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Palani Roman Catholic Mission Vs. Murugan and Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2149 of 1981 and Civil Revn. Petn. No. 2204 of 1980
Judge
Reported inAIR1984Mad126
ActsTamil Nadu City Tenant's Protection Act, 1922 - Sections 9; Transfer of Property Act, 1882 - Sections 1415; Code of Civil Procedure (CPC), 1908
AppellantPalani Roman Catholic Mission
RespondentMurugan and Co.
Appellant AdvocateThiru M. Veluswami, Adv.
Respondent AdvocateTiru S. Gopalaratnam, Adv.
Cases ReferredSambandam Chetty v. St. Francis Xavier
Excerpt:
tenancy - compromise deed - section 9 of tamil nadu city tenant's protection act, 1922 - compromise deed arrived between petitioner and respondent for vacation of premises within one year on fulfillment of certain conditions - after expiry of tenure rent enhanced and premises not vacated - tenant contended that he was entitled to benefit of section 9 - landlord contended that church property exempted from application of act and denied existence of tenant and landlord relationship - respondent was tenant within meaning of old act after expiration of compromise deed - tenant entitled for protection of section 9. - - 250/~-.subsequently the respondent in these proceedings surrendered a fine of shops as well as a residential house put and entered into another fresh team agreement on.....1. the second appeal and the civil revision petition arise out of a suit in ejectment instituted by the appellant in the second appeal (hereinafter referred to as 'the roman catholic mission') against the respondent therein and proceedings under s. 9 of the tamil nadu city tenants' protection act, 1921 (hereinafter referred to as 'the act') initiated by the respondent in the second appeal and the civil revision petition against the roman catholic mission. an extent of 36,432 sq, ft. of vacant site comprised in t. s. no. 15/1 in ward no. 4, palani town, was originally leased out by the roman catholic mission to one karuppanna gounder on 6-10-1956 for a period of five years on a monthly rental of rs. 67.50. the lessee had pw up certain superstructures thereon. the respondent w these.....
Judgment:

1. The Second Appeal and the Civil Revision Petition arise out of a suit in ejectment instituted by the appellant in the Second Appeal (hereinafter referred to as 'the Roman Catholic Mission') against the respondent therein and Proceedings under S. 9 of the Tamil Nadu City Tenants' Protection Act, 1921 (hereinafter referred to as 'the Act') initiated by the respondent in the Second Appeal and the Civil Revision Petition against the Roman Catholic Mission. An extent of 36,432 sq, ft. of vacant site comprised in T. S. No. 15/1 in Ward No. 4, Palani Town, was originally leased out by the Roman Catholic Mission to one Karuppanna Gounder on 6-10-1956 for a period of five years on a monthly rental of Rs. 67.50. The lessee had PW up certain superstructures thereon. The respondent w these proceedings and one Animal purchased the superstructures from Karuppanna Gowuler and on- 25-6-1959, entered into a fresh lease with the Roman Catholic Mission for the unexpired period of the lease on a monthly rental of Rs. 901- in respect of the entire extent originally leased out to Karuppanna Gounder. The original, lessee KarupPenna. Gounder had; also petitioned the Municipality for the transfer of the registry in favour of the pm-chasers. After the expiry of the lease entered into on 25-6-1959, the respondent in these proceeding entered into a fresh lease agreement with the Roman Catholic Mission on 1-11-1-961 for a period of three Years in respect of the entire extent on a monthly rental of Rs. 250/~-. Subsequently the respondent in these proceedings surrendered a fine of shops as well as a residential house put and entered into another fresh team agreement on 3-31965 for -a period of three years on a monthly rental of Us. $N- in respect of an extent of 26,037 sq. k an the western portion of T. S. N 15/1, The Roman Catholic Mission issued a notice on 28-81968 calling upon the respondent in these proceedings to deliver vacant possession of that property for the purpose of putting up a shed and also for providing a playground for the children and for holding! Bible clams. In response to that, the respondent in these proceedings sent a reply on 6-9-1968 requesting the Roman Catholic Mission to execute a fresh lease agreement for a period of three years as per the terms of the lease deed dated, 34-1965 under . which the respondent in these. proceedings had been given an option to seek: a renewal of the lease for a period, of three years. The Roman Catholic Mission.. did not accede to the request. of the respondent in these proceedings, but instead filed a suit in 0. S. No., 218, of 1969p . District Munsiff's Court-Palani, for recovery of vacant possession. The. respondent in these proceedings, in,her turn, instituted 0. S. No.,75 of 1970, District Munsifs Court, Palani, for directing the Roman Catholic Mission to execute a.fresh. lease in, her favour. Ultimately, on 14-12-1970, 0. S. No. - 218 of 1969 ended. in a compromise. The terms of. the compromise were as follows:

'1. A decree for Possession may be passed by granting the defendant one year time from to-day to vacate the property.

