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P. Krishnamurthy and ors. Vs. Thambaram Panchayat by Its Executive Officer, Narayanaswamy, Now the Tambaram Municipality, by Its Special Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1970)1MLJ444
AppellantP. Krishnamurthy and ors.
RespondentThambaram Panchayat by Its Executive Officer, Narayanaswamy, Now the Tambaram Municipality, by Its S
Cases Referred and Raghavachari v. Pakkiri Mohamed
Excerpt:
- .....protection under section 116 as he was the person who in fact leased the property and placed the tenant in possession. patanjali sastri, j., as he then was, who decided that case, made the above distinction and distinguished the decision in kuppu konan v. thirugnanasammandam pillai i.l.r.(1908)mad. 461.8. it is well settled by a catena of cases, to which detailed reference is not necessary, that where the true owner evicts the tenant, the tenant could attorn to the true owner and set up his title in answer to a suit for ejectment filed by the landlord who let him into possession. the only limitation is that so long as the tenancy is subsisting the tenant is not entitled to set up a jus tertii in a third person. but if the tenant is evicted from possession by the true owner, the tenancy.....
Judgment:

K.S. Palaniswamy, J.

1. These two batches of cases, one batch of second appeals and. another batch of civil revision petitions, can be disposed of by a common judgment as the points that arise for consideration are the same. The following facts are necessary to understand the scope of the controversy. Survey Nos. 323 and 324 together measuring an extent of 5-03 acres situated in Tambaram village, Saidapet taluk, are poramboke lands. As per G.O. No. 2114, Public Health, dated 11th June, 1938, Tambaram Town Planning scheme was sanctioned and the aforesaid two survey numbers were reserved for public purposes like erection of markets and building of shops. The District Board, Chingleput, was appointed as the responsible authority under the scheme for its due execution. Subsequently, the Tambaram Panchayat Board became the successor responsible authority for the due execution of the scheme. The period for the function of the responsible authority was extended for ten years upto 10th June, 1963. As the aforsaid two survey numbers had not been owned by the Panchayat or acquired by it as contemplated under the scheme, the Government authorised the Panchayat in 1948 to lease out the lands till 1956-57. Subsequently, as per G.O. N0.2779, Health, dated 11th September, 1957 ,the Government authorised the Panchayat to lease out upto the end of 1957-58. Thereafter, no such authority was given. Acting upon the authority given originaly, the Panchayat leased out portions of the survey numbers to various persons who have put up constructions on the plots leased to them and collected rent. In the course of such collection of rent, disputes arose between the lessees on the one hand and the Panchayat on the other, and as a result of the dispute, some lessees claiming to be the representatives of all the lessees instituted O.S.No. 40 of 1956 on the file of the Sub-Court Chingleput, impleading the Panchayat as a defendant, and prayed for an injunction restraining the Panchayat from interfering with their rights and from asking them to execute lease deeds or to pay rent. That suit was dismissed. One of the grounds of dismissal was that the tenants were estopped from denying the title of the Panchayat. The matter was taken up in appeal and the District Judge, Chingleput, concurring with the view of the trial Judge, dismissed the appeal. There was a further appeal to this Court in S.A. No. 297 of 1958. During the pendency of the appeal in this Court, the State of Madras was impleaded as a party. Jagadisan, J., before whom the appeal came up held that the persons who had filed the suit having come into possession as lessees under the Panchayat were estopped from denying the title of the Panchayat during the subsistence of the lease and dismissed the second appeal. For arrears of rent which accrued subsequently the Panchayat filed some small cause suits which were decreed. Against those decrees, some tenants filed civil revision petitions which also were dismissed by Jagadisan, J., holding that the tenants were barred by the principle of estoppel from denying the title of the Panchayat to collect the rent.

2. The persons in possession did not pay rent subsequently, and thereupon the Panchayat instituted a batch of original suits and another batch of small cause suits, at first impleading only those, who according to the panchayats, were in possession as lessees. During the pendency of the suits, the Collector of Chingleput, was impleaded as the second defendant in each suit. The Government Pleader on entering appearance for the Collector, Chingleput, endorsed on the plaints that the Government had no objection to the passing of decree in favour of the Panchayat and that if a decree could not be granted in favour of the Panchayat, decree may be passed in favour of the Government. The persons who are in possession and who have been impleaded as the first defendant in each of the suits contended that the Panchayat had no right to maintain the suits, that they were not estopped from denying the title of the Panchayat, as the revenue officials had issued B memos. to them treating them as trespassers and threatening eviction, that in those circumstances they had to pay kist to the Government and that, therefore, they were not liable to pay arrears of rent.

