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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Arulmigu Vedaranyeswaraswamy Devasthanam - Appellant
Vs.
A. Ibrahim Sahib - Respondent
S.A. No. 703 of 2011
Decided On : 02-02-2017
Transfer of Property Act - Sections 106 ,111 and 113 - Tenant - Suit property - Possession - Arrears of rent – Decreed – Challenged - Defendant, inter alia has raised various defences resisting case of plaintiff and according to defendant, he is of ground site of suit property and not in arrears of rent in respect of suit property as put forth by plaintiff and further, he is not liable to hand over possession of suit property to plaintiff - Contention of defendant that he of ground site of the suit property, courts below have negatived his plea - Similarly, as regards his claim that he is not in arrears of rent, said defence has also been found against him by Courts below - It is held that defendant is only a tenant of building in suit property - Receipt of same has not been disputed - Based upon above said notice dated marked as Ex.A2, trial Court has decreed suit in entirety in favour of plaintiff temple - Defendant preferred first appeal - As adverted to earlier, first appellate court has also concurred with findings and conclusions of trial court, as regards contentions of defendant with reference to his claim that he is only of ground site of suit property and also not in arrears of rent - However, considering notice marked as Ex.A2, first appellate Court found that under said notice – Held, Accordingly, it could be seen that first appellate court has rightly found that suit filed by temple for eviction of defendant from the suit property is not maintainable and plaintiffs temple would be entitled to recover possession of suit property from defendant only after determination of his tenancy duly in accordance with law - In such view of matter findings and conclusions of first appellate court for rejecting relief of recovery of possession of suit property from defendant sought for by plaintiff temple do no call for any interference - Plaintiffs counsel contended that Ex.A2 notice has not been seriously controverted by defendant in written statement and therefore Court should hold that he has waived same and accordingly, grant relief of possession sought for by plaintiff – Equally, findings of first appellate court that plaintiff temple has waived issuance of quit notice under Ex.B12 notice as contemplated under Section 113 of Transfer of Property Act also is found to be in order - Accordingly, substantial questions of law formulated in this second appeal are answered against plaintiff temple and in favour of defendant - In conclusion, second appeal fails and accordingly, same is dismissed - Consequently, connected miscellaneous petition is closed.
Challenge in this second appeal is made by plaintiff against the judgment and decree dated 10.03.2011 passed in A.S.No.46 of 2010 on the file of the Sub Court, Nagapattinam, reversing the judgment and decree dated 11.11.2009 passed in O.S.No.87 of 2008 on the file of the District Munsif cum Judicial Magistrate, Vedaranyam.
2. The second appeal has been admitted and the following substantial questions of law are formulated for consideration in this second appeal.
(a) Whether the lower Appellate court is right in holding that under Ex.A2 there is no valid termination of tenancy especially when the defendant did not object to the Ex.A2, Notice in the written statement and therefore deemed to have been waived?
(b) Whether the receiving rent after the issue of Ex.B12, with amount to waiver of termination of tenancy?
3. The suit has been laid by the plaintiff for arrears of rent and recovery of possession.
4. The defendant, inter alia, has raised various defences resisting the case of the plaintiff and according to the defendant, he is the Paguthidar of the ground site of the suit property and not in arrears of rent in respect of the suit property as put forth by the plaintiff and further, he is not liable to hand over the possession of the suit property to the plaintiff.
5. As regards the contention of the defendant that he is the paguthidar of the ground site of the suit property, the courts below have negatived his plea. Similarly, as regards his claim that he is not in arrears of rent, the said defence has also been found against him by the Courts below. It is held that the defendant is only a tenant of the building in the suit property.
6. Before laying the suit, it appears that the plaintiff temple has issued a notice dated 25.10.2004 calling upon the defendant to hand over the possession of the suit property. The receipt of the same has not been disputed. Based upon the above said notice dated 25.10.2004 marked as Ex.A2, the trial Court has decreed the suit in entirety in favour of the plaintiff temple. The defendant preferred the first appeal. As adverted to earlier, the first appellate court has also concurred with the findings and conclusions of the trial court, as regards the contentions of the defendant with reference to his claim that he is only a paguthidar of the ground site of the suit property and also not in arrears of rent. However, considering the notice marked as Ex.A2, the first appellate Court found that under the said notice, the tenancy of the defendant has not been determined by the plaintiff temple in accordance with Sections 106 and 111 of the Transfer of Property Act and in such view of the matter, held that the plaintiff's suit for recovery of possession of the suit property from the defendant/tenant is not maintainable as the plaintiff cannot seek the possession of the suit property from the defendant without due termination of the lease as contemplated under law and thereby, held that the plaintiff is not entitled to seek the relief of recovery of possession of the suit property from the defendant. Accordingly, set aside that portion of the judgment and decree of the trial court and concurred with the other portions of the judgment and decree of the trial court as regards the recover of arrears of rent etc.,
7. It is also found that during the pendency of the first appeal, a document i.e. notice sent by the plaintiff dated 26.01.2002 to the defendant has been marked as an additional evidence and Exhibited as Ex.B12. Ex.B12 has not been controverted by the plaintiff temple. It has been admitted that the said notice has been issued by the plaintiff temple to the defendant. Under Ex.B12, it is found that the plaintiff has determined the tenancy of the defendant and directed him to hand over the possession of the suit property. However, pursuant to Ex.B12, as rightly found by the first appellate court, the plaintiff had not laid any suit seeking recovery of possession of the suit property from the defen
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