2. If even before the expiry of the period of one year the plaintiff requires the site for shifting the Therasammal School the defendant should vacate the property within one month of receipt of a notice from plaintiff intimating, of such requirement.

3. If even after the, expiry of one year referred to above - the site is not required by the plaintiff for its-own occupation the defendant is entitled to continue an a monthly rent of Rs,'150/-.'

4. All arrears of rent UP to 30-11-70 have been Paid by the defendant and received by plaintiff calculating at the Old rate of P.S. 85/- Per month till 30-9-70 and at the new rate of Rs., 150/- Per month on and. from 1-10-70. Rents falling due on and from 1-12-1974 shall be paid by the defendant At the rate of Rs.l50/- by the, Ist week of every succeeding English month.

5.That suit in O.S.No. 75 of 1970 filed by the defendant herein as plaintiff shall be allowed by her to be dismissed as settled out of court.

6. Each party should bear its own costs in this suit'. On the basis of the aforesaid Memorandum of Compromise, a decree was granted on 14-12-1970 in 0. S. No. 218 of 1969 in the following terms:

'1. that the defendant do put the plaintiff in possession of the suit property within one year from the date of this decree;

2. that it even before the expiry of the period of one year the plaintiff requires the site for shifting the Theresammal School -the defendant shall vacate the property. within one month of receipt of a. notice from the plaintiff intimating of-such. requirement;

3. that if even after the expiry of one year the site is not required by plaintiff the defendant is entitled to continue on a monthly rent of Rs. 150/-;

4. that the quantum of future mesn6 profits from 1-12-1970 is left open to be decided in separate proceedings, and

5. that the parties shall bear their own costs'.'

In accordance. With terms of the compromise earlier referred to, on,14-12-1970, 0. S., No. 75 of 1970,. District Munsif's.Court, Palani, was also dismissed as settled out of court. Further, on 14-12-1970, the Roman Catholic Mission issued a receipt to the respondent in these proceedings for. a sum of Rs., 1,9151 for the arrears of rent for the period of 19 months at the rate of Rs. 85/- per mensem, from 1-3-1969 till 30-9-1970 and at the rate of Rs. 150/_ per mensem for October and November. 1970. Subsequently, the respondent in them proceedings had been paying the rent at RS. 450/- per mensem. On 25-1-1976., the, Roman Catholic Mission sent-a letter-demanding enhanced rent, at the rate of US. 260/- per mensem from the respondent in these proceedings on the ground that the Roman I Catholic Mission was paying an annual property tax of Rupees. 891/-, for which the, respondent in these proceedings sent a reply on 24-3-1976 expressing inability to accede to the decree demand for enhanced rent. Again the Roman Catholic Mission.

In response to this, the respondent issued a notice on 5-7-1976 to the effect that there was no need to sign any rental agreement in view of the decree of court in 0. S. No. 218 of 1969. Thereafter, on 11-3-1977, the Roman Catholic Mission issued a notice to the respondent in these proceedings to the effect that under the terms of the compromise in 0. S. No. 218 of 1969, the respondent in these proceedings should have vacated the property in her occupation within one year, but that she did (not) do so and that as the premises were required for the purpose of the Roman Catholic Mission, she should vacate the premises and deliver vacant possession and that such a claim was made without prejudice to the rights of the Roman Catholic Mission to execute the decree obtained in 0. S. No. 218 of 1969. On 15-3-1977, the respondent in these proceedings sent a reply admitting the earlier proceedings in 0. S. No. 218 of 1969 and 0. S. No. 75 of 1970 and the compromise therein on 14-12-1970 and stating that there was no need at all for the Roman Catholic Mission to shift the Therasammal School within one year, that is, within 14-12-1971 and as a result thereof, under Clause 3 of the compromise decree in 0. S. 218 of 1969, she had continued to be a tenant and entitled as such to remain in possession so long as she paid the rent of Rs. 150/-. The requirement. of the Roman Catholic Mission was also disputed. It is thereafter that the Roman Catholic Mission instituted 0. S. No. 76 of 1977, District Munsif's Court, Palani, praying for recovery of possession of the property in the occupation and enjoyment of the respondent in these proceedings after the removal of the superstructure.

