KEMALAMUTHU CHATRAM Vs. S R S SANKARASUBRAMANIA PILLAI

JUDGEMENT

(1.) This second appeal has been brought forth by the plaintiff in a suit for recovery of possession and other reliefs from the judgment of the learned Principal District Judge, Tirunelveli, made in A.S.No.140/9 0, which arose from the judgment of the learned Principal Subordinate Judge, Tirunelveli, made in O.S.No.7/89.

(2.) The plaintiff Kemalamuthu Charities, Tirunelveli, represented by its Manager, sought for the relief of recovery of possession of two items of immovable properties mentioned in Schedules I and II to the plaint along with damages for the acts done by the defendants and also the damages for the use and occupation of the property on the following allegations: The properties mentioned in the plaint Schedules belonged to the plaintiff. The Tamil Nadu Act 18/60 is not applicable to the suit properties. The first defendant took the I Schedule of property on lease in the year 1960. There were proceedings between the plaintiff and the first defendant, wherein it was held that the Tamil Nadu Act 18/60 was not applicable to the suit properties. The II Schedule of property was not the subject matter of the lease in favour of the first defendant. The first defendant was permitted to take water from the well situated in the second item. There were neem and athi trees in the second item. The first defendant without any authorities sold the trees at the rate of Rs.500/- to the second defendant, who cut and carried away the same, and thus, the defendants are liable to make good to the plaintiff by paying Rs.1,000/-. The first defendant without any authority has leased out a part of the II Schedule of property to the second defendant in the month of March 1987. The second defendant put up an illegal construction to a height of 15 feet. The plaintiff sent a telegraphic message on 5.3.1987. But, the second defendant proceeded with the construction hastily and completed the same on 1 0.3.1987. The defendants were liable to pay damages for the use and occupation of the portion of the II Schedule of property at the rate of Rs.1,000/- per month from 4.3.1987. Thus, the defendants were liable to pay over a period of 22 months, a sum of Rs.11,500/-. The plaintiff sent a notice to the defendants on 13.3.1987 terminating the tenancy of the first defendant. The first defendant received the same; but, he intimated that he has deposited the rent in the account of the plaintiff with the Bank of Tamil Nadu, Tirunelveli. But, the same was done on his own accord. Under such circumstances, there arose a necessity for the plaintiff to file the suit for the above said reliefs.

(3.) The suit was resisted by the first defendant inter alia stating that the suit was not maintainable; that the Kemalamuthu Charities was a not a legal entity or a jurisdic person; that the properties never vested with the plaintiff charities; that the provisions of Act 18 of 1960 were applicable to the properties in question, and hence, the suit was not maintainable; that the plaintiff cannot take exemption under the guise of a trust; that the plaintiff was not a trust; that it was only a charge that has been created over the properties; that it was clear from the intention of the testator; that calling the plaintiff charity as a trust was a misnomer; that the II Schedule of property was an appurtenant site for the beneficial enjoyment of the first defendant; that it was a part and parcel of the demised premises; that the first defendant was not liable to pay the amount much less Rs.1,000/- towards damages; that the first defendant was not liable to pay any amount for the use and occupation as claimed in the plaint; that the suit notice was properly replied, and thus, the plaintiff was not entitled to the reliefs.