In the High Court of Judicature at Madras
Dated: 22/02/2005
Coram
The Honourable Mr. Justice S.R.SINGHARAVELU
Second Appeal No.1117 of 1994
1. Kamalambal
2. A.Jayapal ..Appellants
-Vs-
Arulmigu Renuka Devi
Amman Temple, Vijayapuram,
Thiruvarur Taluk and Munsif,
rep.by its Executive Officer ..Respondent
Second Appeal filed under Section 100 of Civil Procedure Code against
the judgment and decree dated 30.06.1993 in A.S.No.8 of 1991 on the file of
Sub Court, Nagapattinam, reversing the judgment and decree dated 27.02.1990 in
O.S.No.133 of 1988 on the file of District Munsif Court, Thiruvarur.
!For Appellants : Mr.B.Ramamoorthy
^For Respondent : Mr.T.R.Rajaraman
:JUDGMENT
Second Appeal was directed against the judgment dated 30.06.1993 in
A.S.8 of 1991 of the Sub Court, Nagapattinam, which reversed the judgment
dated 27.02.1990 in dismissing the suit in O.S.133 of 1988 by the District
Munsif, Thiruvarur.
2. During the course of admission, the following substantial question
of law was framed:
Whether the plaintiff can succeed on the basis of the case of the defendant
without proving his own case and abandoning the same ?
3. The suit was originally filed for permanent injunction and
subsequently amended as one for mandatory injunction to demolish the
construction made by the defendant in the suit site, which belongs to the
respondent/ plaintiff temple. The suit land is measuring 4912 sq.ft. in
T.S.No.979/1 in Block No.22, Ward No.3 in Vijayapuram of Thiruvarur; that
consists of two non-residential buildings, bearing door No.22 C and 22D and
one residential building bearing door No.23.
4. Originally the land was an inam land to which Section 13 of Tamil
Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 196 3 (Act 30
of 1983)was found applicable. Under Ex.A-1, there was a suo motu enquiry held
by the Settlement Tahsildar, Thanjavur under the provisions of Act 30 of 83,
for the purpose of grant of ryotwari patta. The notified date was taken as
15.02.1965. Arunachalam, the original defendant also took part along with the
authorities of the plaintiff temple in the said enquiry. As Arunachalam
subsequently expired, his legal representatives were added as the appellants
in the appellate stage. It is in that Settlement Proceedings Ex.A-1, mention
was made about the conveyance of permanent paguthi right and para 6 of Ex.A-1
specifically contained that what was conveyed was only the paguthi rights and
the ownership of the building. It was ultimately found as follows:
“I therefore order that the buildings in the suit land shall with effect on
and from the appointed day vest under section 13(1) of the Act jointly in the
institution and the respondent No.1 (Arunachalam Chettiar) as determined in
the Schedule”.
5. According to the Settlement Proceedings, the title in the suit
building vest jointly in the institution and the appellants’ predecessor by
name Arunachalam. Thus the appellants will be entitled to 50% of the building
while the other 50% remain vested with the respondent temple. Inasmuch as the
building as a whole remains in the possession of the appellants/defendants,
50% of their possession is due to their ownership and the remaining 50% is in
the capacity of a lessee. There seems to be some arrears of lease and that is
why, even in the course of evidence on the side of respondent /plaintiff, it
has been clearly stated that because of the pending ar rears, they were
necessitated to file the suit. Thus, the motive for filing the suit is the
pendancy of arrears, with which we are not concerned here as the suit is not
for claiming arrears. From the above evidence, the leasehold right of
appellants in the suit building is made known.
6. The contention of the respondent/ plaintiff is that the defendant
has removed the tiled roof of the building and had changed it into concrete
roof. Thus, according to the counsel for the respondent/ plaintiff, this is
not permissible under section 108(p) of the Transfer of Property Act. Section
108(p) of the Transfer of Property Act provides,
“In the absence of a contract or local usage to the contrary, the lessor and
the lessee of immovable property, as against one another, respectively,
possess the rights and are subject to the liabilities mentioned in the rules
next followed, or such of them as are applicable to the property leased….
(p) he must not, without the lessor’s consent, erect on the property any
permanent structure, except for agricultural purposes'”
7. The purpose of the building is residential and therefore, the
lessee, as per the above provision, shall not without the consent of the
lessor, erect on the property any permanent structure. So, what was
prohibited by the provision is erection of a permanent structure in the said
land without the consent of the lessor. This presupposes the existence of
‘Nil’ building or a temporary construction, which according to the above
provision, should not be erected or constructed of a permanent nature without
the lessor’s consent. There is no lessor’s consent herein. Therefore, if
there was vacant land or that there was a temporary shed, new construction or
conversion of a temporary construction into permanent structure is alone
prohibited. But counsel for the appellants agreed that there was an existence
of a permanent structure and the defendant had only removed the tiled roof and
converted it into a concrete roof. For which, of course, there was no
permission granted by the lessor. Whether this conversion of a tiled roof
into a concrete roof would make the above provision applicable is depending
upon the fact that the existing tiled roof shall be a temporary one. In no
stretch of imagination, it can be said that tiled roof is only a temporary
one. If that roof was made up of hay ricks or some leaves of coconut tree or
palmyrah tree, then it may be considered as a temporary structure, which
should not have been converted into either tiled or concrete roof without the
consent of a lessor. Now, it is only one form of permanent structure that was
converted into another form of permanent structure. This was not prohibited
by section 108(p) of Transfer of Property Act nor does it expect the consent
of a lessor. It is also not the case of the respondent / plaintiff that some
damage had been made to the building at the risk and cost of plaintiff temple.
After all, it is only an improvement to the building and no damage was either
alleged, pleaded or proved.
8. In such circumstances, the finding of the appellate court that
there are basic grounds for granting mandatory injunction is incorrect.
Demolishing a permanent building would no way cause any advantage to the
plaintiff, but in the alternative, it has only become added asset to the
temple. There is no benefit for either of the parties in such demolition. It
is also not as if the building is an old building, liable for demolition.
Regarding the age of the building, there is no evidence. The respondent/
plaintiff should not also rely upon the weakness of the appellants/legal
representatives of the defendant in getting a decree. The question of law is,
accordingly, answered in favour of the appellants.
9. Second Appeal is allowed and the suit is dismissed by restoring
the decree of the trial court and setting aside the decree of the first
appellate court. No costs.
Index:Yes.
Internet:Yes.
gl
To
1) The Subordinate Judge,
Nagapattinam.
2) The District Munsif,
Thiruvarur.
Copy to:
The Record Keeper,
V.R.Section,
High Court,Madras.