Madras High Court
M.Subramaniam vs The Special Commissioner And ... on 21 September, 2023
W.A. No.967 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.09.2023
CORAM :
THE HON'BLE MR. SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.A. No. 967 of 2021
1. M.Subramaniam
2. K.Mani
3. S.Loganathan
4. P.Valpoorappan (died)
5. K.Saraswathi
6. V. Vijaya
7. Shankar
8. Sandeep
[Appellant nos. 6 to 8 brought to
record as Legal Representatives of
the deceased Fourth Respondent
vide order dated 15.06.2022 in
C.M.P.No.8939 of 2022.]
... Appellants
-vs-
1. The Special Commissioner and Commissioner
Of Land Administration
Chepauk, Chennai-5.
2. The District Collector
Coimbatore District
Coimbatore.
3. The District Revenue Officer
Coimbatore District
Coimbatore.
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W.A. No.967 of 2021
4. The Tahsildar
Palladam Taluk
Palladam, Coimbatore District.
5. The Executive Officer
Arulmigu Mahaliamman Temple
Palladam, Coimbatore District. ... Respondents
Prayer:- Appeal under Clause 15 of the Letters Patent against the
order dated 02.02.2021 passed in W.P. No. 38670 of 2005 by the
learned Single Judge.
For Appellants : Mr.P.V.S.Giridhar
Senior Counsel
Mr.P.R.Krishnaraj
For Respondents : Mrs.R.Anitha, SGP (RR1 to 4)
Mr.R.Rajesh Vivekananthan
Deputy ASGI (R5)
JUDGMENT
(Judgment of the Court was made by P.D. AUDIKESAVALU, J.)
This intra-Court appeal invoking Clause 15 of the Letters
Patent, 1865, arises out of the order dated 02.02.2021 in W.P.
No. 38670 of 2005 passed by the Learned Single Judge of this
Court.
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W.A. No.967 of 2021
2. The parties are hereinafter referred as per their description in
the said Writ Petition for the sake of clarity and convenience.
3. We have heard Mr. P.V.S.Giridhar, Learned Senior Counsel
assisted by Mr.P.R.Krishnaraj, Learned Counsel for the Appellants;
Mrs.R.Anitha, Learned Special Government Pleader for the First to
Fourth Respondents; and Mr.R.Rajesh Vivekananthan, Learned
Counsel for the Fifth Respondent.
4. The facts leading to the filing of the Writ Petition have been
extensively captured in the order dated 02.02.2021 in W.P.
No. 38670 of 2005 and hence, the same are not repeated in this
order except with regard to the material facts relevant for the
purpose of disposal of this Appeal.
5. The Fifth Respondent is a Temple governed by the Tamil Nadu
Hindu Religious and Charitable Endowments Act (hereinafter
referred to as 'the TNHRCE Act' for short) and claimed ownership of
the land that had been classified as 'Natham Poramboke' in the
revenue records maintained by the Government, measuring an
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extent of 0.41 cents at S.F. No. 261/B1, Palladam, Coimbatore
District relying on the certificate of possession dated 11.04.1973
issued by the Tahsildar, Palladam. Several persons including the
First to Fifth Petitioners were carrying on business in the premises
bearing Door Nos. 170-D, 170-B, 170-C, 170-A and 162, 261/B1
and 262/3 forming part of the said land with whom the Fifth
Respondent had entered lease. The claim of the Fifth Respondent for
re-classification of the land from 'Natham Poramboke' to 'Kovil
Poramboke' had been rejected by the Additional Collector,
Coimbatore in his Proceedings dated 26.04.1992 and the revenue
authorities were directed to consider the claim of all persons
(including the First to Fifth Petitioners) for assignment by following
the existing rules. The said order was challenged by the Fifth
Respondent before the Commissioner for Land Administration,
Chennai, who had by Proceedings in D.Dis.F3/50495/92 dated
13.11.1995, confirmed that order. The Fifth Respondent as well as
the First to Fifth Petitioners were unsuccessful in assailing the said
orders passed by the Revenue Authorities in the Writ Petitions in
W.P. Nos.17164 of 1995 and 10320 of 1996 which were disposed by
common order dated 21.01.2002 passed by this Court. However, as
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the Fifth Respondent had not established its title to that property,
this Court had observed in the said order that the Fifth Respondent
cannot recover any rent from the First to Fifth Petitioners in respect
of the shops under their occupation with the clarification that while
considering the status of those parties, the Revenue Authorities
would have to give due weightage to the long uninterrupted
possession of the Temple, which has been approved by the
Tahsildar, Palladam over the claim of the First to Fifth Petitioners.