2. In the written statement filed, while accepting the terms of the compromise entered into in 0. S. No. 218 of 1969 and the decree thereon, the respondent in these proceedings contended that as the Roman Catholic Mission required the property in her occupation for the purpose of shifting the Therasammal School she had agreed to vacate the premises within a period of one year if the property was actually so required by the Roman Catholic Mission, that if it was not so required, as had actually happened, she was entitled to continue as a tenant andinfact the Roman. Catholic Mission did not require the premises and, therefore, the respondent in these proceedings had continued to be in possession as a tenant as before on payment of the rent of - Rs. 150/- per mensern. After referring to the demand for enhanced rent and the sending of a printed rent deed for her signature and her refusal to sign the same on the ground that the compromise decree was sufficient to evidence the lease in her favour, the respondent in these proceedings stated that she had been treated and accepted as a tenant by the Roman Catholic Mission and rents had also been regularly paid and received and that the claim of the Roman Catholic Mission that the decree dated 14-12-1970 subsisted was not correct. While, therefore, refuting the claim for recovery of possession made by the Roman Catholic Mission, the respondent in these proceedings also raised an objection that the suit was not maintainable without a notice as contemplated under S. 11 of the Act. The respondent in these proceedings further stated that she would be taking separate proceedings under S. 9 of the Act. On these grounds, she prayed for the dismissal of the suit.

3. Consistent with the stand taken by the respondent in these proceedings in her written statement, she filed 0. P. No. 4 of 1977 before the District Munsif, Palani, under S. 9 of the Act. In that application filed on 6-6-1977, after service of summons in the suit on 25-41977, after referring to the compromise decree in 0. S. No. 218 of 1969 and her continuing to remain in possession of the property even thereafter as a tenant and stating that the provisions of the Act had been extended to the area in question with effect from 31-5-4975 by means of G. 0. Ms. No. 1285, Revenue, dated 31-5-1975, the respondent claimed that she was entitled to an order directing the sale of the site in her occupation and enjoyment by the Roman Catholic Mission. That application was resisted by the Roman Catholic Mission on the ground that the relationship of landlord and tenant, though created under lease deed dated 3-3-1965, did not continue to operate as a result of the decree in 0. S. No. 218 of 1969, which subsisted till date and that under the terms thereof, the respondent in these proceedings could not claim benefits as a tenant. It was the further plea of the Roman Catholic Fissions that the application filed by the respondent in these proceedings under S, 9 of the Act was out of time.

4. The learned District Munsif tried the suit in abetment as well as the application under S. 9 of the Act separately. On a consideration of the oral as well as the documentary evidence, the learned District Munsif found that no tenancy substituted between the Roman Catholic Mi-ion and the respondent as. according to the of the compromise decree in 0. S, No. 218 of 1969, the tenancy W been terminated and the respondent a these proceedings cannot be regarded as a person in possession of the property by payment of rents. Incidentally, dealing with the claim of the respondent proceedings to the benefits of S. 9 of the Act~ the learned District Munsif was ad the view that the filing of the application an 6-6-1977, while the sum-_ saws in the suit, was served. on 25-4-1977, would result in the application being barred by limitation. The statutory notice under S, 11 of the Act -as hold to have been waived by the respondent in these proceedings in view of the filing of 0. P, No. 4 of 1977. In that view, the learned District Munsif granted a decree in ejectment in favour of the Roman Catholic Mission and also a decree for mandatory injunction for the removal of the superstructures. Dealing with the application under 9 of the Act, the learned' District Munsif found that by reason of the earlier decree in 0. S. No. 218 of IN9, the relationship between the Bonian Catholic Mission and the respondent in these proceedings cannot be stated to be that of landlord and tenant, that she was not entitled to the benefits of the Act and further that the applicetion under S. 9 of the Act was also out of time. though the entire extent of the Property in the possession and occupation of the respondent in these proceedings would be necessary for her conventent enjoyment. on these conclusions, 0. P. No. 4 of 1977 was dismissed.

