P.Murugaraju vs Arulmighu Tharakeswara Swamy ...
2023 Latest Caselaw 1719 Mad

                                                                               S.A.No.152 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 02.03.2023

                                                        CORAM

                                  THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                                 S.A.No.152 of 2023
                                             and C.M.P.No.4470 of 2023

                     P.Murugaraju                                            ... Appellant

                                                          Vs.

                     1. Arulmighu Tharakeswara Swamy Temple
                        Rep. by its Executive officer of
                           HR & CE Department,
                        Tharakeshwara Swamy Temple,
                        Thottapalayam, Vellore.

                     2. Babu                                                 ... Respondents

                     Prayer :- Second Appeal filed under Section 100 of C.P.C., to set aside the
                     judgment and decree dated 27.10.2022 on the file of the learned Principal
                     Subordinate Judge, Vellore in A.S.No.22 of 2020 confirming the judgment
                     and decree dated 27.09.2019, passed in O.S.No.178 of 2010 on the file of
                     the learned Additional District Munsif, Vellore.


                                        For Appellant       : Mr.S.Thiruvengadam




                     Page 1 of 10


https://www.mhc.tn.gov.in/judis
                                                                                       S.A.No.152 of 2023




                                                          JUDGMENT

This Second Appeal has been filed as against the judgment and

decree dated 27.10.2022, passed by the learned Principal Subordinate

Judge, Vellore, in A.S.No.22 of 2020, confirming the judgment and decree

dated 29.07.2019, passed by the learned District Munsif, Vellore, in

O.S.No.178 of 2010, thereby ordered recovery of possession.

2. The appellant is the second defendant in the suit filed by the

first respondent herein. The second respondent is the first defendant. For the

sake of convenience, the parties are referred to as per their ranking in the

trial Court.

3. The case of the plaintiff is that the suit property belongs to the

plaintiff temple and the first defendant is in occupation of the suit property

for the monthly rent of Rs.3,968/- and the said tenancy is oral one. During

the last week of January, 2010, the plaintiff came to know that the first

defendant sub-let the suit property to one Senthil and who was running

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

medical shop in the suit property for higher rent. Thereafter, the said Senthil

vacated the suit property and he had sub-let the suit property to third person.

The first defendant had no right to sub-let the suit property and the plaintiff

never gave any permission or consent to sub-let the suit property.

3.1. Further, the first defendant illegally caused damages to the

super structure and altered the structure of the suit property without the

consent and knowledge of the plaintiff. Thus, on 03.02.2010, caused notice

thereby terminating the tenancy of the first defendant. However, the first

defendant refused to receive the same. Thereafter, the plaintiff also caused

notice on 24.02.2010. On receipt of the same, the first defendant replied by

the reply notice dated 06.03.2010. Hence the suit.

4. The first defendant resisted the suit by way of filing written

statement and stated that he has not sub-let the suit property to any third

party. He is being a statutory tenant, he has got every right to remain in the

suit property. He is regular in payment of rent to the suit property and he

has not committed any default in payment of rent. The rent also duly

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

received by the plaintiff. In fact on seeing the advertisement in daily

newspaper on 24.09.2013, thereby calling upon the persons to effect name

transfer who are in possession and enjoyment of the temple properties under

the original tenants. Based on the advertisement, the first defendant had

given letter and requested the plaintiff to effect the name transfer in respect

of the suit property in the name of the second defendants. In fact, the second

defendant also submitted letter to the plaintiff to that effect.

5. The second defendant also filed written statement and stated

that as per the advertisement dated 24.09.2013, he also applied for name

transfer of the suit property in his name. However, it has not been

regularized so far by the plaintiff and it is pending. The plaintiff also

continue to receive rent from the second defendant and accepted him as

lawful tenant.

6. Based on the avernments made in the plaint as well as in the

written statement, the trial Court framed the following issues :-

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

“(i) Whether the plaintiff is entitled delivery

of possession relief from the defendants as prayed

for?

(ii) To what other relief?”

On the side of the plaintiff, they had examined P.W.1 and marked

documents in Ex.A.1 to Ex.A.12. On the side of the defendants, they were

examined D.W.1 to D.W.3 and no documents were marked.