Subsequently, the District Collector, Coimbatore in his Proceedings
dated 24.05.2004 in Na.Ka. 78055/ 99/ A3 upheld the claim of the
Fifth Respondent for grant of patta for the entire extent of land of
0.41 Acres of land in S.Nos. 261B/2 and 262/3 (page 48
translation)in Palladam Village, Coimbatore District, and it was
affirmed by the Commissioner of Land Administration in his
Proceedings dated 20.10.2005 in Roc.No. F3/24127/2004 (P.No.54).
The First to Fifth Petitioners challenged the said orders in the Writ
Petition in W.P. No. 38670 of 2005 before this Court, and it was
dismissed on 02.02.2021 against which the First to Fifth Petitioners
have preferred instant appeal. On the demise of the Fourth
Petitioner on 20.03.2022 during the pendency of this appeal, the
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Sixth to Eighth Petitioners have been brought on record as his Legal
Representatives by order dated 15.06.2022 in C.M.P. No. 8939 of
2022 passed by this Court.
6. The primordial contention of the Learned Senior Counsel for
the Appellants is that when this Court in the earlier order dated
21.01.2002 in W.P. No.17164 of 1995 had held that the lease deed
entered into by the Temple with the First to Fifth Petitioners cannot
be held to be valid in the eye of law and had attained finality in the
absence of any appeal against that order, it would operate as res
judicata in the subsequent proceedings and the Fifth Respondent
cannot rely on Section 116 of the Indian Evidence Act, 1872, to
claim better title to the property against the First to Fifth Petitioners,
who have been in continuous occupation of the same, particularly
when no lease agreement between the parties has been produced.
7. Per contra, Learned Counsel appearing for the Fifth Respondent
strenuously asserts that the initial entry into the property by the
First to Fifth Petitioners was only by way of permissive occupation
on lease by the Fifth Respondent and by virtue of the legal principles
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embodied in Section 116 of the Indian Evidence Act, 1872, the First
to Fifth Petitioners cannot deny the title of the Fifth Respondent to
the property. It is pointed out that the possession held by the First
to Fifth Petitioners cannot by mere long lapse of time and
non-payment of rent turn out to be hostile so as to be treated as
adverse to the Fifth Respondent to efface its right over that
property.
8. Having regard to the rival submissions made, it must be
remembered that the actual dispute in the Writ Petition relates to
the issuance of patta in favour of the Fifth Respondent for the
property as against the claim made by the First to Fifth Petitioners.
It is apparent from the materials borne out of the record that the
First to Fifth Petitioners have not been able to dislodge that their
initial entry into the property was only as lessees of the Fifth
Respondent. The necessary inference that has to be drawn from
this incontrovertible fact situation is that the legal character of the
possession of the First to Fifth Petitioners has to be attributed to a
jural relationship of Lessor and Lessee between the Fifth Respondent
and the First to Fifth Petitioners arising out of lease created by oral
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agreement accompanied by delivery of possession, falling within the
purview of second para of Section 107 of the Transfer of Property
Act, 1882, as declared in the authoritative pronouncement of the
Hon'ble Supreme Court of India in Anthony -vs- K.C. Ittoop &
Sons [(2000) 6 SCC 394] which holds the field. Neither the
circumstance that the Fifth Respondent was denied the right to
recover rent from the First to Fifth Petitioners nor their continuance
in possession of the property for a long period could nullify the
rights of the Fifth Respondent over that property or attract the
doctrine of res judicata to this case. It would also assume
significance here that the claim of the First to Fifth Petitioners for
patta to the property had been denied by this Court in the order
dated 21.01.2002 in W.P. No. 17164 of 1995 against which no
appeal had been preferred by them and has attained finality. As
such, it does not lie in the mouth of the First to Fifth Petitioners to
contend that the Fifth Respondent had forfeited the right to that
property in view of the common order dated 21.01.2002 in W.P.