3. The District Munsif, Chingleput, who tried the original suits as one batch and the small cause suits as another batch, held that the suits were maintainable by the Panchayat, and that the plea that the Panchayat had no right to maintain the suits could not be put forward by reason of the bar of estoppel. On the question of limitation, which was one of the pleas raised in defence, the District Munsif found that the entire claim was in time In the result, he decreed all the suits.

4. In the appeals preferred to the District Judge, Chingleput, the decrees of the trial Court in the original suits were confirmed It is against the decision in those appeals, the second appeals under consideration have been filed. The Civil Revision Petitions have been filed against the decisions of the District Munsif in the batch of small cause suits.

5. The main ground upon which both the Courts below have negatived the defence is that the defendants are barred by estoppel under Section 116 of the Evidence Act from contending that the Panchayat is not entitled to maintain the suit to recover arrears of rent. To find out whether this view is sustainable or not, it is necessary to note in what capacity the Panchayat sought to recover arrears of rent. It is not the case of the Panchayat that it is the owner of the lands in question. A feeble attempt was made on behalf of the panchayat to show that under clause 8 of the scheme, Exhibit A-1, the panchayat was entitled to lease out the lands. That clause inter alia states that the responsible authority may, in the interest of the scheme, dispose of the lands acquired under clause 7 or owned by it, by sale in auction or exchange, lease or otherwise. The lands in question are not lands acquired under clause 7 of the scheme. They are also not lands owned by the responsible authority. The only right under which the Panchayat can claim to recover arrears of rent is by virtue of the authority given by the Government in or about 1956. On the question whether the said authority continued to subsist at the time when these suits under consideration were filed, the two affidavits filed by the Collector of Chingleput, which have been marked as Exhibits B-8 and B-9, make the position clear beyond any doubt. In Exhibit B-8 it is stated that though the District Board and the Panchayat were appointed to function as responsible authority, the lands, namely, Survey Nos. 323 and 324, had not been owned by them or acquired by them, but, however, the responsible authority was authorised for leasing out the properties every year till 1956-57 and that after 1956-57, no such authorisation had been given. In Exhibit B-9 it is stated that as per G.O.Ms. No. 2779, Health, dated 11th September, 1957) the Tambaram Panchayat was asked to take action to get lease deeds executed by the lessees after collecting the lease amounts upto the end of the year 1957-58 and that the Panchayat had no authority to lease after 1957-58. It is not the case of either the Panchayat or the Government that after 1957-58 the Government gave any further authority to the Panchayat to lease or to do anything with the lands in question. The authority referred to in Exhibit B-9 came to an end by 1957-58. It, therefore, follows that on the dates when these suits under consideration were filed, the Panchayat had no authority to claim rent on behalf of the Government.

6. Section 116 of the Evidence Act inter alia provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. But this rule of estoppel is not absolute.

7. In these cases, the shop-keepers (lessees) contend that the Panchayat is not the owner and that the Government is the owner. Admittedly, they came into possession under the Panchayat. The question is whether it is open to them, to say that the real owner is the Government and not the Panchayat. In Venktaanarasimtharyulu v. Gangaraju amended as Ganiraju : AIR1941Mad607 , distinction is pointed out between a case where a person claiming to be the owner of a certain property leases out to a tenant but takes the lease deed in the name of his beneamidar, and the case where a benamidar happening to be in possession of the property on behalf of the real owner grants a lease of it without disclosing his benami character. It is pointed out that in the former case, the tenant's estoppel would operate in favour of the real lessor and not the benamidar. In the second category of cases, the benamidar would come within the protection under Section 116 as he was the person who in fact leased the property and placed the tenant in possession. Patanjali Sastri, J., as he then was, who decided that case, made the above distinction and distinguished the decision in Kuppu Konan v. Thirugnanasammandam Pillai I.L.R.(1908)Mad. 461.