5. Aggrieved by the decree, the respondent in these proceedings preferred an appeal in A. & No. 121 of 1978 to the court of the Principal Subordinate Judge Dindigul. Against the dismissal of 0. P. No. 4 of 1977, arising out of proceedings under S. q of the Act the respondent in these proceedings preferred C.M.A. No. 94 of 1978 to the Principal Sub-Court, Dindigul. On a reconsideration of the entire oral as well as the documentary evidence, the learned Subordinate Judge was of the view that the relationship between the Roman Catholic Mission and the respondent in these proceedings was that of landlord and tenant and that even after the passing of the decree respondent had been accepted as a tenant and continued to remain in possession as such after the expiry of the period of one year mentioned in the compromise decree and as such she would be entitled to the benefits of the Act. Dealing with the objection raised by the Roman Catholic Mission that the property was not such as to admit the applicability of S. 9 of the Act, the learned Subordinate Judge was of the view that the property in dispute was not res extra commercium, but property capable of being disposed of and that the respondent in theme proceedings was entitled to the benefits of the Act. In view of these conclusions, the decree in ejectment and for mandatory injunction granted by the trial court was set aside and the suit was dismissed. in the appeal out of the application under S. 9 of the Act, the learned Subordinate Judge found that the respondent in these proceedings had continued to remain in possession of the property in her occupation as a tenant and as such entitled to claim. the benefits of the Act, that the application filed by her was in time~ that the respondent in these proceedings was entitled to an order for sale under S, 9 of the Act and further that the entire extent of the property in the possession of the respondent in these proceedings was required by the convenient enjoyment of the respondent. It is against this, the Second and the Civil Revision Petition 'have been preferred by the Roman Catholic Mission.

6. The learned counsel for the Roman Catholic mission first contended that after the compromise decree in 0. S. No. 218 of 1969 was entered into, there was a cessation or determination of the relationship of landlord and tenant between the Roman Catholic Mission and the respondent in these proceedings the provision in the compromise decree enabling the respondent in these proceedings to continue in possession could at best be construed only as a licence granted to the respondent in these proceedings to remain in possession.

Reliance in this connection was placed by the learned counsel upon the decision in Konchada. Ramamurty v. Gopinath, : [1967]2SCR559 and Boologanathan v. Goviadarajan : (1979)2MLJ47 . On the other hand, the learned counsel for the respondent in these proceedings submitted that though under the decree the Roman Catholic Mission was entitled to take possession. of the property in the occupation and enjoyment of the respondent within one year, that was not so done and as a result thereof, under Clause 3 of the compromise decree, the respondent in these proceedings continued to remain as a tenant a monthly rental of Ra. 150 and therefore, the was entitled to claim rights as a tenant Besides, it was also pointed out by the learned counsel for the respondent in these proceedings that the correspondence that passed between the parties subsequent to the compromise decree In 0. S. Mo. 218 of 1969 would clearly indicate that the relationship between the parties was only that of a landlord and tenant and not licensor and licensee. The decisions relied on by the learned counsel for the Roman Catholic Mission were distinguished on the ground that in the first of the cases, the relationship can to be decided merely on the basis of the terms of the decree and there was Do correspondence, as we have in this case, and the second case, according to the learned counsel for the respondent in these proceedings, dealt with denial of title by the tenant resulting in forfeiture of the tenancy and the consequent non-availability of the benefits under the Act

7. Earlier, the terms of the compromise as well as the decree passed thereon have been set out. It is not in dispute that the Roman Catholic Mission did not require the site in. the occupation and enjoyment of the respondent in these proceedings for the shifting of the Therasammal School either within one year or after the expiry of one year till the date of the institution of the suit in l9r. On the date of the compromise _~w 0. S. 218 of 1969, a receipt had been issued by the Roman Catholic Mission under Ex B-42, towards payment of rent by the respondent in these proceedings at the rate of Rs. 85 per mensem from 1-3-1969 till 30-0-1970 and at the rate of RL 150 per mensern for the Swaths of October and November l970.

