Skip to content


Periyanan Chetty and anr. Vs. Rao Bahadur M.R. Govinda Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1932)62MLJ496
AppellantPeriyanan Chetty and anr.
RespondentRao Bahadur M.R. Govinda Rao and ors.
Cases Referred and Orr v. Mrithyunjaya Gurukkal. I.L.R.
Excerpt:
- - kailasam pillai .executed a fresh lease of the endal to one raman chetty and with his lessee brought several suits in 1900 against some of the persons in occupation which ultimately failed. if therefore the cowledars in this case and their transferees who admittedly got no valid right to any permanent tenancy from the dharmakartha have been in possession in open assertion of that right from 1865 and if it appears that from 1902 at the latest the dharmakarthas knowing of the asserted right have allowed the defendants to be in possession under such right till 1918 we fail to see how the defendants' possession could be anything but adverse so far as the permanent tenancy is concerned or how they can be evicted after 12 years of such adverse possession. in the case of a shebait a grant.....1. the defendants are the appellants in these eleven second appeals. the suits were brought on behalf of sri subramanyaswami temple at kunnakudi one of the five temples collectively known as anjukoil of which the dharmakarthaship belongs to the pandarasannadhi of tiruvannamalai mutt. the suits were originally brought by a receiver during the pendency of litigation as to the person entitled to the office of pandarasannadhi of the mutt and as such of the office of dharmakartha of the temples. after the litigation ended in 1920 by the privy council decision reported in nataraja thambiran v. kailasam pillai . the person declared entitled to the offices was substituted as plaintiff. the suits were brought for the possession of various plots of land in a hamlet called muruganendal in the.....
Judgment:

1. The defendants are the appellants in these eleven second appeals. The suits were brought on behalf of Sri Subramanyaswami temple at Kunnakudi one of the five temples collectively known as Anjukoil of which the dharmakarthaship belongs to the Pandarasannadhi of Tiruvannamalai Mutt. The suits were originally brought by a receiver during the pendency of litigation as to the person entitled to the office of Pandarasannadhi of the Mutt and as such of the office of dharmakartha of the temples. After the litigation ended in 1920 by the Privy Council decision reported in Nataraja Thambiran v. Kailasam Pillai . the person declared entitled to the offices was substituted as plaintiff. The suits were brought for the possession of various plots of land in a hamlet called Muruganendal in the village of Uyyakondan belonging to the temple which had been alienated by a permanent cowle, dated 1st April, 1865, by the then dharmakartha in favour of the dharmakarthas of two other independent temples from whom the various defendants had obtained transfers of their several plots and either erected house and other permanent structures or built walls with a view to constructing such structures. The plaintiff urged in the alternative that even if possession could not be given in defeasance of the cowle the defendants were entitled under it only to rights as agricultural tenants, and have no right to change the character of the land or to erect permanent structures and walls, and prayed for an injunction for their removal or for compensation.

2. The defence as to the cowle was that it was beneficial to the Devasthanams and valid, and that even if it was invalid the cowledar and the defendants had by adverse possession acquired a valid title to a permanent tenancy. As to the right to put up buildings the defence was that the lease was not agricultural, that the use of the land for erecting houses was in no way an infringement of the conditions, that the houses had been built a very long time before the suit and that the plaintiff is not entitled either to an injunction for their removal or to compensation.

3. Most of the seventeen issues framed were not referred to in the; argument before us and are now immaterial. The District Munsif found that the cowle was not proved to have been granted for any beneficial purposes binding on the Devas-thanam, but he held that the suit to recover possession was barred by limitation and adverse possession. As to the nature of the cowle he held that it was not a purely agricultural lease and that the defendants were not prevented from building on the property. On these conclusions he dismissed the suits. The learned Subordinate Judge also held that the permanent cowle was beyond the power of the dharmakartha and not beneficial to or binding on the Devasthanam. But he differed from the Munsif on the question of limitation and relying on the decision of the Privy Council in Vidya Varuthi Thirtha v. Balusami Aiyar , he held the suits not governed by Article 134 and also that the defendants had not pleaded or proved any title: by adverse possession under Article 144. The logical consequence of these findings was that the plaintiff became entitled to a decree for possession. But the learned Judge having held that the defendants had not acquired title to a permanent lease by adverse possession went on to consider the case; also on the footing that they had acquired such title. On that footing he held that the cowle was an agricultural lease and that the erection of permanent structures on agricultural land was improper and that by that act the defendants had forfeited the lease and disentitled themselves to retain possession. But he held that it would be too harsh to enforce the forfeiture by ordering delivery of possession and by way of relief he considered that it would be sufficient if the buildings and walls were ordered to be removed. He accordingly while refusing the plaintiff's prayer for possession awarded him a mandatory injunction ordering the defendants to remove the walls and buildings in their respective holdings in three months and to restore the lands to their former condition and raise cultivation on them as stipulated in the kararnama or counterpart Ex. B.

