Madras High Court

Lakshmi vs Arulmigu Gangadeeswarar Temple on 24 November, 2021

                                                                             CMSA.Nos.4 & 6/2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 24.11.2021

                                                      CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                   CMSA.Nos.4 & 6/2019 & CMP.Nos.1364 & 2128/2019

                                                [Video Conferencing]

                    Lakshmi                                                   .. Appellant in
                                                                            CMSA.No.4/2019

                    V.Subramani                                               .. Appellant in
                                                                            CMSA.No.6/2019
                                                        Vs.

                    1.Arulmigu Gangadeeswarar Temple
                      Purasawalkam
                      represented by its Executive Officer
                      No.132, Gangadeeswarar Kovil Street.
                      Purasawalkam, Chennai 600 084.

                    2.R.Rajamani
                    3.V.Subramani                                              .. Respondents

in CMSA.No.4/2019

1.Arulmigu Gangadeeswarar Temple Purasawalkam represented by its Executive Officer No.132, Gangadeeswarar Kovil Street.

Purasawalkam, Chennai 600 084.

                    2.Lakshmi
                    3.R.Rajamani                                            .. Respondents
                                                                          in CMSA.No.6/2019


                                                                                 CMSA.Nos.4 & 6/2019

Prayer in CMSA.No.4/2019:- Civil Miscellaneous Second Appeal filed under Order 21 Rule 97 read with Section 100 CPC against the decree and judgment passed in AS.No.235/2016 on the file of the learned II Additional Judge, City Civil Court, Chennai, dated 16.07.2018 confirming the decree and judgment passed in EA.No.1621/2014 in EP.No.443/2004 in OS.No.3113/1988 on the file of the learned IX Assistant City Civil Court at Chennai dated 29.04.2016.

Prayer in CMSA.No.6/2019:- Civil Miscellaneous Second Appeal filed under Order 21 Rule 97 read with Section 100 CPC against the decree and judgment passed in AS.No.191/2016 on the file of the learned II Additional Judge, City Civil Court, Chennai, dated 16.07.2018 confirming the decree and judgment passed in EA.No.1621/2014 in EP.No.443/2004 in OS.No.3113/1988 on the file of the learned IX Assistant City Civil Court at Chennai dated 29.04.2016.

                                         For Appellant in both
                                         Appeals                :    M/s.N.Jothi
                                         For R1 in both Appeals :    Mr.A.K.Sriram
                                                                     for M/s.A.S.Kailassam
                                                                     Associates

                                                     COMMON JUDGMENT


                    (1)           These Civil Miscellaneous Second Appeals are filed by the

                                  respondents   in    EA.No.1621/2014    in   EP.No.443/2004      in

OS.No.3113/1988 before the City Civil Court, Chennai.

CMSA.Nos.4 & 6/2019

(2) The appellants in the present Appeals are in possession and

enjoyment of a property that belonged to the 1st

respondent/Temple, viz., Arulmigu Gangadeeswarar Temple.

(3) The 1st respondent filed a suit in OS.No.3113/1988 for eviction

against one Shankaran who was shown as the tenant under the 1 st

respondent/temple in respect of the suit property. The suit was

decreed on 06.01.2003 by directing the tenant to vacate and deliver

the vacant possession of the suit schedule property after removing

the superstructure put up by the said tenant. Thereafter, the 1st

respondent/temple filed EP.No.443/2004 to execute the decree in

OS.No.3113/1988. The Execution Petition was also allowed on

15.10.2009. When the Bailiff went to execute the warrant to

deliver, the suit premises was locked and it was reported by Amin

that the suit premises was occupied by one Lakshmi

W/o.Narashiman, R.Rajamanickam and V.Subramani. The said

Lakshmi is the appellant in CMSA.No.4/2019 and V.Subramani is

the appellant in CMSA.No.6/2019.

(4) Since the warrant could not be executed by the Bailiff, the Decree

holder/1st respondent herein filed an application in

CMSA.Nos.4 & 6/2019

EA.No.1621/2014 in EP.No.443/2004 in OS.No.3113/1988 to

order removal of obstructors by showing all the three persons who

were stated to be in possession and obstructing the delivery as per

Amin's Report.