Under Clause 4 of the compromise on and from 1-12-1970, the respondent in them proceedings has undertaken to Pay the rent at Be. 150 per mensem, by the first week of every succeeding English month. Though under Clause I of the compromise decree in 0. S. 219 of 1969 the Roman Catholic Mission had been granted a decree for recovery Of possession and the respondent in these proceedings had been granted a year's time for vacating the property yet, by reason of the operation of clause 3 of the compromise decree, the respondent in these proceedings had been enabled to continue to in possession and enjoyment of the property on, a smoothly rent of Rs. 150. In other words a conjoint reading of the terms of the compromise as well as the decree passed thereon clearly indicates that the Roman Catholic Mission would be entitled to recover possession of the property the occupation of the respondent in these proceedings within one year or even sooner in the event of the Roman Catholic Mission desiring to shift the Therasammal School, but that on the expiry of one year, if the site in the occupation and enjoyment of the respondent in these proceedings had not been meanwhile so required by the Roman Catholic Mission then the respondent * then proceedings would be entitled to continue to remain in possession and enjoyment on a monthly rent of Rs. 150. That would mean that if the Roman Catholic Mission did not require the site in the occupation of the respondent in these proceedings within one year or sooner than that, then the right of the Roman Catholic Mission to recover Possession under Clause 1 of the decree would be nullified by the operation of clause 3 thereof, Thus, even under the terms Of the compromise decree, the respondent has been enabled to continue In Possession on a monthly rent of Rs. 150. Besides the respondent in these proceedings was, for all purposes, considered to be only a tenant as before. The use Of the words entitled to continue on a monthly rent of Rs. 150' is significant and they disclose the recognition of the right In the respondent in these proceedings to continue to remain in possession and enjoyment of the site as before, but on a payment of Rs. 15o per mensem. That this was the intention of the, parties is ' further strengthened by the correspondence that passed between the parties. Under Ex. B-4 dated 25-1-1976, the respondent In these proceedings had been asked to pay a higher rent of Rs. 250 per mensem since December 1964. In this letter, there is a reference to the payment of Rs. 90 as rent by the respondent in these proceedings from 3-8-1959 onwards and Rs. 250 between September 1961 and December 1964. The letter further revealed that from 7-1-1971 a sum of Rs. 150 had been paid as rent. A reference is made therein to the payment of Rs. 891 as property tax to the municipality as justifying the payment of higher rent at Rs. 250 per mensem by the respondent in these proceedings. This letter Ex. B-4, thus proceeds on the acceptance of the fact that the respondent in these proceedings had continued to remain in possession and enjoyment of the Property on payment of a monthly rent bf Rs. 150. In answer to this, under Ex. B-13, dated 24-34976, the respondent in these proceedings Pointed out that the payment of annual tax of Rs. 891, as a justification for a demand by the Roman Catholic Mission for payment of enhanced rent at Rs. 250 per mensem was absolutely false and untrue on verification and that in the absence of any improvement whatever effected by the Roman Catholic Mission, the rent of Rs. 150 per mensem agreed would be quite in order and that the then circumstances in her business even warranted a reduction in that rent. in Ex. B-14, dated 26-3-1976, the Roman Catholic Mission had given the details of the assessment of Municipal tax and finally wound up by stating that the writer of that letter felt very small to again cringe for higher rent. Ex. B-15 dated 30-61976 is another letter written by the Roman Catholic Mission enclosing a rental agreement and requesting the respondent in these proceedings to sign and return the same through one Peru,. mal. The enclosed agreement proceeds on the footing that the Roman Catholic Mission is the owner of the property and that the respondent in these proceedings is a tenant. This agreement was refused be signed by the respondent In these proceedings as the compromise decree in 0. S. 218 of 1969. was sufficient to establish the, tenancy and a fresh agreement was unnecessary. Under Ex. B-16 dated 1-7-1976, the rent renewal form, as It is called, had been sent duly signed on behalf of the Roman Catholic Mission with a request that it should be duly signed by the respondent in these proceedings and forwarded back. It was also stated that no undue fuss need be made about renewing the agreement, which was only proper and usual regarding every tenant. That letter also winds up by saying that if that is not done. the Roman Catholic Mission will be obliged to go to a court of law and demand justice. In reply to this, under Ex. A-6 dated 5-7-1976, the respondent in these proceedings had clearly set out the circumstances under which she was obliged to decline to sign the printed form as, according to the respondent in these proceedings, when a decree of court governing the rights of parties was there, there could be nothing more solemn and there was no need for the unstamped unregistered much alike. In reply to this, the Roman Catholic Mission under Ex. B-17 dated 22-8-1976 had stated that the respondent had agreed to pay a monthly rental of Rs. 250 since April 1976 and had also promised to vacate the premises in six months and give vacant possession and that such consent to pay Rs. 250 per mensem is borne out by the letter dated 24-3-1976. The letter proceeds on the acceptance of the respondent in these proceedings as a tenant and on that footing also justifies the payment of the higher rent at Rs. 250 per mensem. Apart from this, it is further stated that the renewal of the rent deed is only with a view to secure uniformity in keeping with the directions of the superiors, though the court decree has solemnity and sanctity. Ultimately, Ex. B-17 called upon the respondent in these proceedings to execute the rent deed and to Rive vacant possession by the end of September 1976 for the purpose of enabling the Mission construct houses and rooms for their own personnel. A consideration of the correspondence referred to above and exchanged between the parties long, subsequent to the compromise decree clearly establishes that at no point of the Roman Catholic Mission considered the respondent in these proceedings as some one offer than a tenant. In the letters, the intention is manifest that the Roman Catholic Mission had considered the respondent in the proceedings as a tenant and had also wanted to regularise the same by securing from the respondent all signed rental agreement as well. In other words, even according to the Roman Catholic Mission, in spite of the compromise decree in 0. S. 218 of 1969 enabling the Roman Catholic Mission to recover possession of the property in the occupation and enjoyment of the respondent in these proceedings within one year, which was not done, the respondent in these proceedings continued to remain in possession as before as a tenant, but on a payment of Rs. 150 per mensem. It was also accepted by the Roman Catholic Mission by calling upon the respondent in these proceedings to execute a rental agreement in that regard. Thus, the terms of the decree extracted earlier considered in the light of the correspondence that was exchanged between the parties up to a point of time prior to the institution of the suit in 0. S. 76 of 1977, clearly and unmistakably point out that the relationship between the Roman Catholic Mission and the respondent in these proceedings was considered by both the parties as that of landlord and tenant and not any other kind of relationship. In the decision in Kondada Ramamurty v. Gopinath, : [1967]2SCR559 , after the dismissal of a suit in ejectment after the termination of the tenancy,a compromise was entered into before the appellate Court, by which the decree holder was enabled to execute the decree, if the judgment debtor failed to pay the rent for three consecutive months. The question arose whether, under the terms of the compromise decree, a lease 0~r licence was created. In that context, the Supreme Court pointed out that the use of the word 'rent' was not conclusive, as in that case, it was difficult to impute an intention to create a fresh tenancy. Such is not the situation here, as besides the compromise decree, the correspondence which had passed between the parties and referred to earlier, clearly establishes that the parties intended and understood their relationship as that of landlord and tenant and not any other kind of relationship. In view of the documentary evidence in the shape of correspondence referred to earlier, the reliance by the learned counsel upon the decision in Kondada Ramamurty v.Gopinath, : [1967]2SCR559 is of no avail. Indeed, in this case, the plea that the relationship was that of licensor and licensee was not even raised in the course of the proceedings before the courts below. Likewise, the decision in Boologanathan v. Govindaraian, : (1979)2MLJ47 also does not assist the Roman Catholic Mission in advancing its case. In that case, there was a denial of title by the tenant and there was a snapping of the relationship of landlord and tenant as a result of the denial of title put forth by the tenant and thereafter the circumstance that the tenant had remained in possession of the premises and had also paid what he considered to be rent and that was held not to make the person in possession a tenant. It was pointed out that when once there is a severance of the relationship of landlord and tenant by operation of forfeiture by reason of denial of title, the quondam tenant cannot take advantage of his mere possession and claim benefits as a tenant under the Act. In this case, there is no question of any denial or even forfeiture of the tenancy, but, on the other hand, under the-very terms of the compromise decree, there is an express tenancy created in favour of the respondent in these proceedings on the failure Of the, Roman Catholic Mission to secure possession of the property in the enjoyment of the respondent in these proceedings within one year or earlier for the purpose of shifting the Therasammal School. It would thus appear that this is a case which would squarely$ fall under the very defintion of 'tenant' as found in the Act. Therefore the decision relied or, also does not in any manner help the Roman Catholic Mission. Having regard to the terms of the compromise decree and the correspondence that was exchanged between the parties after the compromise decree and prior to the institution of the suit in 1977, it is clearly established that the relationship between the Roman Catholic Mission and the respondent in these proceedings was only that of landlord and tenant. If that is SO, then, there is no dispute that as a tenant. The respondent in these proceedings is entitled to invoke the benefits oft S. 9 of the Act.