4. The defendants have appealed to this Court. The plaintiff did not file any memorandum of cross-objections within the time allowed against the refusal of his prayer for possession.

5. But a memorandum was filed on 18th July, 1927. Unless the delay is excused and the memorandum admitted the only question in the appeals would be whether the injunction for removal of the buildings and walls can be upheld. But the learned Advocates have argued the question whether on the finding that the cowle was invalid and not binding on the Devasthanam the suits for possession are barred by limitation under Article 134, or 144. They have also argued the question whether if possession cannot be ordered, the injunction to remove the buildings can stand. These are the two questions for decision which we will deal with in that order.

6. As the original cowledars the dharmakarthas of Iravathes-warar and Alaginachiamman temples were not made parties to-these suits, the original cowle which must be in their possession has not been produced. But Exs. A and B produced by the plaintiff prove the existence of the cowle and the terms thereof. Ex. A is the application, dated 26th January, 1865, by the cowledars stating that the wet and dry lands in Murugan-endal were lying in a ruined condition overgrown with bushes as the tank bund had breached and had been out of repair. The applicants stated that if the endal be given to them on perpetual cowle, they would spend the Rs. 500 necessary for repairing the tank and' reclaim the nanja and punja and not only pay the rent for ever but also utilise the income from the reclaimed lands (melwaram) equally for the worship of the two temples of which they were the dahrmakarthas. Ex. B, dated 21st April, 1865, is the kararnama or counterpart of the cowle which was subsequently granted. It states the boundaries of the endal and then states that out of the lands within the said boundaries 7 mahs is fit for nanja cultivation, 15 kulies is fit for punja cultivation and 20 kurukams is the water-spread of the tank. It states that the lands and the tank are lying waste incapable of yielding any Income and overgrown with bushes and recites the application for the cowle. It then states that by order of the Athinam No. 165, dated 21st of the current month, a cowle has been granted for kattuguthagai at Rs. 20 per year for the entire nanjas, punjas, topes, thoravu, vacant ground, etc., situated within the four boundaries. For the first three years the rent was fixed at 1/4, 1/2 and 3/4, respectively, of the full rent in consideration of the time the reclamation would take. From the 4th year (fasli 1278) and thereafter for ever the rent was to be Rs. 20 per year. The cowledars agreed to spend the money required for the reclamation and improvement of the nanjas and punjas themselves and to cultivate them and utilize a moiety of the melwaram for the worship of Iravatheeswarar temple and the other moiety for the worship of Alaginachiamman temple and they further agreed that whether they cultivated the endal, uanja and punjai, or laid them waste, they would for ever pay the agreed rent in the Kunnakudi temple and obtain receipt therefor.