(5) The application for removal of obstruction was contested by the

appellants herein on the ground that they are in lawful possession

for a long period. It is also stated that the suit itself was filed in the

year 1988 whereas the appellants herein are in possession from the

year 1978. Since the appellants/obstructors are in possession of

respective portions of the schedule mentioned property for more

than 35 years, it was contended that the 1st respondent/temple ought

to have impleaded the actual tenant who is in possession and

enjoyment of the property. Since the suit itself was filed without

impleading the obstructors, it is also contended that the suit itself is

bad for non-joinder of necessary parties and that the petition for

removal of obstruction is liable to be dismissed. Though the

obstructors repeatedly stated in their petition that they are in lawful

possession as tenants, the tenancy with precision is not pleaded in

the counter affidavit filed before the Trial Court or at the

CMSA.Nos.4 & 6/2019

subsequent stage of proceedings. Though it is admitted that the 1st

respondent/temple is the landlord of the entire premises, the

appellants herein have failed to take a definite stand as to the jural

relationship between them and the 1st respondent/temple.

(6) The Trial Court has given a specific findings with regard to the

main tenant under whom the appellants claim sub-tenancy.

Though it is not pleaded in the counter affidavit filed by the

appellants, it appears that the appellants have admitted that one

Krishnammal and thereafter, one Shankaran was the main tenant

and that the appellants were remitting the amount/rent to the

Shankaran and thereafter, to his legal heir, thereby admitting that

the demised premises was no let out to the appellants, but to the

defendant in the suit under whom the appellants claim sub-tenancy.

The Executing Court also gave a finding that the appellants are the

sub-tenants under the main tenant against whom the suit for

ejectment was filed.

(7) When the suit itself was filed against the chief tenant, the

appellants cannot have any independent right to be recognised on

par with the main tenant. The sub-lessee has no independent

CMSA.Nos.4 & 6/2019

leasehold right and therefore, it is settled that the decree against the

main or chief tenant is binding on the sub-tenant irrespective of the

fact whether he/she is impleaded as a defendant in the suit or not.

(8) Having admitted that the appellants are the sub-tenants under the

main tenant, they had no occasion to challenge the judgment and

decree in the suit in OS.No.3113/1988 as they have no defence or

independent right to resist the suit for ejectment. It is surprising to

note that the sub-tenants failed to implead themselves as parties in

the suit. From the way in which the counter affidavit is drafted in

the petition for removal of obstruction, this Court is able to see that

the appellants have suppressed the crucial facts relating to their

status as sub-tenants. Therefore, this Court is unable to presume

that the appellants herein had no knowledge about the proceedings

initiated by the 1st respondent/temple against the chief tenant

originally for ejectment.

(9) The contention of the sub-lessees/appellants herein that they are in

lawful possession can be accepted subject to other qualifications

with regard to their status. It is the contention of the appellant in

CMSA.No.6/2019 before the Executing Court that one

CMSA.Nos.4 & 6/2019

Kuruvammal is the original lessee. However, it is the contention of

the appellant in CMSA.No.4/2019 before the Executing Court that

one Krishnammal was the original lessee. The appellants produced

the receipt for payment of rent which was issued in the name of

Kuruvammal. The original lease was in favour of Shankaran and

the said Kuruvammal and Krishnammal are none but the persons

claiming under the original tenant. Under such circumstances, the

appellants if at all can be recognised as sub-tenants under the chief

tenant and they have no privity of contract or to claim independent

right as against the landlord.

(10) When eviction is ordered against the chief tenant, it is binding on

all the sub-tenants including the appellants herein. The receipts

produced by the appellants would only show that the 1st

respondent/temple, without prejudice to the decree that was granted

in the suit in OS.No.3113/1988, collected the money from persons

in possession of the property, for use and occupation. Therefore,

the status of the appellants as tenants was not recognised by the 1 st

respondent/temple so that the Court can acknowledge any right on

the appellants as tenants. The appellants have produced a few

CMSA.Nos.4 & 6/2019

documents to show that the appellants have earlier filed petitions

against main tenant for deposit of rent. Therefore, these

contentions in the grounds before this Court are contrary to the

documents filed before the Lower Court. Despite this Court

wanted the learned counsel for the appellants to produce the

documents, except the receipts no other document is produced to

substantiate their claim.