The learned counsel for the Roman Catholic Mission next contended that the site in the occupation and enjoyment of the respondent in these proceedings formed part of the church premises and would be property incapable of being dealt with or disposed of by the application of S. 9 of the Act, and, therefore, the respondent in these proceedings would not be entitled to any relief in that regard. it was also further contended that the property in the occupation of the respondent in these proceedings was appurtenant to the church and that as per the decision in Sambandam, Chetty v. St. Francis Xavier's Church, : (1973)2MLJ2 , such appurtenant property cannot form thesubject matter of an application under S. 9 of the Act. In meeting this contention, the learned counsel for the respondent in these proceedings drew attention to the report as well as the plan of the Commissioner to contend that the property in the occupation of the respondent has been demarcated clearly from the church property and is also separated by a compound wall on one side and a fence on all the other sides and. therefore, this is not really property which is appurtenant to or even part of the church premises so as to fall outside s. 9 of the Act Ex. C-3 is the plan which shows clearly the location of the property and its boundaries. In the course of the report submitted by the Commissioner and marked as Ex. C-1, the Commissioner has noticed that the property in the occupation of the respondents in them proceedings is fenced on the northern, eastern and southern sides, and is separated an the western side, by a north-mouth compound wall of 5 feet height It is also further seen that the church and its appurtenant area are situate to the west of the compound wall, while the Property is the occupation of the respondent in these Proceedings is situate to its east In view of the existence of the compound wall of 5 feet height clearly demarcating the church and its properties on the west of the property in the occupation and enjoyment of the respondent in these proceedings in the east. It is not open to the Roman Catholic Mission to contend that the Property in the occupation of the respondent in these proceedings is either part of the church or its appurtenant land. In view of the clear demarcations made out by the report as well as the plan of the Commissioner referred to earlier, there is no substance In the objection raised by the Roman Catholic mission.

