Back
2019 Supreme(Mad) 2075
IN THE HIGH COURT OF MADRAS
T. RAVINDRAN, J.
S. Shanmugam – Appellant
Versus
R. Dhanraj and Ors. – Respondents
S.A. No. 683 of 2019 and C.M.P. No. 12839 of 2019
Decided On : 27-06-2019
Advocate Appeared:
For the Appellant :K. Kalyan Kumar, Advocate
Headnote:
Waif Act 1985 - Section 56 - initiated for the eviction – tenant - suit against the defendants for appropriate reliefs - plaintiff for possession and damages - trial Court - Further, it is also stated that a fresh lease deed was executed in favour of the plaintiff by the abovesaid Trust on 29.01.1988 and it is the case of the plaintiff that the defendants 1 to 4 were the tenants in respect of the suit property, however, failed to pay the rent to the plaintiff subsequent to his fathers death and the defendants have also admitted that they have occupied the suit property only as tenants in O.S. Nos. 3950/1987, 1785/1993 and the rent control proceedings initiated for the eviction of the defendants were dismissed with the determination that the landlord and tenant relationship could not be decided in the abovesaid proceedings and hence, the plaintiff has been necessitated to lay the suit against the defendants for appropriate reliefs – Held, defendants would contend that they are now paying rent to the Trust after knowing the ownership of the Trust qua the suit property. However, there is no document on the part of the defendants that they had attorned the tenancy in favour of the Waqf Board/Trust as the case may be. The Courts below had assessed the rent receipts projected by the defendants marked as Exs. B1 and B2 and found that the truth and validity of the same had not been established by the defendants, particularly, whether the same had been issued by the person having authority to issue the receipt on behalf of the Trust or the Waqf Board. Furthermore, the defendants have also not placed other receipts for establishing that they continue to pay the rent to the Trust. Accordingly, it is found that the defendants case cannot be accepted based on Exs. B1 and B2 solely and the same has been rightly assessed and determined by the Courts below and found that the defendants are attempting to squat in the suit property in the guise of attornment in favour of Waqf Board without placing acceptable and reliable materials pointing to the same - Contention has been put forth by the defendants that the lease cannot be made by the Trust beyond a period of 3 years considering the prohibition under Section 56 of the Waqf Act 1995 and the same has been considered by the Courts below and noting that the abovesaid amendment made in the Waqf Act being effected only on 01.11.13 and the lease deed in favour of the plaintiff having been executed in the year 1988, prior to the amendment, in such view of the matter, noting that the abovesaid amendment would not apply to the lease arrangement projected by the plaintiff, rightly held that the amendment relied upon by the defendants under Section 56 of the Waqf Act 1995 has no retrospective effect and rightly determined that the lease deed projected by the plaintiff cannot be held invalid in the light of Section 56 of the Waqf Act 1985 - In the light of the abovesaid discussions, when it is seen that the Courts below had assessed the materials placed on record, both oral and documentary, in the right perspective, both factual wise and legal wise and determined that the plaintiff is entitled to eject the defendants from the suit property as prayed for and accordingly, when there is no valid reason projected by the defendants, particularly, the 9th defendant/appellant warranting any interference with the abovesaid concurrent judgment and decree of the Courts below, it is found that no substantial question of law is involved in this second appeal and resultantly - appeal is dismissed
JUDGMENT :
T. Ravindran, J.
1. Challenge in this second appeal is made to the judgment and decree dated 31.01.2019, passed in A.S. No. 313 of 2018, on the file of XVII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 20.03.2018, passed in O.S. No. 1994 of 2003, on the file of the XV Assistant Judge, City Civil Court, Chennai.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The suit has been laid by the plaintiff for possession and damages.
4. Briefly stated, according to the plaintiff, the suit property belongs to the Muslim Trust called the Shia Trust and the plaintiff's father Rajagopal Chettiar had taken the same for lease in the year 1948 and constructed a building in the suit property and enjoying the same by paying tax etc., Further, it is also stated that a fresh lease deed was executed in favour of the plaintiff by the abovesaid Trust on 29.01.1988 and it is the case of the plaintiff that the defendants 1 to 4 were the tenants in respect of the suit property, however, failed to pay the rent to the plaintiff subsequent to his father's death and the defendants have also admitted that they have occupied the suit property only as tenants in O.S. Nos. 3950/1987, 1785/1993 and the rent control proceedings initiated for the eviction of the defendants were dismissed with the determination that the landlord and tenant relationship could not be decided in the abovesaid proceedings and hence, the plaintiff has been necessitated to lay the suit against the defendants for appropriate reliefs.
5. The defendants, particularly the 9th defendant, resisted the plaintiff's suit contending that the plaintiff's father, claiming himself to be the owner of the suit property, had been receiving rent and subsequently, the defendants came to know that the suit property only belongs to the Muslim Trust and not to the plaintiff's father and accordingly, the defendants also resisted the rent control proceedings initiated for evicting them from the suit property on the abovesaid lines, instead of proceeding further in the rent control proceedings, the present suit laid by the plaintiff is not maintainable and further contended that the suit property being the Waqf property, the lease for a period of 30 years is barred under the Waqf Act and therefore, contended that the plaintiff is not entitled to seek and obtain the reliefs as prayed for and the suit is liable to be dismissed.
6. In support of the plaintiff's case PW 1 was examined, Exs. A1 to A6 were marked. On the side of the defendants, DWs 1 and 2 were examined, Exs. B1 to B14 were marked.
7. The Courts below were pleased to, on a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, decree the suit in favour of the plaintiff as prayed for. Aggrieved over the same, the present second appeal has been preferred by the 9th defendant.
8. It is not in dispute that the suit property belongs to the Shiya Trust and according to the plaintiff, his father obtained the suit property on lease and constructed a building thereon with his own funds and was enjoying the same and let out the same to the defendants 1 to 4 and inasmuch as the defendants had stopped paying the rent to the plaintiff, after the demise of the plaintiff's father, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. In this connection, reliance is placed upon the lease deed, marked as Ex. A1, dated 29.01.1988, which according to the plaintiff had been executed in his favour by the Shiya Trust. The abovesaid lease deed is a registered instrument and it is also found that another deed of declaration has also been executed on 03.02.1990 by the son of the hereditary trustee empowering the plaintiff to receive rent with respect to the suit property and the same has come to be marked as Ex. A2 and thus, it is found that as projected by the plaintiff, the suit