7. On a perusal of oral and documentary evidences and after

hearing the arguments of the both sides, the trial Court decreed the suit as

prayed for. Aggrieved by the same, both the defendants preferred appeal

suits and same were dismissed by the the appellate Court by confirming the

judgment passed by the trial Court. Aggrieved by the same, the second

defendant filed the present Second Appeal.

8. In the present Second Appeal, the appellant raised the following

substantially question of law:-

(i) Whether the respondents are estopped

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

from denying the tenancy of the appellant after

inviting him to accept the tenancy by their own

advertisement?

(ii) Whether the respondents who were

collecting the rent after acceptance of the letter

can invoke action for eviction?

(iii) Whether under the Indian Evidence

Act the appellant is presumed to be the tenant in

view of the advertisement and the subsequent

letter for making tenancy is given?”

9. The learned counsel appearing for the appellant/second

defendant submitted that the plaintiff duly receiving the rent even till now

and accepted the tenancy of the appellant herein. Therefore, the suit itself is

nothing but clear abuse of process of law. In fact, after seeing the

advertisement, the appellant also applied to regularization of his tenancy and

it has not been considered so far and the request is pending with the

plaintiff/first respondent. Therefore, the eviction is not required, since the

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

first respondent accepted the tenancy of the appellant and also till receiving

monthly rent. He further submitted that the appellant herein invested huge

sum of money and carrying out his livelihood for the past several years and

therefore, non consideration of the above said facts has resulted in

miscarriage of justice. Hence, he prayed to allow this Second Appeal.

10. Heard Mr.S.Thiruvengadam, learned counsel appearing for the

appellant and perused the documents available on records.

11. On a perusal of records revealed that admittedly the suit

property owned by the plaintiff temple. Originally it was leased out in favour

of the first defendant. Thereafter it was sub-let to one Senthil and again the

suit property sub-let to the second defendant viz., the appellant herein.

Though the defendants denied the sub-let, they had admitted in the written

statement that after seeing the newspaper advertisement, requested the

plaintiff to regularize their tenancy with the plaintiff. It shows that the first

defendant was given lease in respect of the suit property and thereafter the

suit property was let out to the second defendant by the first defendant.

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

12. The first defendant was examined as D.W.1 and he

categorically admitted that he did not obtain any permission from the

plaintiff while renovating the super structure. He also admitted that the suit

property was let out to one Senthil to run a medical shop. Thereafter, it has

been let out to the second defendant. The plaintiff also marked Ex.A.10 &

Ex.A.11 ie., the applications submitted by the defendants.

13. On a perusal of the Ex.A.10 & Ex.A.11, it revealed that both

were submitted by the defendants, thereby requesting the plaintiff to effect

name transfer in the name of the second defendant, as tenant of the suit

property. Thus, it is clear that the second defendant was never inducted as

tenant by the plaintiff. However, the defendants failed to disprove the case of

the plaintiff by adducing oral and documentary evidence. Therefore, the

Courts below rightly allowed the suit and directed the defendants to vacate

the suit property and hand over the same to the plaintiff.

14. Hence, this Court finds no substantial question of law involved

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

in the present appeal and this Second Appeal is dismissed without being

admitted. The appellant and the second respondent are directed to hand over

the vacant possession of the suit property within a period of three months

from the date of receipt of a copy of this Order. However, the appellant is at

liberty to approach the plaintiff/HR&CE Department to regularize his sub-

let. Consequently, connected Civil Miscellaneous Petition is closed.

02.03.2023 Internet : Yes Index : Yes/No Speaking order/Non-speaking order

rts

To

1. The Principal Subordinate Judge, Vellore.

2. The Additional District Munsif, Vellore.

3. The Executive officer, HR & CE Department, Arulmighu Tharakeswara Swamy Temple Tharakeshwara Swamy Temple, Thottapalayam, Vellore.

https://www.mhc.tn.gov.in/judis S.A.No.152 of 2023

G.K.ILANTHIRAIYAN, J.

rts

S.A.No.152 of 2023 and C.M.P.No.4470 of 2023

02.03.2023

https://www.mhc.tn.gov.in/judis