8. It is well settled by a catena of cases, to which detailed reference is not necessary, that where the true owner evicts the tenant, the tenant could attorn to the true owner and set up his title in answer to a suit for ejectment filed by the landlord who let him into possession. The only limitation is that so long as the tenancy is subsisting the tenant is not entitled to set up a jus tertii in a third person. But if the tenant is evicted from possession by the true owner, the tenancy comes to an end and there is nothing in law to prevent the tenant to attorn to the true owner. What kind of eviction is necessary has been a matter of consideration in some cases. The eviction need not be by actual dispossession of the tenant. If the true owner is armed with a legal process for eviction, which cannot be lawfully resisted, even though the tenant is not put out of possession, the threat to put him out of possession would in law amount to eviction--vide Alaga Pillai v. Ramaswami Thevan : AIR1926Mad187 . In the instant cases, it is no doubt not the case of the defendants that they were actually evicted from possession by the Government. Their case is that from about 1958, the Government issued B memos. to them treating them as trespassers under the Madras Land Encroachment Act (III of 1905) threatening to evict them, that fearing eviction they have been paying kist to the Government, which has been duly accepted by the Government and that by reason of these events, they are not estopped from contending that the Panchayat is no longer entitled to collect rent from them. It is not disputed by the Government that treating the persons in occupation of the lands in question as trespassers B memos. were issued and kist was collected. The following passage in the affidavit, Exhibit B-9 is important:

Action under the Land Encroachment Act has been taken against the shopkeepers and penalty has been collected from them under that Act for faslis 1368 and 1369 but action has not yet been taken to evict them.

9. The lessees have produced kist receipts only from May, 1963, as seen from Exhibit B-3 to B-7. But in view of the categorical admission on behalf of the Government contained in the affidavit referred to above, it is clear that the Government is collecting kist from faslis 1368. The question whether there was a threat of eviction and whether that threat was sufficient in law to make the tenant attorn to the person putting forward the threat has to be decided upon the facts and circumstances of each case. The Land Encroachment Act provides the procedure to evict persons in unauthorised occupation of Government lands. Under Section 3 any person unauthorisedly occupying Government land is liable to pay the full assessment imposed on the land. Under Section 5, a person in unauthorised occupation of Government land is liable to pay what is known as penal assessment. Section 6 provides for summary eviction of the person in unauthorised occupation of Government land for which he is liable to pay assessment under Section 3. Under Section 7, before taking proceedings under Section 5 or 6, the Collector or the Tahsildar or the Deputy Tahsildar, as the case may be, should cause to be served on the person reputed to be in unauthorised occupation of land being the property of the Government, a notice specifying the land so occupied and calling on him to. show cause before a certain date why he should not be proceeded against under Section 5 or under Section 6. That the Government in the instant case contemplated eviction is not disputed. The question, under these circumstances, is what is the effect of such a threat held out by the Government. It has been held by a Bench of this Court in Alaga Pillai v. Ramasawmi Thevar : AIR1926Mad187 , that a notice under Section 7 of the Land Encroachment Act amounts in law to eviction. It is contended for the Government and the Panchayat that after the lessees received notices under Section 7, they did not obtain patta from the Government and that mere payment of kist without obtaining patta would not amount to eviction. This contention cannot be accepted. The decision in B. Gowresu v. K. Subadramma (1956) A.W.R. 1090 : A.I.R. 1957 A.P. 961, on which reliance was placed on behalf of the Government, itself lends support to the view that the payment of lust by the person in possession, to whom notice under Section 7 of the Land Encroachment Act has been issued, would be sufficient to entitle him to plead jus tertii--vide the observation at page 963. Obtaining the patta is not the only mode of attornment. Payment of kist by the lessee in consequence of the notice of threat of eviction and acceptance thereof by the Government are sufficient in law to entitle the tenant to contend that he is in possession under the Government though there may not be the-relationship of landlord and tenant between him and the Government. The fact that the Government have not issued a patta may raise the question whether the Government is entitled to contend that the persons who have merely paid the kist will continue to be trespassers. That question does not call for any decision now. But that would not affect the right of the lessees who have paid kist to the Government to contend that the person who originally let them into possession, namely, the panchayat, is no longer entitled to maintain any action against them for eviction or for recovery of arrears of rent.

