Madras High Court
Karupayee @ Vellaithayee Ammal vs Kathariya Tharka Trust on 22 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.445 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.445 of 2006
and
C.M.P(MD)No.3756 of 2006
1.Karupayee @ Vellaithayee Ammal
2.Ramasamy ... Appellants/Appellants/Defendants
Vs.
Kathariya Tharka Trust,
Khajiman Street,
Madurai Town,
Through its President,
M.Syed Khader Meher Ali Sahib
... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 15.06.2005 made
in A.S.No.167 of 2004 on the file of the 3 rd Additional Sub Court,
Madurai, confirming the judgment and decree, dated 20.04.2004 made
in O.S.No.526 of 1995 on the file of the Additional District Munsif
Court, Madurai.
For Appellants : Mr.PT.S.Narendravasan
For Respondent : Mr.A.Abdul Hameed
1/17
https://www.mhc.tn.gov.in/judis
S.A(MD)No.445 of 2006
JUDGMENT
The Judgments and decrees passed in O.S.No.526 of 1995
on the file of the Additional District Munsif Court, Madurai and in
A.S.No.167 of 2004 on the file of the 3rd Additional Sub Court, Madurai,
are being challenged in the present Second Appeal.
2.The respondent herein as plaintiff instituted a suit in
O.S.No.526 of 1995 on the file of the trial Court against the
appellants/defendants for the relief of recovery of possession,
permanent injunction and to pay damages for use and occupation of
the suit property from June 1995 till date of possession.
3.For the sake of convenience, the parties are referred to
as, as described before the trial Court.
4.According to the plaintiff, it is a Muslim Public Religious
and Charitable Trust. Many persons have endowed the properties to the
Trust. The properties belonging to the plaintiff including the suit
https://www.mhc.tn.gov.in/judis
scheduled property bearing Survey No.90/1 has been surveyed by the
Commissioner of Wakfs as per Section 4(3) of the Wakf Act. The
Government of Tamil Nadu has forwarded the said survey report to the
State of Wakf Board and the Board published the Plaintiff's Trust in
Official Gazette, dated 27.05.1969 in serial No.98 and 115 of the
Gazette. As per Section 6 of the Wakf Act, the character and nature of
Wakf has become final and conclusive. The plaintiff's Trust is
functioning under the General Supervision of the Tamil Nadu Wakf
Board. The Trust is also paying contribution to the Wakf Board, as per
Wakf Act. The plaintiff-Trust has created for the purpose of
commorating the memory of Saint Mohaideen Abdul Khader Jolani for
performing certain functions on the eleventh day of every month,
performing Santhanakoodu every year free feeding to poor on the
Ramjan days, conducting Moulooth and Kandoories in the month of
Rabiyi Avval in the name of Prophet Mohammad and in the month of
Rabiyul Akeer in the name of Saint Mohideen Abdul Khader Jilani and
running Arabic School and other functions mentioned under the
byelaws of the Trust. While so, the first defendant has taken the Door
No.84 from the plaintiff on a monthly rent of Rs.50/- and Door No.84A
on a monthly rent of Rs.50/- as per English Calender month. For the
rents paid by the first defendant printed receipts have been issued to
https://www.mhc.tn.gov.in/judis
the first defendant. The first defendant is occupying the suit property
as a tenant under the plaintiff. At the time of vacating the suit
property, the first defendant has to surrender whatever improvements
made to the suit property to the plaintiff's Trust after removing the
super structure. The first defendant has paid the rent till February
1995 to the plaintiff and obtained the receipts on 11.03.1995. The first
defendant has not paid the rent beginning from March 1995 till date.
She has also vacated the suit property and has not surrendered the
suit property to the plaintiff. In law, the first defendant is to handover
vacant possession to the plaintiff when the first defendant has illegally
and unauthorisedly and even without the written consent of the
plaintiff-Trust transferred and handed over the possession of the suit
property to the second defendant. The occupation of the second
defendant in the suit property is neither legal nor proper. Also, it is not
binding on the plaintiff. There is no privity of contract between the
plaintiff and the second defendant. The second defendant never
obtained any written permission from the plaintiff to take any lease
hold right over the suit property. By the conduct of the first defendant
in allowing the second defendant to occupy illegally and unauthorisedly
the suit property, the Plaintiff's Trust has been put to irreparable loss.
The second defendant has no right in law to put up the construction in
https://www.mhc.tn.gov.in/judis
the property of the plaintiff. The Office bearers of the plaintiff went to
the spot and prevented the second defendant in anyway putting up
construction. The plaintiff informed the Madurai Municipal Corporation,
on 17.06.1995 that the Second Appellant/Second Defendant is putting
up the constructions unauthorisedly and illegally and also without the
permission of the plaintiff and also any plan from the Corporation in the
suit property. The first defendant is a tenant of the plaintiff's Trust.
She has unauthorisedly and illegally without the written consent of the
plaintiff's Trust vacated and handed over the possession to the third
party, viz., the second defendant. The first defendant has no right to
part away the property to the second defendant. The first defendant is
not in occupation of the suit property and also not paid the loan from
March 1995 to the plaintiff. Hence, the plaintiffs have filed the said suit
for the abovestated relief.