7. It is clear from these documents that the whole area within the four boundaries was granted, that the grant was permanent, that the grant was made in view of the contemplated reclamation and cultivation of the area computed to be cultivable which was but a fraction of the whole, that though reclamation and cultivation of the cultivable part was contemplated, the grantees were bound to pay the full rent from the fourth year whether they reclaimed and cultivated or left the land waste; and that the rent was from the fourth year to be unvarying whether the land was cultivated more or less or not at all. What has happened apparently is that the district has become far more valuable as house sites than it can be if cultivated and therefore the lessees have parcelled out the land in plots to various people for building houses and probably derived much profit thereby. The Kunnakudi Devasthanam has therefore made repeated attempts to avoid the cowle of 1865 and to get back possession. Thandavaraya, the dharmakartha who died in 1902 and whose name appears in Nataraja Thambiran v. Kailasam Pillai . executed a fresh lease of the endal to one Raman Chetty and with his lessee brought several suits in 1900 against some of the persons in occupation which ultimately failed. (See para. 12 of written statement.) Between Thandavaraya who became dharmakartha in 1893 on the death of Arumuga and Deivasikhamany the grantor of the cowle of 1865 there were it seems 2 or 3 Pandarasannadhis. They never questioned the cowle though they must have been aware of the assertion by the cowledars of their permanent tenancy and possession under it and indeed must have accepted rents on the footing of the existence of such right. Thandavaraya actively sought to repudiate the cowle by his lease to Raman Chetty and the suits of 1900. The present suits were brought in 1918. If anything depends on the, intention of the defendants to assert a title of permanent occupancy tinder the cowle adversely to the plaintiff's Devasthanam and on the knowledge of that Devasthanam that such assertion was being made, there can be no doubt that from at least 1902, i.e., for more than 12 years before the suit, the defendants have been asserting such right to the knowledge of Thandavaraya and his successors, whoever they were. If the period of limitation for these suits began to run in or at any time before 1902 it is clear that the running of time against the plaintiff would not be suspended by the fact that after the death of Thandavaraya in 1902, the office of Pandarasannadhi and dharmakartha was in litigation from 1905 between Nataraja who set up claims to the office and those who disputed his claim and that it was only in 1920 that Nataraja was finally declared by the Privy Council not to have been validly appointed.

8. The appellants concede that the cowle of 1865 being a permanent alienation of temple property at a fixed rent was in the circumstances unjustified by any necessity or benefit to the temple and therefore beyond the power of the dharmakartha and invalid: Palaniappa Chetty v. Sreemath Devasikamony Pandora Sannadhi . But they contend that the suits instituted in 1918 to recover possession of property held under it is barred either under Article 134 or Article 144. The respondents contend on the contrary that a dharmakartha is not a trustee within the meaning of Article 134 and as to Article 144 that limitation for recovery of possession of lands improperly alienated by a dharmakartha runs not from the date of the alienation but from the death of the alienating dharmakartha and of every succeeding dharmakartha who assents to the alienation so that a new cause of action accrues on the assumption of office of every succeeding dharmakartha. For this the decision of the Privy Council in Vidya Varuthi Thiriha v. Balusami Aiyar is relied on. Further, the respondent's learned advocate has gone to the length of contending that it is impossible for a title to a permanent lease to be acquired by adverse possession and that so long as rent is paid under the invalid permanent lease, possession cannot become adverse to the owner even to the extent of the lease alleged if it should be alleged to be permanent. The argument on these matters has ranged over a wide field involving-reference to a great number of decisions; but we will confine ourselves to those necessary for the decision.

9. If the limitation applicable to these suits were to be determined according to the provisions of the Act as they now stand, the decision would be easy enough as the case would be governed by Article 134-B introduced by Act I of 1929. But the decision must be on the Act as it stood in 1918. To state our conclusion shortly, it is that while we think Article 144 is the one applicable, it is immaterial in this case from which date adverse possession is held to run, the date of the cowle or some subsequent date, as in either case the suits are barred. We cannot agree with the learned Subordinate Judge that the plea of acquisition of permanent tenancy by adverse possession was not raised in the case and indeed his own decision rests on the basis that the defendants have by long and adverse enjoyment acquired the cowle rights which according to him are those of agricultural tenants and which they must not violate by erecting permanent structures. We cannot also agree with the respondents' contention that it is impossible so long as any rent is paid or received for a title to a permanent lease to be acquired by adverse possession in India. The contrary has been held in many cases and must be held now to be beyond possibility of dispute: Sankaran v. Periasami I.L.R. (1890) 13 M. 467. Parameswaran Mumbannoo v. Krishnan Tetigal I.L.R. (1902) 26 M. 535. Icharan Singh v. Nilmoney Balidar I.L.R. (1908) 35 C. 470, Ram Rachhya Singh v. Kumar Kamakhya Narayan Singh I.L.R. (1924) 4 Pat. 139, Subbayya v. Madduletiah (1907) 17 M.LJ. 469 and Narsaya Upada v. Venkataramana Bhatta : (1912)23MLJ260 But it was urged that no tenant of lands in India can obtain any right to a permanent tenancy by prescription and the decision of the Privy Council in Nainapillai Marakayar v. Ramanathan Chettiar was cited. What that decision means is that a tenant who has entered into possession under a valid lease which is not permanent cannot by his own assertion or act during the tenancy enlarge his rights into a permanent tenancy. That is not applicable when possession is held without valid tenancy or after a tenancy has terminated. If therefore the cowledars in this case and their transferees who admittedly got no valid right to any permanent tenancy from the dharmakartha have been in possession in open assertion of that right from 1865 and if it appears that from 1902 at the latest the dharmakarthas knowing of the asserted right have allowed the defendants to be in possession under such right till 1918 we fail to see how the defendants' possession could be anything but adverse so far as the permanent tenancy is concerned or how they can be evicted after 12 years of such adverse possession. In the case cited their Lordships say:

