Back
1998 Supreme(Mad) 542
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SAMPATH
Estate of M.Venktesa
Versus
Sarma Represented by executrix Miss. V. Rama Devi (deceased) Versus A.N. Rajalakshmi & Others
S.A. No. 809 of 1984 & Memo of Cross Objections & C.M.P. No. 6847 of 1990
Decided On :Decided On 04-1998
For the Appellants:Rajkumar Bhagwatsaran, Advocate.
For the Respondents:N.R. Chandran, Senior Counsel for G.K.R. Pandian, Advocates.
A suit for ejectment against a trespasser is maintainable even if the trespasser is in possession of the property for a long period of time.
Headnote:
TAMIL NADU CITY TENANTS PROTECTION ACT - SECTION 11 - NOTICE - TENANT - TRESPASSER - MAINTAINABILITY OF SUIT - CROSS-OBJECTIONS - MAINTAINABILITY - TRANSFER OF PROPERTY ACT - SECTIONS 106, 111, 116 - DENIAL OF TITLE - PROBATE - WILL - CODICIL - LETTERS OF ADMINISTRATION ‘DE BONIS NON’ - SECOND APPEAL - SUBSTANTIAL QUESTIONS OF LAW - ANSWERED - SCHOOL - CONTINUANCE - SETTLEMENT - AMICABLE - OWNER - PURCHASE - OUTRIGHT - LOCATION - ANOTHER - INTERESTS - SCHOOL CHILDREN - UPPERMOST IN MIND - SUIT - DECREED - CROSS-OBJECTIONS - DISMISSED - COSTS - NONE - C.M.P. NO. 6847/90 - NO ORDERS NECESSARY.
Fact of the Case:
Venkatesa Sarma filed a suit for ejectment against P.B. Venugopalan from a vacant site in West Mambalam, Madras, after removing the superstructure and directing Venugopalan to pay damages and future damages. Venugopalan claimed to be in occupation of the site at the request of the public for running a school and denied being a tenant of Venkatesa Sarma. He also claimed to have perfected title by adverse possession. Venkatesa Sarma died during the pendency of the suit and his daughter and Power of Attorney Holder V. Rama Devi was impleaded as his legal representative. The trial court dismissed the suit holding that it was not maintainable as the school was not impleaded as a party and that the notice to quit was not proper. The first appellate court set aside the trial court's findings and held that the suit was maintainable against Venugopalan and Rajalakshmi, who was impleaded as the second defendant. However, the appeal was dismissed on the ground that probate of the Will had not been obtained. Venkatesa Sarma's daughter filed a Second Appeal challenging the dismissal of the appeal by the lower appellate court.
Finding of the Court:
The High Court held that the suit was maintainable against Venugopalan and Rajalakshmi as they were deemed to be trespassers. The court found that Venugopalan had denied the relationship of landlord and tenant with Venkatesa Sarma and that Rajalakshmi had claimed that there was no privity of contract between her and Venkatesa Sarma. The court also held that the second defendant was not entitled to any notice under the Tamil Nadu City Tenants Protection Act as she was not a tenant. The court further held that the dismissal of the appeal by the lower appellate court for non-production of the probate was not valid as probate had been obtained. The court also held that the cross-objections filed by the first respondent were maintainable.
Issues: 1. Whether the suit was maintainable without impleading Bharatha Matha Primary School? 2. Whether a notice under Section 106 of the Transfer of Property Act was necessary to the respondent? 3. Whether the appellant was competent to continue the suit after the death of her father, pending the suit?
Ratio Decidendi: 1. The court held that the suit was maintainable against Venugopalan and Rajalakshmi as they were deemed to be trespassers. The court found that Venugopalan had denied the relationship of landlord and tenant with Venkatesa Sarma and that Rajalakshmi had claimed that there was no privity of contract between her and Venkatesa Sarma. The court also held that the second defendant was not entitled to any notice under the Tamil Nadu City Tenants Protection Act as she was not a tenant. 2. The court held that a notice under Section 106 of the Transfer of Property Act was not necessary as the second defendant was not a tenant. 3. The court held that the appellant was competent to continue the suit after the death of her father as probate of the Will had been obtained.
