BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/11/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.(MD)No.647 of 2008 1.Senba Nadar 2.Kaliamoorthy 3.Narayani 4.Shanmugasundaram 5.S.Vijayalakshmi .. Appellants/Appellants Defendants 2-6 Vs. Idol of Sri Neelamegaperumal Sri Neelamegaperumal Temple, Kulithalai, represented by its Executive Office, Kulithalai. .. Respondent/Respondent/ Plaintiff PRAYER This Second Appeal has been filed under Section 100 of CPC, against the decree and judgment dated 06.09.2007 in A.S.No.23 of 1997 on the file of Subordinate Judge, Kulithalai, dismissing the appeal confirming the Decree and Judgment dated 29.10.2006 passed by the Additional District Munsif, Kulithalai in O.S.No.24/1983. !For Appellants ... Mr.S.K.Mani, Advocate ^For Respondent ... Mr.K.Govindarajan, Advocate :JUDGMENT
This appeal has been directed against the decree and judgment in
A.S.No.23 of 1997 on the file of the Subordinate Judge, Kulithalai, which had
arisen out of a decree in O.S.No.24 of 1983 on the file of Court of Additional
District Munsif, Kulithalai. The unsuccessful defendants before the Court below
are the appellants herein.
2.The plaintiff is the Executive Officer of “Sri Neelamegaperumal
Temple”, Kulithalai, filed a Suit for recovery of possession and also for
arrears of rent and damages. According to the plaintiff, the plaint schedule
property belongs to the plaintiff, which is situated in S.No.48/3 at Kulithalai
Town. The defendants are the lessee under the plaintiff for a monthly rent of
Rs.12/- from 01.07.1979. The rent was increased to Rs.24/- per month. The
defendants have committed default in payment of rent for a period from
01.07.1981 to 30.06.1982. The plaintiff issued notice on 15.06.1982. After the
receipt of notice, the defendants are trying to get mortgage from the Government
on the ground that the plaint schedule property is ‘Natham Poromboke’ belonging
to the Government. Hence the suit.
3.The defendant in his written statement would contend that the
plaint schedule property is a ‘Natham Poromboke’ and the suit property was never
in possession and enjoyment of the plaintiff. The Plaintiff has trespassed
into the property and put up a hut some 50 years back and is paying the house
tax also. Since the plaintiff informed that the plaint schedule property
belongs to him, the defendant has agreed to be lessee under the plaintiff for
the suit property, for a monthly rent of Rs.3/- which was subsequently enhanced
to Rs.20/- per month and thereafter from 01.01.1979 to Rs.24/- per month. The
plaintiff was not issued any statutory notice to the defendant. The defendant
has approached the Government for issuance of patta in respect of the plaint
schedule property in his favour. The Tahsildar has also considered the request
of the defendant and issued patta in favour of the defendant. Hence the
plaintiff is not entitled to the relief of recovery of possession in respect of
the plaint schedule property. The defendant was not issued patta in respect of
the plaint schedule property by the Government. Hence the suit is liable to be
dismissed. On the above pleadings, the learned trial Judge has framed five
issues for trial.
4.P.W.1 was examined and Exs.A1 to A23 were marked on the side of
the plaintiff and D.W.1 was examined and Exs.B1 to B7 were exhibited on the side
of the defendants. After going through the evidence both oral and documentary,
the learned trial Judge partly decreed the suit for the relief of arrears of
rent and dismissed the suit for the relief of recovery of possession and also
for damages. Aggrieved by the finding of the learned trial Judge, the defendant
has preferred an appeal before the first appellate Judge in A.S.No.23/1997
before the Subordinate Judge, Kulithalai.
5.After due consideration of the submissions made by the learned
counsel on both sides and after going through the judgment and decree of the
learned trial Judge and also the materials placed before the Trial Judge, the
first appellate Judge finding no reasons to interfere with the finding of the
trial Judge, has dismissed the appeal, thereby confirming the decree and
judgment in O.S.No.24/1983 on the file of Additional District Munsif,
Kulithalai, which necessitated the defendant to approach this Court by way of
this Second Appeal. Before admission, notice was ordered and the records
were called for.
6.Heard the learned counsel appearing for the appellant as well as
the respondents.
7.There is absolutely no substantial question of law involved in the
Second Appeal. The learned counsel appearing for the appellant would contend
that the defendant by inadvertance had entered into a registered lease, Ex.A1,
in respect of the suit property with the plaintiff is not liable to pay any
rent to the plaintiff, since it has been found out latter, that the suit
property is a ‘Grama Natham’ and the Government is the title holder for the suit
property and that the defendant had approached the Government for issuance of
patta in his favour. Even though in the written statement the defendant would
contend that patta for the plaint schedule property has been issued in favour of
the defendant, no patta in favour of the defendant was produced before the trial
Court. Further, the suit filed by the plaintiff for recovery of possession has
been dismissed on the ground that the statutory notice under Section 106 of
Transfer of Property Act, 1882, was not issued to the defendants. Suit for
arrears of rent alone was decreed and even the relief of damages was also
dismissed by the Courts below. Under such circumstances, if the defendant is
having any grievance that will be with regard to the payment of rent alone,
which in my view, is not a substantial question of law to be decided by this
Court, under Section 100 CPC. Since, there is no substantial question of law
involved, the Second Appeal is dismissed before admission.
8.In fine, the Second Appeal is dismissed before admission. No
costs.
Mpk
To
1.The Subordinate Judge,
Kulithalai,
2.The Additional District Munsif,
Kulithalai