Madras High Court
P.V.Ramanujam vs D.Ayyavu (Died) on 18 October, 2022
S.A.No.1053 of 1992
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.10.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.No.1053 of 1992
Tholla Rajagopal Chettiar Trust,
By its Trustees,
1.P.V.Ramanujam
2.R.Jayadevan Chettiar
3.Eppur R.Krishnan ... Appellants/Appellants/Plaintiffs
Vs
1.D.Ayyavu (Died) ... Respondent/Respondent/
Defendant
2.A.Rathnambal (Died)
3.A.Balachandran
4.R.Prema
5.K.Anusuya
6.A.Padamanabhan
7.R.Shanthi
8.R.Kalyani ... Respondents 2 to 7
[R2 to R8 – brought on record as LRs of the deceased
respondent D.Ayyavu vide order dated 13.08.2003 made
in C.M.P.Nos.15488 of 2002 in S.A.No.1053 of 1992]
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 10.02.1989 made in A.S.No.118 of 1987 on
the file of the District Court, Tiruchirapalli confirming the judgment and
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S.A.No.1053 of 1992
decree dated 30.12.1986 made in O.S.No.2050 of 1981 on the file of the
District Munsif's Court, Tiruchirapalli.
For Appellants : Mr.C.Gangai Amaran
for the 1st Appellant
: Appellant 2 & 3 – Died
(Vide Court order dated 06.11.2020)
For Respondents : Mr.G.Vidhyamaheswaran
for RR3, 6 & 7
: No appearance for RR4, 5 & 8
: RR1 & 2 – Died
JUDGMENT
The plaintiffs are the appellants herein. They laid O.S.No.2050 of 1981 for
recovery of possession of the suit property from its tenant and for rental
arrears. The suit was dismissed and the first appeal too preferred by the
plaintiffs in A.S.No.118 of 1987 was dismissed. The plaintiffs preferred a
further appeal to this Court in S.A.No.1053 of 1992. It may be stated that
the plaintiffs are the Trustees and the lease in question is an oral lease of the
site in which the tenant/defendant had put up a residential building. For
narrative convenience, the parties would be referred to by their rank before
the trial Court.
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S.A.No.1053 of 1992
2. The plaintiff-Trust alleges that the defendant is a lessee of an area
measuring 15' x 15' in T.S.No.186/1 of the then K.Abishekapuram
Municipality, Trichy Taluk, and seeks eviction of the lessee, after issuing
Ext.A.9-Termination Notice, dated 25.02.1981. The plaintiff-Trust also
alleges that the lessee is in arrears of monthly rent of Rs.5/- for few years
prior to the institution of the suit.
3. The lessee has filed his written statement admitting the lease, but states
that it is a ground lease and he has put up his building and also disputes the
rental arrears.
4. This case along with two other similar cases filed by the plaintiff against
two other sets of lessees were jointly tried, and by a common judgment of
the trial Court dated 30.12.1986, the present suit came to be dismissed. The
line of reasoning of the trial Court is that the suit property is shown only as
a site and notwithstanding the fact that during trial the witness of the
plaintiff asserted title to the building, there is no evidence produced to
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S.A.No.1053 of 1992
establish that the building in the suit property belonged to the plaintiff-
Trust.
5. The plaintiff promptly took the matter in appeal to the first appellate
Court in A.S.No.118 of 1987 and the first appellate Court concurred with
the same. The plaintiff would now take up a second appeal in S.A.No.1053
of 1992 before this Court.
6. This Court vide its judgment dated 29.03.2006, allowed the appeal by
invoking the City Tenants' Protection (Amendment) Act, 1994 (Tamil Nadu
Act 2 of 1996) (hereinafter referred to as “the Act” for brevity), by which
the buildings put up by any tenants in any property belonging to any public
charitable trust or any religious institution are kept outside the purview of
the Act. Invoking the same, this Court has allowed the appeal. Aggrieved
by the same, the defendant/lessee took up the matter in appeal in C.A.No.