A permanent right of occupancy in land in India is a right subject to certain conditions of a tenant to hold the land permanently which he occupies, It is a heritable right and in some places it possibly may be transferable by the tenant to a stranger. That permanent right of occupancy can only be obtained by a tenant by custom or by a grant by an owner of the land who happens to have power to grant such a right or under an act of the Legislature.

10. Custom was not proved. The statute pleaded did not support the plea. There was no grant of any permanent occupancy and all that was proved to be granted was nothing higher than a tenancy at will. Here there is a grant of a permanent cowle though an invalid one being in excess of the dharmakarthas' powers. As to the effect of such grants their Lordships say:

In the case of a shebait a grant by him in violation of his duty of an interest in endowed lands, which he has not authority as shebait to make, may possibly under some circumstances be good as against himself by way of estoppel but is not binding upon his successors.

11. It is to be noted that their Lordships were not considering the effect of possession under an invalid grant continued not only during the lifetime of the granting shebait but also during the lives of several of his successors against whom the grant was not binding and for more than 12 years after one or more of these successors have repudiated it.

12. The respondent attempts to meet this difficulty in the following way. A dharmakartha is not a trustee in the English sense as no property vests in him but in the idol. Alienations by him in excess of his powers may be good for his lifetime. Every succeeding dharmakartha has a fresh period of limitation after his accession to office to acquiesce in or repudiate: an invalid alienation of temple property by any of his predecessors. If he does not repudiate it, it remains good for the period of his own office but not beyond. If he repudiates it but does not succeed in recovering the property for the temple, still the idol to whom the property belongs is not affected by limitation as it is in the position of a perpetual minor. The result of this argument if accepted would be that there is no period of limitation to recover temple property improperly alienated by a dharmakartha. For this chain of argument Vidya Varuthi Thirtha v. Balusami Aiyar (1921) L.R. 48 IA. 302 : I.L.R. 44 M. 831 : 41 M.L.J. 346 (P.C.) and Rama Reddy v. Rangadasan I.L.R. (1925) 49 M. 543 are principally relied on. We may at once dispose of the argument based on the perpetual minority of an idol that no limitation or adverse possession can run against it except in favour of a person who trespasses on the temple property. In Rama Reddy v. Rangadasan I.L.R. (1925) 49 M. 543, there are passages which lend support to this view. See pp. 549 and 550. One of us was a party to this decision. On reconsideration we beg respectfully to point out that though it may be convenient to speak of an idol as a minor for certain purposes, e.g., for the purpose of determining the powers of the manager of temple property, Prosunno. Kumari Debya v. Golab Chamd Baboo and Abhiram Goswami v. Shyama Chiaran Nandi and though by an easy extension of language the idol may be spoken of as a perpetual minor, it is illogical to extend to idols the privileges as to limitation of actions conferred on minors in the Limitation Act. The minors dealt with in that Act are; human beings, not juristic persons like idols and corporations who being themselves the creatures of a legal fiction can only hold property in an ideal sense. The acquisition, protection and loss of property by juristic persons can result only from the acts of natural persons and there is the highest authority for the view that notwithstanding the; figurative minority attributed to idols, they are affected through the act of their managers by the rules of limitation and adverse possession. The possession and management of dedicated property belong to the shebait in whom and not in the idol is vested the right to sue when necessary for the protection of the property. Therefore the minority which may affect limitation in such cases is of the shebait and not of the idol. (Jagadindra Nath Roy v. Hemanta Kumari Debi , Damodar Das v. Lakhan Das and Chitar Mal v. Panchu Lal I.L.R. (1925) 48 A 348.)

