T S A HAMID Vs. SRI ALANDURAIAPPARSWAMI TEMPLE

JUDGEMENT

(1.) THE plaintiffs in O. S. No. 19 of 1967 on the file of the court of the Subordinate judge of Mayuram, who succeeded before the trial court, but lost before the first appellate court, are the appellants before this court. The controversy in the second appeal lies within a narrow compass and the facts necessary for the purpose of appreciating that controversy may be briefly states as follows. The first respondent temple conducts a private market on a land which is the subject-matter of the suit. It is the common case of the parties that the first respondent temple had obtained a licence from the Municipality for the conduct of the said market, and the market is being conducted in accordance with the stipulations laid down by the municipality and on payment of licence fee to the Municipality. The various fees or charges from the persons who come into the shandy for the purpose of exposing and selling their articles or wares are collected as laid down by the municipality itself. It is also stated that originally the temple itself was conducting the market, but subsequently the right to collect the charges from the various persons who come to the market was being leased out periodically by the public auction. As far as the present case is concerned, the first appellant herein obtained the right to collect the charges from the persons who came to the shandy under an agreement, marked as Ex. A-1 in the present case, dated 1-5-1962. The said document is a registration copy of what was described to be a kutnagai pathram. The whole controversy between the parties is whether the transaction evidenced by Ex. A-1 is a lease in favour of the appellants herein or only a licence granted by the temple to the appellants herein. The appellants instituted the suit putting forward the contention that they were lessees of the premises in question and as such they were entitled to the protection of the Madras Buildings (Lease and Rent control) Act, 1960, and that, so long as they continued to pay rent as stipulated, they should not be evicted. They also claimed the protection under the Madras City tenants Protection Act. It is only because of this claim that they instituted the suit for a permanent injunction restraining the respondent herein and their men from in any manner entering into the property or interfering with the appellants' possession and enjoyment of the suit shandy tope together with the buildings, sheds, etc. There are certain pucca structures on the shandy tope as well as certain thatched sheds put up by the first respondent temple. The suit came to be instituted only because the period of five years stipulated under Ex. A-1 came to an end on 31-3-1967, and thereafter the first defendant temple sold the right to collect the charges on the shandy tope from the various persons who sold their articles there by means of an auction, and the second defendant in the suit became the highest bidder at the auction thereby entitled to make the collection. It is only because of these events the appellants came before the court with the present suit for the reliefs referred to above. Respondents 1 and 2, namely, defendants 1 and 2 in the suit, contended that the appellants were not lessees, that they were merely licencees and that, therefore, they were not entitled to the protection of either the Madras Buildings (Lease and Rent Control) Act or the madras City Tenants Protection Act.

(2.) THE learned Subordinate Judge, who tried the suit, came to the conclusion that the appellants were lessees under Ex. A-1 and that, therefore, they were entitled to the protection of both the Acts, and in that view granted the injunction prayed for by the appellants. Though it passes one's comprehension as to how with respect to the identical property a person would be entitled to the protection of the madras Buildings (Lease and Rent Control) Act, 18 of 1960, as well as the Madras city Tenants Protection Act, still that was the conclusion of the learned subordinate Judge came to. As against this judgment and decree of the learned subordinate Judge, dated 3-9-1968, the respondents herein preferred an appeal to the District Court, East Tanjore at Nagapattinam, and on 21-7-1970, in A. S. No. 124 of 1968, the learned Additional District Judge allowed the appeal. The learned additional District Judge came to the conclusion that the transaction evidenced by ex. A-1 was only a licence and that in that view the appellants herein were not entitled to the protection of the Acts referred to above and consequently to the relief to above and consequently to the relief of injunction. It is against this dismissal of their suit by the learned Additional District Judge the present second appeal has been filed.

(3.) MR. Sivaramakrishnayya, the learned counsel for the appellants, did not advance any argument with regard to the claim of the appellants for the protection of the Madras City Tenants Protection Act, and he confined himself only to the question whether the transaction evidenced by Ex. A-1 constituted a lease or a licence. According to him to constituted a lease and in that event the appellants would be entitled to the protection of the Madras Buildings (Lease and Rent control) Act.