5.The defendants had filed a written statement stating that
the plaintiff is not a Public Trust as alleged by it. The plaintiff is to
prove that the suit property has been endowed to it and that the said
trust has been supervised by the Commissioner of Wakf as per Section
4(3) of the Wakf Act. The plaintiff is not a public Religious and
Charitable Trust. The suit property is a site belongs to the plaintiff. The
https://www.mhc.tn.gov.in/judis
first defendant has been inducted as a tenant of the vacant site in
respect of the suit property, in the year 1954. The first defendant at
present has been paying the site rent of Rs.100/- per month. There is
no arrears of rent by the first defendant, as averred by the plaintiff.
There is no agreement to surrender with all the improvements made by
the first defendant to the plaintiff. The first defendant had put up the
super structure and she is the owner of the super structure. Further,
the first defendant is paying the super structure tax to the Madurai
Corporation. The first defendant is a City Tenant entitled to the benefits
as per City Tenants Protection Act, 1921. The superstructure put up by
the first defendant is worth Rs.1,50,000/-. The first defendant alone is
in possession and enjoyment of the suit property from the year 1954.
The plaintiff claimed an increased rent of Rs.200/- from the month of
March 1995 and refused to receive the March 1995 rent which has
been tendered to the plaintiff. The demand for an increase in rent of
Rs.200/- is without any basis and unreasonable. The first defendant
has vacated the portion and the second defendant is in occupation of
the same. The second defendant is an employee of the first defendant.
The first defendant alone is the tenant. The second defendant is
helping the first defendant. The suit property is a tiled structure and
continues to be the same. Periodical repair works will have to be
https://www.mhc.tn.gov.in/judis
carried out. The second defendant has nothing to do with the suit
property and the first defendant is entitled to the benefits of the City
Tenants Protection Act 1921 and therefore, she filed a Petition as per
Section 9 of the Act in O.P.No. 2 of 1996. The suit is not maintainable
in law and it is liable to be dismissed in limini. Notice to quit has not
been issued by the plaintiff to the first defendant terminating tenancy.
Without terminating the tenancy, the present suit filed by the plaintiff is
not maintainable.
6.The averments of Additional Written Statement filed by
the defendants are that in as much as the suit is one for vacating the
site tenant. Notice to quit as per Section 106 of the Transfer of
Property Act is mandatory. No notice has been issued as per Section
106 of the Transfer of Property Act. Furthermore, the relief for recovery
of possession as prayed by the plaintiff is not sustainable in law or on
facts. Indeed, the plaintiff ought to have filed the suit for ejectment
only and prayed for dismissal of the suit.
https://www.mhc.tn.gov.in/judis
7.The plaintiff filed a reply statement stating that the
plaintiff Trust never permitted the second defendant as the tenant. The
first defendant is not in occupation of the suit site and only the second
defendant is in occupation of the suit site without any authority. The
first defendant after selling the superstructure to the second defendant
is no longer a tenant of the plaintiff. The first defendant is only a formal
party to avoid plurality of proceedings. The main relief has been sought
against only the second defendant.
8.Before the trial Court, on the side of the plaintiff, P.W.1
and P.W.2 were examined and Exs.A1 to A12 were marked. On the side
of the defendants, no witness has been examined and no documents
have been marked.
9.On the basis of the rival pleadings made on either side,
the trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, has decreed the suit.
https://www.mhc.tn.gov.in/judis
10.Aggrieved by the Judgment and decree passed by the
trial Court, the defendants as appellants, had filed an Appeal Suit in
A.S.No.167 of 2004 on the file of the first Appellate Court.
11.The first Appellate Court, after hearing both sides and
upon reappraising the evidence available on record, has dismissed the
appeal and confirmed the Judgment and decree passed by the trial
Court.
12.Challenging the said Judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the defendants as appellants.
13.At the time of admitting the present second appeal, this
Court had framed the following substantial question of law for
consideration:
'i) Whether the Courts below are right in
finding that the suit for recovery of possession is
maintainable without a notice of termination of tenancy
https://www.mhc.tn.gov.in/judis
under Section 106 of the Transfer of Property Act,
particularly when the plaintiff paid the court fee on annual
rental value under Section 43(2) of the Tamil Nadu Court
Fees and Suits Valuation Act?'
14.The learned counsel appearing for the
appellants/defendants would submit that the Courts below erred in
finding that since the first defendant sold the superstructure to the
second defendant, the first defendant was not in possession of the suit
property and therefore, notice under Section 106 is not necessary,
particularly, when the first defendant is a tenant under the plaintiff only
in respect of vacant site; the Court below have failed to see that the
mere suit for recovery of possession is not maintainable in the absence
of notice under Section 106 of the Transfer of Property Act is
mandatory in nature; the Courts below erred in finding that the plaintiff
is entitled for a decree for recovery of possession, since the landlord
and tenant relationship between the plaintiff and the defendants has
not been proved; the Courts below have failed to see that P.W.2 himself
categorically stated that the superstructure sold by the first defendant
to the second defendant will not bind him. Under such circumstances,
the Courts below ought to have held that the tenancy is still in
https://www.mhc.tn.gov.in/judis
existence; the Courts below erred in finding that the first defendant
lost her tenancy right on the date of execution of sale deed in respect
of the superstructure in favour of the second defendant and hence
notice under Section 106 of the Transfer of Property act is not
necessary, particularly when the plaintiff leased out vacant site alone to
the first defendant and the first defendant still continues to be a tenant
under plaintiff in respect of the vacant site; without issuing notice of
termination of tenancy, the suit is not maintainable and the Courts
below have failed to see that the second defendant never claims any
tenancy right under the plaintiff and further the second defendant was
not a tenant under the plaintiff and under such circumstances, notice
terminating the tenancy of the first defendant under Section 106 of the
Transfer of Property Act is mandatory and prayed for allowing the
Second Appeal.
15.The learned counsel appearing for the
respondent/plaintiff would submit that the plaintiff has issued notices
to the appellants and one Durgesh and the parties can work out their
remedy before the concerned Court, wherein new proceedings are to
be initiated on the fresh cause of action.
https://www.mhc.tn.gov.in/judis
16.Heard the learned counsel appearing for the
appellants/defendants and the learned counsel appearing for the
respondent/plaintiff and also perused the records carefully.
17.When the matter is taken up for hearing today, the
learned counsel appearing for the defendants would submit that earlier,
this Court, by judgment dated 01.11.2011, disposed of the Second
Appeal. However, the said judgment was restored on its file on
26.08.2019.
18.Further, the learned counsel appearing for the
appellants would submit that the plaintiff issued a notice to the
defendants 1 and 2 and one Durgesh on 29.04.2024, calling upon them
to vacate and hand over vacant possession of the schedule property
immediately on such termination of tenancy, failing which, appropriate
legal proceedings will be initiated. Thereafter, second notice/statutory
notice has been issued under Section 106 of the Transfer of Property
Act to the defendants on 03.06.2024, wherein, the plaintiff had stated
that the property bearing Door Nos.84 and 84A situated at Theni Main
Road, Kalavasal, Madurai, was originally leased out to one Karupayee
https://www.mhc.tn.gov.in/judis
@ Vellaiyathayee Ammal and they paid rent till 1995 and the said
Karupayee @ Vellaiyathayee Ammal not handed over the vacant
possession to the Wakf Board and she handed over the possession of
the suit property to the second defendant. Hence, the Management
filed a suit for recovery of possession against the defendants. The
second appeal was allowed. Hence, the suit for recovery of possession
without issuance of notice under Section 106 of the Transfer of
Property Act is taken care by this Court and this Court is of the view
that no notice has been sent under Section 106 of the Transfer of
Property Act. Hence, the new Management, who has taken charge on
15.03.2022, was of the view that they have to take fresh action in
accordance with law as against all the parties, who are in possession.
The second defendant had sub-letted the suit property to one Durgesh,
who is in possession of the Wakf property. The alleged illegal transfer
of Wakf property is void and it is not binding on the Wakf and they are
all encroachers of the said Wakf property and they illegally attempting
to alienate Wakf property to create fraudulent transaction, hence, with
no other alternative remedy, as from 1995 onwards no rent has been
paid and the litigation is pending, they have issued a notice that the
lease issued in favour of the first defendant stands terminated upon
issuance of two following notices as per law and the Wakf is
https://www.mhc.tn.gov.in/judis
terminating the lease by notice dated 29.04.2024 and lease was
terminated and second notice is issued, since they failed to vacate the
premises. The Wakq has determined the lease in favour of the first
defendant and that the same has been terminated and third notice has
also been issued to call upon the first defendant to pay the arrears of
rent/damages from March 1995. As the defendants 1 and 2 and one
Durgesh were found in illegal occupancy and proceeded against them
under due process of law for eviction.
19.As the new notice has been issued against the
defendants 1 and 2 and one Durgesh, since the Second Appeal which
has been listed before this Court has to be considered whether the suit
for recovery of possession is maintainable without a notice of
termination of tenancy under Section 106 of the Transfer of Property
Act, it is decided that there cannot be any such termination of tenancy
except under due process of law. Hence, this Court is inclined to
dispose of the Second Appeal on the ground that already eviction
under due process of law has been initiated by making the parties to
work out the remedy before the concerned Court of law, wherein new
proceedings are to be initiated on the fresh cause of action.
https://www.mhc.tn.gov.in/judis
20.Accordingly, the Second Appeal is disposed of. No costs.
Consequently, connected Miscellaneous Petition is closed.
22.10.2024
Index : Yes/No
Internet : Yes/No
ps
https://www.mhc.tn.gov.in/judis
To
1.The 3rd Additional Sub Court,
Madurai.
2.The Additional District Munsif Court,
Madurai.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
22.10.2024
https://www.mhc.tn.gov.in/judis