13. If then limitation and adverse possession of temple property against the manager or dharmakartha may affect the idol and it is possible to acquire by adverse possession a title to a permanent lease the question is whether in respect of an invalid permanent lease of temple property under which property is held by the alienee, limitation should be held to run from the date of the alienation or from some subsequent date such as the death, resignation or removal from office of the alienating dharmakartha and of all his successors who have assented to this alienation. In the Lower Court the defendants contended that the suits fall under Article 134 of the Limitation Act and to this the answer was that the Privy Council decision in Vidya Varuthi Thirtha v. Balusami Aiyar . has held that dharmakarthas are not trustees within the meaning of that Article. This was-accepted by the learned Subordinate Judge. The case itself was of a permanent lease by a Matadhipathi of part of the general endowment of a Mutt which was not the subject of any specific trust. The points before the Court were whether a Matadhipathi was a trustee within the meaning of Article 134 and whether adverse possession could be claimed by a permanent lessee from a Matadhipathi under Article 144. The judgment of their Lordships dealing with the first point contains an elaborate discussion of the legal position of not only Matadhipathis but dharmakarthas and managers of temples and other Hindu and Mahomedan religious foundations. The conclusion was that they were not 'trustees' within the meaning of Article 134 nor were the general endowments 'conveyed in trust' to them so as to attract the application of Article 134. This decision was pronounced in 1921, three years after these suits began. It was in fact in consequence of doubts created by this decision and by later decisions of their Lordships and of the Indian Courts which were not always uniform as to its true meaning and effect, that in 1929 the new ArticleS 134-A, 134-B and 134-C were added. So far as the defendants rested their case of limitation on Article 134 this decision is conclusive against it. But the decision on the second point dealt with, i.e., whether adverse possession under Article 144 could be claimed by a permanent lessee from a Matadhipathi and if so from what date, that is not applicable to this case. It was in terms confined to unauthorised alienations by a Mahant or Matadhipathi and proceeded on the ground that a Mahant could, by reason of his personal interest in the income of the Mutt property, apart from any question of necessity of the Mutt, part with possession of the Mutt property for his own life, and his successors could also do likewise. Each Mahant, who allowed possession under the invalid alienation, must: be held to have authorised a new tenure for his own life during which period the alienee's possession would not be adverse to the Mutt. Prima facie, this reasoning has no application to alienations by a temple dharmakartha like the one who granted the cowle in this case who has no personal interest for life or otherwise in the income of the temple property and to whom therefore no intention to part with possession of that property during the currency of any such interest can be attributed. For, a dharmakartha is literally and no more than the manager of a charity and his rights, apart in some circumstances from the question of personal support, are never higher than those of a mere trustee: Srinivasa Chariar v. Evalappa , Mudaliar. But decisions on the point have varied. Even in the case of alienations by Mahants their Lordships of the Privy Council recognised in Lalchand Marzwari v. Mahanth Ramrup Gir that there may be some in which adverse possession runs from the dates of the wrongful alienations or at any rate from the date of final abandonment of office of the alienating Mahant and not only from his death. As to temple dharmakarthas there are in this Court on one hand the decisions in Rao Bahadur Govinda Rao v. Chinnathurai Pillai : AIR1926Mad193 affirmed on another point in Chinnuathorai Pillai v. Rao Bahadur Govinda Rao : (1927)53MLJ306 and Rama Reddy v. Ramadasan I.L.R. (1925) 49 M. 543 already referred to which apply the decision in Vidya Varuthi Tirtha v. Balusami Aiyar and on the other Kuppuswami Mudaiiar v. Samia Pillai (1921) 42 M.L.J. 1. Khaji Mir Majavath Alli v. Khaji Mir Mujafar Alli : (1923)45MLJ791 . and Vadlamudi Sastrulu v. Thalluri Venkataseshayya (1927) 110 I.C. 894. which hold that that decision does apply to dharmakarthas and leaves untouched the case of Gnanasambanda Pandora Sannadhi v. Velu Pandaram and the other Privy Council decisions in Abiram Goswami v. Shyama Charan Nandi , Damodar Das v. Lakhan Das and Ishwar Shyam Chand Jiu v. Ram Kanai Ghose . In Vadlamudi Sastrulu v. Thalluri Venkataseshayya (1927) 110 I.C. 894 Mr. Justice Phillips who gave judgment in Rao Bahadur Govinda Rao v. Chinnathurai Pillai : AIR1926Mad193 was a party. It was held by Ramesam, J., that the decision in Vidya Varuthi Thirtha v. Balusami Aiyar as to adverse possession must be confined to the case of a Mutt and that in the case of a sale by a manager of a temple or chatram it does not matter whether he can be properly described as a trustee. For if Article 134 does not apply, Article 144 would apply from the date of the sale. In the case of a permanent lease also seeing that a temple manager has no beneficial interest which he can lawfully convey, the adverse possession would run from the date of lease, if as a question of fact it is found that the lessee asserted his rights to the knowledge of the dharmakartha adversely to the temple. To this Phillips, J., assented adding that the decision in Vidya Varuthi Thirtha v. Balusami Aiyar must be confined to its own facts--alienations by Mataclhipathi. We think that this opinion is right. Whether the proper date from which. adverse possession generally runs in cases of permanent lease by dharmakarthas be taken as the date of the alienation or some subsequent date as the death of the dharmakartha or his resignation, or removal from office we have no doubt that on the facts of this case adverse possession began from before 1902 and that the suits for possession were therefore barred under Article 144.