The decision in Sambandam Chetty v. St. Francis Xavier's Church : (1973)2MLJ2 . Relied a by the learned counsel is also of no assistance in the circumstance of ads Case. Factually, It is seen in this case that the church and it* appurtenant properties have been clearly demarcated from the property in the enjoyment and occupation of the respondent in the proceedings by compound walls and fences. Therefore the property in the occupation and enjoyment of the respondent in theme proceedings cannot really be considered to be the Property appurtenant to the church, Apart from this, in the decision in Sambadam ChettY v. St. Francis Xavier's Church : (1973)2MLJ2 . It was found that the property was within the compound itself, which in, not the cam here. Therefore. The contention of the learned counse4 for the Roman Catholic Mission that the property in the occupation and enjoyment of the respon4ent in these proceedings is church property or property appurtenant to the church and, therefore, S, 9 of the Act cannot apply, is unacceptable.

The learned Subordinate Judge while dealing with C-M.A. No. 94 of 19M had stated under point No 3. That the finding recorded by the learned I)Lattice Munsif that the entire extent of the property In, the possession of the respondent in these proceedings was required for the convenient enjoyment of the respondent was not challenged by the Roman Catholic Mission. Before this court, also, no attempt was made to challenge that finding, In addition, no exception was taken before this Court to the fixation of *a market value at Rs. 65,M.50 p. In view of this and the conclusions arrived at earlier that the respondent in these proceedings would be a tenant and entitled to the benefits of S. 9 of the Act, Own dismissal of the suit in ejectment and for mandatory injunction instituted by the Roman Catholic Mission in 0. S. No, 76 of 1977 an4 the order passed in 0. P. No. 4 of 1977 direction the We of the property in the occupation of the respondent in these proceedings under Sec. 9 of the Act an deposit of Ra. 65.092-50 p. by the respondent are quite correct and have to be upheld. Consequently, the second appeal and the civil revision petition are dismissed with costs in the second appeal only. There will be no order as to costs in the civil revision petition.

8. Order accordingly.


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