(11) It is well settled that the decree obtained against the main tenant is

binding on the sub-tenant. It is open to the sub-tenant to get

themselves impleaded at the appropriate time to contest the suit on

merits since they have cannot have independent defence at the

appropriate stage. Probably the appellants never bothered to

implead themselves as parties to the proceedings till the suit was

decreed in favour of the 1st respondent/temple as against the main

tenant. Having accepted the decree, the appellants have filed a

counter affidavit in the petition for removal of obstruction without

a specific plea as to their status with details particularly about the

jural relationship. Though they claim that they are tenants, it is not

stated in the counter affidavit that the tenancy pleaded by them was

CMSA.Nos.4 & 6/2019

under the 1st respondent/temple directly. They also did not

mention about the terms and conditions of the lease. It is to be

noted that the amount of rent payable by the appellants to the 1st

respondent/temple was not pleaded. The receipts produced by the

appellants themselves would show that the 1st respondent/temple

has never recognised the appellants as tenants under them. There

is no explanation whatsoever for all these inconsistencies. The

Trial Court was right in allowing the petition for removal of

obstruction after rejecting the plea and claim of the appellants.

(12) The order of the Trial Court was challenged before the learned II

Additional Judge, City Civil Court, in AS.Nos.191/2016 and

235/2016. The Lower Appellate Court also confirmed the order

passed by the Trial Court specifically holding that the appellants

have no independent right to claim tenancy under the 1st

respondent/temple. It is to be noted that the Lower Appellate

Court had gone through the evidence of RW1 and RW2 and the

pleadings of the appellants who are the obstructors in the

application for removal of obstruction.

CMSA.Nos.4 & 6/2019

(13) As pointed out earlier, the Lower Appellate Court also found that

there was no pleadings or evidence as to how the appellants came

into possession of the property of the 1st respondent/temple. The

vague averments in which the petition for removal of obstruction

was opposed would certainly indicate that the appellants had no

concrete case at any point of time either to have a defence in the

suit for ejectment or to resist the application for removal of

obstruction. The entire pleadings and evidence of the appellants

themselves prompted the Courts below to come to the conclusion

that the appellants/obstructors are in possession of the demised

premises as sub-tenants who are bound by the decree in the suit.

(14) The appellants have raised the following substantial questions of

law in the present Civil Miscellaneous Second Appeals:-

Substantial Questions of Law in CMSA.No.4/2019:-

i. Whether the First Appellate Court is correct in dismissing the appeal

when the lessee was not made a party to the suit?

ii. Whether eviction order obtained against a sub-tenant without

impleading the major tenant is maintainable to evict the sub tenant?

CMSA.Nos.4 & 6/2019

iii. Whether an order obtained against the sub-tenant is valid for

eviction of another sub-tenant of the same premises?

Substantial Questions of Law in CMSA.No.6/2019:-

(a) Whether the First Appellate Court is correct in dismissing the appeal

when the chief tenant was not made a party to the suit?

(b) Whether eviction order obtained against a third person without

impleading the chief tenant is maintainable to evict the sub tenant?

(c) Whether the decree obtained against the third person who is not a

tenant in respect of the scheduled mentioned property is valid for

eviction of another sub-tenant of the same premises?

(15) In the light of the factual findings rendered by the Courts below,

this Court is unable to find any substance in any of the substantial

questions of law. This Court is also unable to interfere with the

concurrent findings rendered by the Courts below, directing the

appellants for the removal of obstruction.

(16) In the result, the Civil Miscellaneous Second Appeals stand

dismissed confirming the decree and judgment dated 16.07.2018

passed in AS.Nos.235/2016 and 191/2016 by the learned II

CMSA.Nos.4 & 6/2019

Additional Judge, City Civil Court, Chennai, confirming the decree

and judgment dated 29.04.2016 passed in EA.No.1621/2014 in

EP.No.443/2004 in OS.No.3113/1988 by the learned IX Assistant