14. The next question relates to the right of the defendants to erect buildings on the property and whether the injunction against them can stand. Owing probably to attention being concentrated on the main part of the case at the trial, the evidence as to facts necessary to be proved on this part of the case is practically non-existent. There are before us 11 cases of different persons in possession of different plots. There is practically no evidence as to what are the buildings erected by the several defendants on their several holdings and their nature and how long ago and under what circumstances each was built. The learned Judge in para. 13 of the judgment says:

I find that the use of the lands for purposes other than agriculture disentitles the defendants to retain possession of the lands. But the remedy as (by way of) forfeiture is an extreme remedy. As the defendants have not erected pucca constructions on the suit property but only raised compound walls here and there relief by way of injunction to remove the buildings and restore the lands for being cultivated would satisfy the ends of justice.

15. In the decretal part he awarded the plaintiff an injunction ordering the defendants to remove the walls and buildings raised on the plaint lands in three months. There is much confusion here as to whether it is buildings or walls or both that have been erected. In the absence of clear evidence the learned advocates have referred us to the allegations in the several plaints from which it is seen that in four cases compound walls and tiled structures of some kind exist including in one plot a rice mill, in five other cases only compound walls exist, and in two, there are neither walls nor buildings but stones have been collected.

16. The learned Judge fell into another error in concluding that because there were some areas in the endal which were cultivable and intended to be cultivated, the lease; as a whole was purely agricultural and the tenant was bound to use the whole of the property demised either for raising wet crops or to leave it waste for ever. He is wrong when he says that the whole endal, within the boundaries mentioned is not included in the cowle. That it so included is clear from Ex. B. He says that no commission was issued to find out the total extent of the endal. Without doing so and finding out the particular spots intended for cultivation in Ex. B, it was imppssible to say whether the several plots used for buildings by the defendants are or are not included in the cultivable area. The result is that there is no evidence on which it can be said that any of the defendants have built on area which was reserved for cultivation. On this ground, if on no other, the decree for injunction cannot stand.