5135 of 2008 before the Hon'ble Supreme Court which vide its judgment
dated 19.07.2017, remanded the matter back to this Court. Paragraph 6 of
the order of remand dated 19.07.2017 reads as follows:-
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S.A.No.1053 of 1992
“6.The High Court did not go into the rights of the
appellants and straightaway decreed the suit.”
In essence, the Hon'ble Supreme Court has required this Court to go into the
merits of the contentions of the plaintiff-Trust.
7. When the appeal was allowed, this Court framed the following substantial
question of law:
“On facts and in the circumstances of the case and in view of
the Tamil Nadu City Tenants Protection (Amendment) Act,
1994 (Act 2 of 1996) exempting tenancy created by religious
charitable institutions from the purview of the Act, whether
the Courts below are right in dismissing the suit by holding
that the respondents are entitled to the protection under the
Tamil Nadu City Tenants Protection Act.”
8. This Court is informed by the learned counsel for the defendant/lessee
that no application under Section 9 of the Act has been filed. In terms of
Section 9 of the Act, an application by the tenant may have to be filed
within a period of one month from the date on which suit summons was
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S.A.No.1053 of 1992
served on him, or in the category of lessees falling under Section 2(4)(ii)(b)
of the Act, the same must be done within a period of two months. However,
since no application is stated to have been filed, this Court need not
investigate anything about the application of the Act to the case on hand.
Therefore, the substantial question of law already framed may not have any
contextual relevance. However, based on the submissions made by the
learned counsel for the plaintiff, this Court now frames the following
substantial question of law:
“Were not the Courts below in egregious error in dismissing
the suit for recovery of possession as regards the site in
relation to which the defendant is admittedly a tenant only on
the ground that the plaintiff has not proved title to the
building therein.”
9. Since both sides have instruction to address this Court on the substantial
question of law now raised (indeed the substantial question of law is raised
midway through the hearing which itself indicates that the parties knew that
substantial question of law involves), this Court proceeded to hear the
matter.
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S.A.No.1053 of 1992
10. Heard both sides on the substantial question of law.
11. It is very evident that the Courts below have misdirected their approach
to the cause before them. A lessor of a site is entitled to recover the site. If
the lessee had made any valuable improvements on the site, then the
obligation to pay the value of the improvements would depend on the terms
of the lease. Very unfortunately in the instant case, there is no written lease
to ascertain if the lessor would be under obligation to pay the value of
improvements. It now stands as an established fact that a concrete structure
is available in the suit property and it was put up by the tenant. And this
Court directs the plaintiffs to pay the value of the improvement to the
tenant.
12. So far as the remedy is concerned, the plaintiff will be entitled to
recover the suit property, but only on payment of value of the improvement.
So far as the obligation to pay the value of improvements to the lessee is
concerned, in the absence of a written agreement, this Court has to summon
its sense of justice, equity and good conscience to remedy the situation for
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S.A.No.1053 of 1992
the tenant. Therefore, to assess the value of the building, the matter is
remitted back to the District Court, Tiruchirapalli.
13. In conclusion, this Second Appeal is allowed and the judgment and
decree dated 10.02.1989 made in A.S.No.118 of 1987 on the file of the
District Court, Tiruchirapalli confirming the judgment and decree dated
30.12.1986 made in O.S.No.2050 of 1981 on the file of the District Munsif's
Court, Tiruchirapalli is set aside and the matter is remitted back to the
District Court, Tiruchirapalli, to assess the value of the building. Both the
parties are directed to appear before the District Judge, Tiruchirapalli on
02.11.2022. It is made clear that the plaintiff-Trust will be entitled to take
delivery of the property subject to it paying or depositing such value of
improvement as might be determined by the first appellate Court pursuant to
this judgment. No costs.
18.10.2022
Internet:Yes
Index:Yes/No
Note: Issue order copy on 19.10.2022.
abr
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S.A.No.1053 of 1992
To
1.The District Judge, Tiruchirapalli.
2.The District Munsif, Tiruchirapalli.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1053 of 1992
N.SESHASAYEE, J.
abr
S.A.No.1053 of 1992
18.10.2022
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