MALAYAPPA NADAR Vs. MASJID E HAFEREZISH

JUDGEMENT

(1.) "The tenant is the petitioner. The property in disputed measured 77'X 21'in No. 48, Strahans Road , Madras -12. Admittedly, this property belongs to the respondent Masjid. In ejectment suit no. 179 of 1975, the respondent herein prayed for a decree against the petitioner directing him to vacate and deliver vacant possession of the the property in his occupation. After the service of summons in that suit, the petitioner herein filed M. P. No. 2265 of 1975 claiming benefits under section 9 of the Tamil Nadu City Tenant's Protection Act (hereinafter refrered to as the act ). Two objections were raised by the respondent in that application. The first was that as per G. O. Ms. No. 1252, Commercial Taxes and Religious endowments, dated 27th November, 1980, a lessee of wakf land will not be entitled to claim any compensation for any building put up by him while surrendering possession of the land to the wakf and since no compensation is payable in respect of the superstructure, the tenant cannot, also seek the benefits of section 9 of the Act. The second was that the land in question being part of mosque would partake the character of res extra commercium and therefore inalienable and cannot form the subject-matter or an application under section 9 of the Act.

(2.) BEFORE the Court below on behalf of the petitioner exhibits P-1 to P-23, were marked and the petitioner and another Civil Engineer were examined as P. W. 1 and P. W. 2, while, on behalf of the respondent Exhibits d-1 to D-7 were filed and D. W. 1 and D. W. 2 have given evidence. The learned IV judge, Court of Small Causes, Madras on a consideration of the oral as well as the documentary evidence found that the G. O. relied on by the respondent cannot be pressed into service to deprive the petitioner of the rights under section 9 of the Act and having regard to the use of the property in dispute by the petitioner as a firewood depot for nearly 40 years and the sale of an adjacent property to one Alwar Nadar under section 9 of the Act. Section 9 of the Act would apply even with reference to the property in dispute In that view, the application filed by the petitioner claiming the benefits of section 9 of the Act was allowed and a commissioner was appointed to value the land. Aggrieved by this, the respondent herein preferred Ejectment Appeal No. 11 of 1982 before the Chief Judge, Court of Small Causes, Madras. With reference to the plea raised by the respondent that G. O. M. S. No. 1252, Commercial Takes and Religious Endowment dated 27th November, 1980 would apply to deprive the petitioner of the benefits of Section 9 of the Act, the appellate Court was of the view that the rights available under section 9 of the Act cannot be defeated by the G. O. and that the petitioner can claim such benefits. However, the appellate Court was of the view that the property in question is a res extra commercium and inalienable and therefore, the petitioner cannot claim that such property should be sold to him under section 9 of the Act. In that view, the appeal was allowed and the application filed by the petitioner claiming the benefits under section 9 of the Act was dismissed. It is the correctness of this order that is challenged in this civil revision petition.