Nos. 17164 of 1995 and 10320 of 1996 passed by this Court. On
the other hand, it had been made clear by this Court in the said
order that while considering the status of the Fifth Respondent
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viz-a-viz the First to Fifth Petitioners, the Revenue Authorities
should give due weightage to the long and uninterrupted possession
of the Fifth Respondent as approved by the Tahsildar, Palladam in
his Certificate of Possession dated 11.04.1973.
9. It is in that context that the Fifth Respondent must be held to
be entitled to the full effect of the benefits arising from Section 116
of the Indian Evidence Act, 1872, which reads as follows:-
“116. Estoppel of tenant; and of licensee of person
in possession.—No tenant of immovable property, or
person claiming through such tenant, shall, during the
continuance of the tenancy, be permitted to deny that
the landlord of such tenant had, at the beginning of the
tenancy, a title to such immovable property; and no
person who came upon any immovable property by the
licence of the person in possession thereof, shall be
permitted to deny that such person had a title to such
possession at the time when such licence was given. ”
This conclusion arrived is fully fortified by the decision of the Hon'ble
Supreme Court of India in Atyam Veerraju -vs- Pechetti
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Venkanna [(1966) 1 SCR 831], where it has been observed as
follows:-
“13. Having regard to s. 116 of the Indian Evidence Act,
1872, during the continuance of the tenancy, a tenant
will not be permitted to deny the title of the deity at the
beginning of the tenancy. In Bilas Kunwar -vs- Desraj
Ranjit Singh, the Privy Council observed :
"A tenant who has been let into possession
cannot deny his landlord's title, however
defective it may be, so long as he has not
openly restored possession by surrender to his
landlord."
14. It is also well settled that during the continuance of
the tenancy, the tenant cannot acquire by prescription a
permanent right of occupancy in derogation of the
landlord's title by mere assertion of such a right to the
knowledge of the landlord. See Mohammad Mumtaz
Ali Khan -vs- Mohan Singh, Madhavrao Waman
Satindalgekar -vs- Raghunath Venkatesh
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Deshpande, Naini Pillai Marakayar -vs-
Ramanathan Chettiar. In the last case, Sir John Edge
said :
"No tenant of lands in India can obtain any
right to a permanent tenancy by prescription
in them against his landlord from whom he
holds the lands."
Viewed from that perspective, the Revenue Authorities cannot be
faulted in deciding that the Fifth Respondent was having better title
so as to be granted patta as against the claim made by the First to
Fifth Petitioners in respect of that property and we concur with the
Writ Court in that regard. There does not appear to be any infirmity
in the decision making process carried out by the First and Second
Respondents warranting interference by this Court in the exercise of
the discretionary powers of the judicial review under Article 226 of
the Constitution.
10. Learned Senior Counsel for the Petitioners raised a fervent plea
that as the buildings in the respective portions of land occupied by
the First to Fifth Petitioners have been constructed by them, they
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would have to be treated as their owners so as to be entitled for
patta from the Revenue Authorities to that extent, in the event it is
held that the Fifth Respondent is the owner of the appurtenant land.
Since that part of the controversy does not appear to have been
discussed either before the Revenue Authorities or by the Writ
Court, we are not inclined to express any view on those factual
aspects of the matter at this advanced stage of the proceedings. At
any rate, it is made clear that the adjudication made in this order
relates only to the land in the property.
In the upshot, the Writ Appeal, which is devoid of merits, is
dismissed. No costs.
(S.V.G., CJ.) (P.D.A., J.)
21.09.2023
skr
Index : Yes/No
NCS : Yes/No
To
1. The Special Commissioner and Commissioner
Of Land Administration
Chepauk, Chennai-5.
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2. The District Collector
Coimbatore District
Coimbatore.
3. The District Revenue Officer
Coimbatore District
Coimbatore.
4. The Tahsildar
Palladam Taluk
Palladam, Coimbatore District.
5. The Executive Officer
Arulmigu Mahaliamman Temple
Palladam, Coimbatore District.
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W.A. No.967 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU,J.
skr
W.A. No. 967 of 2023
Dated : 21.09.2023
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