17. The learned Judge was also in error in thinking that the defendants had incurred forfeiture of the tenancy by building on the land. Assuming, what is not proved, that any of the buildings or walls are on land intended for cultivation at the time of the cowle, the tenants cannot incur forfeiture thereby. The provisions of the Transfer of Property Act are not per se applicable to agricultural leases nor to this cowle which is of the year 1865. In Noyna Misser v. Rupikun I.L.R. (1882) 9 C. 609 a tenant of an agricultural holding planted it with mango trees to the knowledge but without the consent of his landlord thus changing the character of the land. More than three years afterwards the landlord sued for a mandatory injunction to have the mango trees removed. Wilson, J., delivering the judgment of the Bench said:

No authority has been cited to us, nor any reasoning satisfactory to our minds tending 'to show that where a tenant has been guilty of a breach of duty in the use of his land such as making a tank in it, building on it improperly, or changing the character of the cultivation this operates necessarily as a forfeiture and renders him liable to be evicted.

18. Even in cases to which Section 111 of the Transfer of Property Act applies forfeiture is incurred only by breach of an express condition entitling the lessor to re-enter or for denial of the lessor's title and in case the lessor should give notice of his intention to terminate the lease. (Parameshri v. Vitappa Shanbaga I.L.R. (1902) 26 M. 157 : 12 M.L.J. 189 and Maharaja of Jeypore v. Rukmini Pattamahdevi. (1919) L.R. 46 LA. 109 : I.L.R. 42 M. 589 : 36 M.L J. 543 (P.C.) There is no such ground in these cases.

19. Lastly it is urged that no lessee is entitled with the lessor's consent to erect permanent structure on the land except for agricultural purposes and that the plaintiff is entitled to an injunction on that ground. Section 108 (p) of the Transfer of Property Act is relied on. Having regard to the utter want of evidence as to the nature of the buildings and when they were ' erected it is impossible to give any effect to this contention even if it were otherwise valid. In Noyna Misser v. Rupikun above referred to, there was a prayer for an injunction to uproot and remove the mango trees. This was refused as the landlord had stood by for more than three years and allowed the tenant to spend his labour and capital upon the land without taking any action and in such circumstances under Section 56 of the Specific Relief Act the Court would not grant an injunction. From the evidence of the only witness which was referred to at the hearing, house building in the endal began about 1897 and there are about 35 buildings in the portions of the endal sold by the cowledars. It was about some of these buildings which Thandavaraya went and saw in 1898 that he brought suits in 1900. In fact the place has become a small residential colony. The rice mill erected by the defendants in S.A. No. 169 was erected in 1916 or 1917. The compound wall in S.A. No. 164 was erected in 1915 or 1916 and that in S.A. No. 173 between 1908 and 1911. On this evidence this suit for an injunction must in some cases at least be barred by limitation under Article 32. In any case having in view the principles on which the Court will act in awarding mandatory injunction to remove structures already completed the plaintiff has utterly failed to show that he is entitled to this remedy which would be discretionary even if he were entitled to prevent buildings being put up. (Ulagappan Ambulant v. Chidambaram Chetty : AIR1926Mad193

20. But in cases like the present which are not governed by the Transfer of Property Act, the law applicable would be the English Law. See Maharaja of Jeypore v. Rukmini Pattamahdevi. According to that law, the tenant may lawfully erect buildings which improve the value of the land. (Jones v. Chappel and Meux v. Cobley. In this Presidency a tenant who has a permanent right of occupancy in agricultural land within a zamindari may be prevented from erecting buildings which are unsuitable: for agricultural purposes. (Ramanadhan v. Zemindar of Ramnad I.L.R. (1893) 16 M. 407 : 3 M.L.J. 185 and Orr v. Mrithyunjaya Gurukkal. I.L.R. (1900) 24 M. 65. That is because: the tenant is not entitled to change the character of the holding so as to endanger the interest of the landlord who is entitled to a rent which may vary according to the nature and extent of the cultivation. It can have no application to a case like the present where the rent is fixed and not liable to increase or decrease and is payable whether the land is cultivated or left waste. In a permanent lease of the present character at an unvarying rent it cannot be said that the character of the holding will be changed or the landlord's interest imperilled by the erection of buildings. On the contrary the tenant being entitled in the absence of any express prohibition to use the land in any way not inconsistent with the purpose of the letting and the interests of the landlord, the erection of houses would appear only to increase the landlord's security.

21. For these reasons we think that the injunctions granted by the learned Judge must be refused.

22. In the result the second appeals are allowed and the suits dismissed with costs throughout.

23. The memorandum of objections is dismissed. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //