Madras High Court
G.Ayyarappan vs A/M.Arunachaleswarar Thirukoil on 28 May, 2025
S.A.No.817 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.05.2025
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
S.A.No.817 of 2013
and
M.P.No.1 of 2013
1.G.Ayyarappan
2.G.Munuswamy
3.G.Kannappan
4.G.M.Devaki ... Appellants/Respondents 3-6/Impleaded Defendants 3-6
Vs.
1.A/m.Arunachaleswarar Thirukoil
Having its Office at the
Thirukoil premises
At: Thiruvannamalai and represented by its
Deputy Commissioner/Executive Officer
... 1st Respondent/6th Appellant/Plaintiff
2.Ashok Sen ... 2nd Respondent/1st Respondent/1st Defendant
Prayer: This Second Appeal is filed under Section 100 of C.P.C., against the
judgment and decree dated 12.09.2012 made in A.S.No.232 of 2009 on the
file of the IV Additional City Civil Court, Chennai, reversing the judgment
and decree dated 01.08.2008 passed in O.S.No.3326 of 2001 on the file of the
Vth Assistant City Civil Court, Chennai.
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S.A.No.817 of 2013
For Appellants : Mr.A.Thiagarajan, Senior Counsel
Assisted by Ms.L.Sweety
for Mr.S.Ramesh Kumar
For R1 : Ms.P.A.Samyuktha
for M/s.A.S.Kailasam Associates
For R2 : M/s.Kalaivani
for M/s.Richardson Wilson
JUDGMENT
This Second Appeal has been preferred by the Defendant Nos. 3 to 6
against the judgment and decree dated 12.09.2012 passed in A.S.No.232 of
2009 by the IV Additional City Civil Court, Chennai.
2.According to the plaintiff, plaintiff is the sole and absolute owner of
the land situated in and around Adyar, including land measuring about 2411
sq.ft land, bearing Door No.52, Old No.42, Pleasant Avenue, Adyar, Chennai-
20, bounded on the East passage forming part of New Door No.48, Old No.53
West; 8 feet passage, on the North; New Door No.5, Old No.1, 2 Vasantha
Press Road; on the South Ramasamy Garden Street. Originally one
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Indiresan, father of the 1st defendant was a tenant in respect of the suit
property and on his death, the 1st defendant continued to be a tenant on
monthly rent of Rs.605/- and the tenancy being computed according to the
English calendar month. The 1st defendant has been very irregular in payment
of rent and a sum of Rs.21,175/- being the arrears of rent is due from him as
on 31.05.2001. Though the payment of rent is demanded from the 1st
defendant, he does not choose to pay so. Hence, the suit has been filed to
order to recover the arrears of rent, for delivery of vacant possession and for
damages for use and occupation from 01.06.2001 till the date of handing over
possession.
3.On behalf of the defendant Nos.2 to 5, it has been averred that
Indiresan, father of the 1st defendant was a tenant in respect of the suit land
on a monthly rent of Rs.605/- per month is false. Originally, the rent in
respect of the land in occupation of the defendant Nos.2 to 5 was Rs.1.48 per
month and subsequently, it was increased and the plaintiff demanded a sum of
Rs.50/- per month and the defendant Nos.2 to 5 have paid an advance of
Rs.100/-. The H.R. & C.E. by its Order dated 19.03.1988 had directed the
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plaintiff to recognize the 3rd defendant as the tenant. But the plaintiff did not
recognize the 3rd defendant as the tenant. Therefore, W.P.No.873 of 1999 was
filed before this Court and by an Order dated 25.01.1999, this Court directed
the plaintiff to dispose of the representation of the defendant Nos.2 to 5 in
respect to the tenancy, within a period of two months from the date of the
order. The defendant Nos.2 to 5 are actually in possession and enjoyment of
the property and by an order dated 06.02.2003 passed in I.A.No.17547 of
2001, they were impleaded as defendants. They are ready and willing to pay
the reasonable rent as may be fixed by the plaintiff.
4.Despite the receipt of suit summons, 1st defendant/Ashok Sen
remained ex-parte before the trial Court. On behalf of the 6th defendant/
G.M.Devaki no written statement was filed before the Trial Court.
5.Based on the rival contentions, the trial Court framed the following
issues.
1.Whether the plaintiff is entitled for the relief of vacant
possession of the suit land?
2.Whether the plaintiff is entitled for the arrears of rent of
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Rs.21,175/- till 31.05.2001?
3.Whether the plaintiff is entitled for the damages of Rs.790/-
per month from 01.06.2001 till the date of handing over all
the possession of the suit land?
4.To what other relief the plaintiff is entitled?
6.At trial, to substantiate the plaint details, one witness was examined
and five documents were marked. On the side of defendant Nos.2 to
5/appellants, the 3rd defenant/G.Ayyarappan has been examined as D.W.1 and
nineteen documents have been marked.
7.Upon consideration of the oral and documentary evidence and after
hearing both sides arguments, the trial Court granted decree in respect of
arrears of rent and directed the defendant Nos.2 to 6 to pay a sum of Rs.50/-
per month as rent from 01.06.2001 and as regards the relief of recovery of
possession the suit was dismissed.
8.Aggrieved by the said judgment, Executive Officer of the Temple, the
plaintiff herein preferred an appeal in A.S.No.232 of 2009 before the IV
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Additional City Civil Court, Chennai. Upon consideration of the case records
and after hearing the arguments of either side, the appeal was allowed in
entirety, by setting aside the judgment and decree dated 01.08.2008 passed in
O.S.No.3326 of 2001 on the file of the Vth Assistant City Civil Court,
Chennai. Aggrieved by the judgment and decree passed by the 1 st appellate
Court, the defendant Nos.3 to 6 have preferred this Second Appeal.
9.The learned counsel for the appellants/defendant Nos.3 to 6 would
vehemently argue that by suppressing the fact that appellants are in
possession for years together, the suit was filed. The fact that the 1 st defendant
neither appeared before the Court nor entered appearance through his counsel
would show that he was never in possession of the suit property. He would
further contend that the appellants had marked Exs.B1 to B19 which would
prove the possession of the appellants for years together and they were not
considered by the 1st appellate Court. The plaintiff is not entitled to evict the
defendants without following due process of law.
10. Per Contra, Ms.P.A.Samyuktha, learned counsel for the 1st
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respondent would strenuously contend that the appellants were not originally
inducted as tenants, but, on a petition, they were ordered to be impleaded as
defendants in O.S.No.3326 of 2001. The appellants cannot take any shelter
under the guise of their representations or other proceedings pending before
the Commissioner. It is her further argument that in the absence of any
tangible material to show that they have attorned tenancy under the plaintiff,
they cannot contend that they should be evicted by following due process of
Law. She would further contend that Ashok Sen was a chronic defaulter of
payment of monthly rents besides payment of damages for use and
occupation from 01.06.2001.
11.The following substantial questions of law arise for consideration:-
a) Whether on the facts and circumstances of the case first
appellate Court was right in holding that the appellants
was unauthorized occupant when admittedly the appellants
and his ancestors were living there for the past more that 70
years with the knowledge of the respondent.
b) Whether on the facts and circumstances of the case the
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first appellate Court was right in holding that the
appellants is seeking for tenancy under the respondent and
hence respondent has the right to recover the possession is
right in law when admittedly the respondent has fixed the
rent for the portion under the occupation of the appellants
and calling upon the appellants to execute the deed.
c) Whether on the fact and circumstance on the case the
Court below was right in allowing the appeal solely on the
ground that the appellants have been impleaded as a party
in the suit hence no relief can be given is correct in law.
12.Exs.C1 and C2 are the files, relating to the appellants herein and
more, specifically, the 1st appellant/G.Ayyarappan had given an application to
the HR & CE authority to record him as tenant in the suit property. Though so
many requisitions of this nature are found in Exs.C1 and C2, which was
given by the 1st appellant, no order was passed in favour of 1 st appellant (D3)
herein. It is relevant to note that the 1st defendant Ashok Sen did not appear
before the trial Court and he was set ex-parte. Whereas the present appellants
got impleaded as defendants as per the order passed in I.A.No.17547 of
2001. Plaintiff Thirukoil laid a suit only against Ashok Sen on the footing
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that he attorned tenancy under the Thirukoil in respect of the suit land and he,
being a chronic defaulter sought for recovery of possession of suit land and
for other reliefs. She would further contend that the appellants/defendant
Nos.3 to 6 are not at all tenants under the Temple.
13.D.W.1 namely 3rd defendant/G.Ayyarappan during the cross
examination would state that they are encroacher. The candid case of the
plaintiff is that 1st defendant/Ashok Sen attorned tenancy under the Plaintiff
Thirukoil. It is made clear that defendant Nos.3 to 6 are not tenants but the
door number details of the suit property is new door number 52, old door
number 47, Beasant Avenue Road, Adyar, Chennai. When the defendant
Nos.3 to 6/appellants are not tenants under the Plaintiff Thirukoil, the
question of tenancy and payment of rent does not arise at all. The suit was
originally laid by the plaintiff temple against Ashok Sen.
14.When the appellants/defendant nos.3 to 6 are not tenants under the
Plaintiff Temple, their contention that they have been in occupation of the suit
land for years together will not strengthen their case. D.W.1 would also state
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that they are encroachers. Therefore, the 1st Appellate Court in consideration
of the oral and documentary evidence rightly held that the plaintiff is entitled
for the reliefs sought for in the plaint.
15.In view of the aforesaid discussions and observations, this Court
does not find any good reason to upset the finding of the first appellate Court.
So also there is no infirmity or perversity in the findings of the first appellate
Court. The substantial questions of law are answered in favour of the
plaintiff.
16.In fine, this Second Appeal stands dismissed. The judgment and
decree dated 12.09.2012 passed in A.S.No.232 of 2009 by the IVth
Additional City Civil Court, Chennai, stands confirmed. There is no order as
to costs. Consequently, connected Miscellaneous Petition is closed.
28.05.2025
Index : Yes / No
Internet : Yes/ No
gbi
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To
1.The IV Additional City Civil Court,
Chennai.
2.The Vth Assistant City Civil Court,
Chennai.
3. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
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R.KALAIMATHI, J.,
gbi
28.05.2025
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