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Venkitachalam Vs. V. Subramania Pillai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1978CriLJ121
AppellantVenkitachalam
RespondentV. Subramania Pillai
Cases ReferredRangasami Chetty v. P.N. Perumal
Excerpt:
.....being such a trustee, office-holder or servant, is definitely excluded. perumal 1972 mad lw 213. 9. therefore the question is whether the person claiming the possession of the property is in lawful possession of the said property in good faith, from the above discussion, i have no hesitation to hold that the respondent's claim is a bona fide one made in good faith......taken under this provision of law. on the contrary, tine provision is explicitly restricted to a person in possession who is a trustee, office-holder or servant of the religious institution or one who has 'been dismissed or suspended from such office, or any person claiming or deriving title from such trustee, officeholder or servant. this is a positive limitation. not merely this. there is also a negative limitation; in that a person who could claim in good faith to be in possession on his own account, or on account of some person not being such a trustee, office-holder or servant, is definitely excluded.vide also the decision in rangasami chetty v. p.n. perumal 1972 mad lw 213.9. therefore the question is whether the person claiming the possession of the property is in lawful.....
Judgment:
ORDER

Ratnavel Pandian, J.

1. The criminal revision case is against the order of the Sub Divisional Judicial Magistrate, Usilampatty dismissing the petition in C. M. P. No. 270 of 1974 in so far as the respondent herein is concerned,

2. One Venkitachalam, petitioner herein, as trustee of Sri Alagarasamy Madam, Allinagaram village, Periakulam Taluk and in pursuance of the certificate issued to him by the Deputy Commissioner, H. R, & C. E. (Administration) Department, Madurai Under Section 101 of the H. R. & C. E. Act, has filed the said C.M.P. No. 270 of 1974 in the court of Sub- Divisional Magistrate, Usilampatty for directing the respondents 1 to 10 to deliver the temple properties mentioned in the schedule attached to the petition. The first respondent is reported to have expired. Except the 6th respondent the other respondents have filed petition stating that they have no objection for the petition being allowed. The 6tti respondent alone has filed a counter stating that he is a bona fide tenant having derived tenancy lawfully from the previous trustees and that his claim to remain in possession is made in all good faith. He would further contend that he is a tenant from the year 1953 onwards as per the Madras Buildings (Lease and Rent Control) Act, I960 and that he cannot be ordered to be evicted except under the provisions of the Madras Bulidings (Lease and Rent Control) Act, 1960.

3. The learned Sub-Divisional Magistrate, after going through the evidence adduced in this case, held that the claim of the 6th respondent to be in possession on his own account is in good faith and dismissed the petition as against the 6th respondent.

4. Aggrieved by that order, the petitioner has preferred this criminal revision case, contending that the lower court has erred in holding that the respondent is in possession of the property under a valid lease agreement entered into between the 6th respondent (respondent) and the previous lawful trustee and that he is now in possession as a tenant by holding over.

5. The questions that arise for consideration are whether the respondent is a tenant toy holding-over or a trespasser and whether Section 101 of the H. R. & C. E. Act is applicable to the facts of the present case.

6. Out of ten respondents-, in the trial court itself the first respondent was reported to have expired. Respondents 2 to 5 and 7 to 10 stated, that they have no objection for ordering delivery of the properties to the petitioner. The respondent (6th respondent before the trial Magistrate) claims to be a bona fide tenant having derived tenancy lawfully from the previous trustees and therefore his claim to remain in possession of the suit property is in all good faith. Mr. C.F. Louis appearing for the petitioner would strenuously contend that the learned Magistrate has erred in observing that the respondent (6th respondent) is in possession as tenant by holding over. According to him, the claim made by the respondent is not a bona fide one and he is a trespasser. The respondent in support of his contention has filed on his side two documents namely (l) a registered notice dated 22-8-1971 signed on behalf of the petitioner to him and (2) a copy of the reply notice dated 16-9-1971 sent by the counsel of this respondent to the counsel of the petitioner. The property in dispute is in respect of a rice mill building with the superstructures situated in door No. 46, Ward No. 8 Nehruji Street, Allinagaram. in Periakulam Taluk, as set out in Sch. B to the petition filed by the petitioner. It is seen from the registered notice dated 22-8-1971 sent t0 the respondent by the petitioner's counsel that the respondent has to execute a fresh lease agreement to the petitioner regarding the lease of the property in question and the respondent should pay the arrears of rent to the petitioner. The respondent by his reply dated 16-9-1971, has stated that he does not dispute that the petitioner is a trustee of the temple, nor the validity of the order passed appointing him as- trustee. Further he has stated in clear terms that he is prepared to at torn to the present trustee, namely the petitioner as his landlord and ready to execute a fresh lease deed in respect of the property in question. Therefore it is not disputed by the petitioner that the respondent is a tenant of the properties belonging to the said Sri Alagarasamy Madam and the respondent is in possession of the suit properties on obtaining a lease deed from the previous lawful trustee. As the learned Magistrate teas Observed that it is not shown that the lease granted by the previous trustee-in-office is either unlawful or illegal, the respondent has therefore to be held in possession of the property under a valid lease agreement entered into between him and the previous lawful trustee which lease was for a period till 19-2-1973 and he still continues to be in possession of the property.

7. Mr. Louis would contend that the respondent is only a trespasser, but not, a tenant holding over. In support of his contention, he would rely upon the ruling, Salay Md. v. J.M.S. Charity 1969 1 Mad LJ 16. This ruling relates to the Madras Buildings (Lease and Rent Control) Act, 1960 defining the scope of Section 2(2) of the Act- After going through the above decision I am of the view that the principles laid down under this ruling cannot be made applicable to the facts of this case which stand entirely on different footing. The second one relied upon by the learned counsel is a decision in M.A. Irani v. M.E. Mistry : [1975]2SCR341 . In this case, - the Supreme Court while dealing with Section 4-B of the Bombay Tenancy and Agricultural Lands Act (Act 67/48) has held that if a tenant after the termination of the lease is in possession without the consent of the landlord, he is a tenant toy sufferance and is not entitled to the protection Under Section 4-B and What it is only where a tenant will continue in possession with the consent of the landlord that he may be called a tenant holding over or a tenant- at-will. The Supreme Court has further observed that a tenancy is a matter of privities of parties and where the landlord never gave consent to hold over the tenant is only a trespasser. I am afraid how far this ruling would be helpful to the petitioner as to the facts of the present case. But in fact, if we apply the principles laid down in this case, it would be helpful only to the respondent. As I have already narrated, the petitioner himself has admitted in his legal notice that the respondent was in possession of the property on the strength of the lease agreement entered into between him and the previous trustee and the present trustee expressed his willingness to allow him to continue in possession provided the respondent was prepared to execute a fresh lease deed in his favour. The respondent had also expressed his willingness to attorn the tenancy in favour of the petitioner. Therefore the respondent has to be held to have been in possession of the property with the consent of the landlord. After having consented the respondent to be in possession of the property, the present contention of the petitioner that he is a trespasser is incomprehensible. The learned Magistrate in my view 'has rightly relied on the observation made (by the Andhra Pradesh High Court in a judgment reported in Danamurthy v. Balayya 1959 Mad LJ 368 which is to the effect that the Magistrate while dealing with the petition Under Section 87 of the H. R. & C. E. Act of 1951 (corresponding to Section 101 of the present Act) must be satisfied either that the person resisting the possession of the lawful trustee derived he title from either a dismissed trustee-office-holder, or other person not entitled in good faith or that he had no shadow of the claim which could be regarded as bona fide and that before any decision could be taken with reference to the body of the section, the Magistrate is required to satisfy himself as to the nature of the claim of the petitioner.

8. Section 101 of the present Act (H. R. & C. E. Act) under the heading 'putting trustee or Executive Officer in possession' deals with the powers of Magistrate in giving direction to delivery of possession of the properties. The de delivery of possession under this section could be directed against three categories of persons. The first consists of trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office meaning thereby disqualified to hold or continue to be in possession; second consists of persons who are otherwise not entitled to be in possession and the third category consists of any person claiming or deriving a title from such trustee, office-holder or servant, not being a person claiming in good faith to be in possession of his own account or on account of some person not being such trustee, office-holder or servant. Therefore if the resistance or prevention is made in good faith to be in possession, it will not come at all within the scope of three categories of persons mentioned in S- 101' of the Act. Anantihanarayanan O.C.J., in a case in Ponnu-swamy v. Nallamuthu reported in : AIR1967Mad141 has observed regarding the scope and applicability of Section 101' of the Act as follows:-

As will be seen from a glance of Section 101 it is not every person who may be in possession of the properties of a religious endowment, against whom a proceeding can be taken under this provision of law. On the contrary, tine provision is explicitly restricted to a person in possession who is a trustee, office-holder or servant of the religious institution or one who has 'been dismissed or suspended from such office, or any person claiming or deriving title from such trustee, officeholder or servant. This is a positive limitation. Not merely this. There is also a negative limitation; in that a person who could claim in good faith to be in possession on his own account, or on account of some person not being such a trustee, office-holder or servant, is definitely excluded.

Vide also the decision in Rangasami Chetty v. P.N. Perumal 1972 Mad LW 213.

9. Therefore the question is whether the person claiming the possession of the property is in lawful possession of the said property in good faith, From the above discussion, I have no hesitation to hold that the respondent's claim is a bona fide one made in good faith. In view of my foregoing discussion, I do not find any error in the order of the learned Magistrate and hence the same is confirmed. This criminal revision case is dismissed.


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