Final Decision: The High Court allowed the Second Appeal, set aside the judgments and decrees of both the courts below, and decreed the suit as prayed for. The cross-objections were dismissed.
1. Originally one Venkatesa Sarma represented by his daughter and Power of Attorney Holder V. Rama Devi filed suit O.S. No. 3461/72 before the Fifth Assistant City Civil Court, Madras, against one P.B. Venugopalan for ejectment in respect of 4-1/2 grounds in T.S. No. 1/1, Block No. 50, Puliyur, Thambia Reddy Road, West Mambalam, Madras-34, after removing the superstructure, for directing the defendant to pay damages in a sum of Rs. 7000/- at the rate of Rs. 100/- per month and future damages at the same rate averring as follows:
The plaintiff was the owner of the suit vacant site. Venugopalan was in occupation of 4-1/2 grounds. He was one of the trespassers on the land and he erected superstructure and was running a school, Bharathamatha Primary School. There was a watchman in charge. Venugopalan defied the plaintiff and did not vacate. Therefore, the plaintiff Venkatesa Sarma went to eject the first defendant Venugopalan pursuant to the decree in O.S. No. 2814/61 on the file of the City Civil Court, Madras, obtained against the persons under whom he become a tenant. Venugopal an implored Venkatesan Sarma not to disturb him in running the school promising to be his tenant. Out of sympathy Venkatesa Sarma allowed him to be a tenant. A letter under Ex.A-3 dated 20-4-1966 was given by Venugopalan undertaking to become Venkatesa Sarmas tenant under a lease deed for five years. Venugopalan did not execute any lease deed. He continued as Venkkatesa Sarmas tenant till 19.4.1971. On 17.3.1971, under the original of Ex.A-1, Venkatesa Sarma determined the tenancy as and from 1.5.1971. This was received by Venugopalan on 19-3-1971. There was no reply. Venugopalan was in the position of a trespasser. Ever since the termination of the tenancy no rent was paid. A demand draft for Rs. 500/- was received from one Rajalakshmi working as Headmistress. There was no covering letter received with the demand draft. Immediately Venkatesa Sarma sent a letter to Rejalakshmi mentioning about the receipt of the demand draft without a covering letter. There was no reply received from Rajalakshmi. Venkatesa Sarma encashed the draft as damages for use and occupation for five months, There was still a balance of Rs. 700/- due upto 1-5-1972.
2. The said Venugopalan filed a written statement contending as follows:
The suit filed against him personally was not maintainable. He occupied the site at the request of the public of an extent of six grounds, which was unclaimed by any one long before 1954 for purpose of running a school. One Ellappa Naicker and others occupying the adjacent land claimed to be owners and demanded rent from Venugopalan. He refused to recognize them as landlords and occupied in his own right as he did not know as to who was the owner on account of the long pending proceedings between Venkatesa Sarma and one Munuswamy Naicker and hundred others. Venugopalan could not also recognise Venkatesa Sarma as the landlord, since he had no possession nor could he give any guarantee to Venugopalan. He was in possession openly to the knowledge of Venkatesa Sarma and had perfected title by adverse possession in respect of 4-1/2 grounds. As Correspondent he put up superstructure worth over Rs. 30,000/-. Venkatesa Sarma attempted to interfere. Hence, Venugopalan gave the letter Ex.A-3 to regularise the occupation. With regard to the balance vacant land he did not attemppt to become Venkatasa Sarmas tenant. Venkatesa Sarma also recognised the school as tenant by receiving the rent. The present suit personally against Venugopalan as if he was his tenant was filed with a view to confuse the two blocks of land to get over the bar to recover possession. The area was not measured nor was it demarcated. The notice to quit was not valid and by receiving the rent Venkatesa Sarma had waived his right. There was collusion between Venkatesa Sarma and the Headmistress in collecting the rent in the name and on behalf of the school. There was no notice given
