrieved by the Judgment and Decree of the trial Court, the

defendant preferred an appeal in A.S.No.36 of 2014, on the file of the

learned Principal District Judge, Kanniyakumari District, Nagercoil,

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whereas, the plaintiff has preferred a Cross Appeal.

9. The first appellate Court, after framing necessary points for

consideration, by relying upon the documents referred to, accepting the

findings of the trial Court, dismissed the Appeal Suit filed by the defendant

and allowed the cross appeal preferred by the plaintiff.

10. Against the concurrent findings of the Courts below, the

defendant, filed the present Second Appeal before this Court.

11. In the memorandum of Second Appeal, the defendant sought

to raise the following substantial questions of law, for consideration before

this Court?

1. When the right defendant is protected under the Special Enactment ie. Tamil Nadu Cultivating Tenants Protection Act 1955, the trial Court, whether can entertain the sit proceedings initiated by the respondent/plaintiff?

2. When there was no material evidence to substantiate claim of the plaintiff that the suit property was given under license during 1997 to 2020, the findings of the Courts below is whether legally sustainable in law?

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3. Whether the trial court has jurisdiction to entertain the suit, when the lease is registered under the Tamilnadu Cultivating Tenants Protection Act, 1955 before the competent Authority and can the trial Court oust jurisdiction of revenue Court under the Special Act.?

12. The learned counsel appearing for the appellant / defendant

would submit that the Courts below have failed to take note of the

deposition of P.W.1, who is the Executive Officer of the Plaintiff

Devaswom, who clearly deposes that he has no knowledge about possession

and enjoyment of the suit schedule property by defendant's father ever since

1951 and against the appellant / defendant herein. The suit schedule

property leased out to defendant's father, by name, Arumuga Nainar, in the

year 1951, as barren land and the same was converted into a coconut grove,

after spending a very huge amount by the plaintiff's father only. The

Tenancy Register maintained by the Revenue Authorities and protection

available under the Tamil Nadu Cultivating Tenants Protection Act, 1955 to

the defendant and jurisdiction of civil Court is barred, which the court

below failed to consider. The Court below failed to appreciate the

deposition of D.W.2, Village Administrative Officer, who categorically

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deposed that the lease was registered under the Revenue Department, in the

light of Tamilnadu Cultivating Tenants Protection Act, 1955. The plaintiff

has not even marked a single document in support of their case, whereas,

the defendant marked as many as 35 documents to establish his case.

Without considering all those facts, the first appellate Court simply

dismissed the suit, by confirming the Decree and Judgment of the trial

Court, which has to be interfered to meet the ends of justice.

13. The learned counsel appearing for the respondent / plaintiff

would submit that the Banam Thitta Devaswom, Theroor, which is under

the control of management of the plaintiff. The suit property, measuring an

extent of 4 acres and 36 cents of coconut grove, is situated in Old Survey

No.3319 A and B and 3320 of Theroor Village. The defendant was granted

licence as he was the highest bidder in an official auction held on

21.05.1997 and the licence period was fixed from 01.07.1997 to 30.06.2000.

After obtaining licence, the defendant had been taking income from the

coconut trees in the suit schedule property, till the expiry of licence period.

The defendant's brother one Nagalinga Thevar was also a successful bidder

with regard to the adjacent land. Both of them, as plaintiffs, filed a suit

before the District Munsif Court, Nagercoil, in O.S.No.308 of 2000,

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claiming cultivating tenant protection and the same was decreed in favour of

them. Against which, the plaintiff preferred an appeal in A.S.No.125 of

2004, in which the first appellate Court held that the defendant can be

evicted through due process of law and Cultivating Tenant Protection Act is

not applicable to them. Hence, the suit is filed for evicting the defendant

from the Suit Property. Inviting the attention of this Court, the learned

counsel appearing for the respondent/plaintiff would submit that the

question of cultivating tenant will not arise in this case, as the property

belongs to Hindu Religious and Charitable Endowment, which is a public

Trust, exempted from Cultivating Tenant Protection Act. The learned

counsel would further submit that the Courts below, on appreciating the

evidence on record correctly rendered the Judgments in favour of the

plaintiff and there is no reason to interfere with the same. Hence, the

learned counsel prayed for dismissal of the Second Appeal.

14. I have carefully considered the submissions made by the

learned counsel for the appellant / 1st defendant and the learned counsel for

the 1st respondent / plaintiff and perused the materials on record.

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15. It is not in dispute that the Banam Thitta Devaswom, Theroor,

is under the control and Management of the plaintiff. The suit property,

measuring an extent of 4 acres and 36 cents of coconut grove, is situated in

Old Survey No.3319 A and B and 3320 of Theroor Village. The defendant

was granted licence as he was the highest bidder in an auction held on

21.05.1997 and the licence period was fixed from 01.07.1997 to 30.06.2000.

After obtaining licence, the defendant had been taking income from the

coconut trees in the suit schedule property, till the expiry of licence period.

The defendant's brother one Nagalinga Thevar was also a successful bidder

with regard to the adjacent land. Both of them have filed a suit before the

District Munsif Court, Nagercoil, in O.S.No.308 of 2000, claiming

cultivating tenant protection and the same was decreed in favour of them.

Against which, the plaintiff preferred an appeal in A.S.No.125 of 2004 in

which the first appellate Court held that the defendant can be evicted

through due process of law and Cultivating Tenant Protection Act, is not

applicable to them. Hence, the suit is filed for evicting the defendant from

the Suit Property.

16. According to the plaintiff, in the case on hand, the question of

cultivating tenant will not arise in this case, as the property belongs to

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Hindu Religious and Charitable Endowment, which is a public Trust,

exempted from Cultivating Tenant Protection Act. According to the

defendant, in the tenancy register maintained by the Revenue Authorities,

the defendant name has been registered as tenant and therefore, the

defendant is having protection available under the Tamil Nadu Cultivating

Tenants Protection Act, 1955. Ex.B1 and B2 are the Judgments of the

courts below, in the earlier round of litigations. In the said Judgments it has

been specifically held that the plea of cultivating tenant is not available to

the defendant and he can be evicted under due process of law. Admittedly,

against the said finding and Judgment, no appeal has been preferred by the

defendant. So even if the defendant is taken as a cultivating tenant and he is

a lessee, he is bound to surrender his possession, after the period of lease.

The defendant did not deny the fact that his period was expired in the year

2000 and after that, he did not pay any pattam or licence fee to the plaintiff

Devaswom. Exs.B24 and B25 receipts would shows that the amount was

received only towards licence fee alone. When the defendant failed to pay

the licence fee in the subsequent period, he is liable to vacate the premises

of the suit property. Even, when the first appellate Court posed a question to

the plaintiff's counsel, whether the suit is maintainable or not as per Section

108 of Hindu Religious and Charitable Endowment Act, the learned counsel

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relied upon the judgment of this Court in (2011 MLJ 230) (A.N.Kumar

Vs.Arulmighu Arunachaleswarar Devesthanam, Thiruvannamalai), in

which, a Division Bench of this Court summarise the conclusion as under:-

 So far as the suits filed by the temple for eviction of tenants/licensees/lessees/mortgagees for filing of the ejectment suit, the Civil Court's jurisdiction is not barred. The decision to approach civil court or invoke the provisions of H.R & C.E, Act vests with the Temple.

 In cases of encroachers, temple authorities can either resort to the provisions under Sections 78, 79, 79-A, 79-B or to approach the Civil Court. The decision to elect a particular procedure lies with the owner of the property, being the temple.  In view of the express bar under second proviso to Section 79, insofar as the suits by the encroachers/lessees/licensees/mortgagees, the bar under Section 108 will get attracted exception in instances specifically stated in the Ist proviso to Section 79.

Insofar as the mesne profits is concerned, the trial Court rightly found that

the plaintiff is entitled to mesne profits, which can be arrived at separate

proceedings.

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17.In the light of the above discussions, this Court is not

inclined to interfere with the concurrent findings of the Courts below.

Moreover, the Hon'ble Apex Court has held that the second appeal can be

dismissed at the admission stage itself, even without formulating a

substantial question of law, if none arises was reiterated. This is one such

case and therefore, in the light of the narrative discussions, this second

appeal is liable to be dismissed, at the admission stage itself, holding that no

question of law much less a substantial question of law arises for