10. Both the Courts below held in favour of the Panchayat on the question whether' the decision in S.A. No. 297 of 1958 operated as res judicata against the lessees from contending that the panchayat is not entitled to collect rent from them. That view does not appear to be correct. The suit, out of which that second appeal arose, was instituted during the subsistence of the authority given by the Government to the Panchayat. That suit was filed when the lease under which possession was given subsisted. That was the basis upon which the decision in the second appeal was given--vide Exhibit A-5, certified copy of the judgment in the second appeal. It : was on that basis that Jagadisan, J., held that the lessees were estopped under Section 116 of the Evidence Act, from disputing the title of the Panchayat from collecting' rent. But the rights and obligations of the parties have changed completely after the above adjudication. As already pointed out the Panchayat had no subsisting' authority to maintain the suit against the lessees after 1958. There is no bar against the lessees from contending that after 1958 the Panchayat had no right to maintain the suit and the decision in S.A. No. 297 of 1958 cannot operate as res judicata. There is, however, one case which stands on a different footing. The Panchayat filed S.C.S. No. 224 of 1961 on the file of the District Munsif, Poonamallee, against one Devaraja Chetti, one of the lessees, to recover arrears of rent for the year 1958-59. Rejecting the defence that the Panchayat had no right to maintain the suit the District Munsif granted a decree. Against that decree, the said Devaraja Chetti filed C.R.P. No. 2282 of 1961. It was contended in revision that the petitioner had to attorn to the Government on account of the issue of B' memos. But Jagadisan, J. held that the mere issue of notice was not sufficient unless there was attornment. It was not proved in that case that the tenant brought about an attornment of payment of kist. It was, therefore, held that the tenant was not entitled to dispute the title of the panchayat under which he admittedly came into possession. In the result, revision was dismissed. A copy of the decision in the revision petition is Exhibit A-8. It is important to note that the period for which that suit was laid was after the expiry of the authority given by the Government to the Panchayat. Devaraja Chetti did not put forward the plea that after the expiry of the authority the Panchayat had no right to maintain the suit. Inasmuch as such a plea was not put forward, which ought to have been put forward, and inasmuch as the ultimate decision went against him holding him liable to pay the rent for the year 1958-59, Mr. M.S. Venkatarama Iyer, appearing in the batch of these cases for the appellant petitioners did not seriously contend that the said decision would not operate as res judicata against Devaraja Chetti who is the revision petitioner in C.R.P. No. 1960 of 1964. In this view, it would follow, that C.R.P. No. 1960 of 1964 is liable to be dismissed as being barred by the decision in C.R.P. No. 2282 of 1961.

11. On behalf of the Government it was contended that even if the Panchayat, for some reason or other, is found to be not entitled to maintain the suits for recovery of arrears of rent, decrees may be passed in favour of the Government, as the Government have stated so by making endorsements on the plaints. There is no merit in this request. From 1958, the Government have been treating the shop-keepers as trespassers and issuing 'B' memos and collecting kist from them. Even though the 'Government have not issued an order after 1957-58, stating that the Panchayat should not continue to collect rent from the shop-keepers, it should be inferred from their conduct in issuing B memos to the shop-keepers and collecting rent from them, that they did not want the Panchayat to act on their behalf. These suits have not been filed by the Panchayat on behalf of the Government. A man cannot adopt by ratification an act which was not authorised by him at the time and did not purport to be done on behalf of any principal (Keighley Maxstead and Co. v. Durani L.R. (1901) A.C. 240, and Raghavachari v. Pakkiri Mohamed : (1916)30MLJ497 . There is therefore no room to import a theory of the panchayat acting as the agent of the Government and the Government ratifying any such act by the Panchayat. The mere endorsement on the plaint by the Government would not nullify the effect of the proceedings taken by them against the shopkeepers. It is not open to the Government to say that decrees may be passed in their favour in these suits. I may also observe that such a request is devoid of grace, for, the Government have treated the shop-keepers as trespassers and collected kist from them and it is hardly fair or just that the same persons should be again called upon to pay rent to the Government for these reasons, I do not accede to the request made on behalf of the Government that decrees may be passed in their favour in these suits. Whatever right the Government may have should be established in appropriate proceedings which they should institute and no relief could be granted in favour of the Government in these proceedings. However, I wish to make it clear that none of my above remarks about the Government should affect whatever rights the Government may have against the shop-keepers.

12. In the result, C.R.P. No. 1960 of 1964 is dismissed. All the second appeals and the other civil revision petitions are allowed and the suits out of which those proceedings have arisen shall stand dismissed. The parties are directed to bear their own costs in all the Courts. No leave.


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