SILAMBANI SRI CHIDAMBARA VINAYAGAR DEVASTHANAM, DEVAKOTTAI THROUGH ITS TRUSTEES Vs. DURAISAMY NADAR AND ANR.

JUDGEMENT

(1.) This second appeal by the plaintiff Silambani Sri Chidambara Vinayagar Devasthanam, Devakottai, by its Trustees, raises an interesting question of law as to the impact of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948) on the rights of a tenant of land from the landholder for building purposes, where the tenancy commenced prior to 1948, and the building erected by the tenant on the land, continued in the tenant's occupation on the date of the notification of the estate under the Act. The second appeal is connected with three revision petitions also by the appellant as petitioner, under Sec. 115 of the Code of Civil Procedure. The cases were heard together both in the trial and appellate Courts. The suits being for arrears of rent, and of small cause nature in view of the value of the claim, three of them have been brought up to this Court in revision. Lease of vacant sites had been granted by the appellant to the several defendants, the defendants being permitted to put up buildings thereon at their own cost, the superstructure being removable by the tenants at the expiry of tenancy. They were, however, prohibited from sub -letting or assigning the superstructure. The sites thus leased are in the under -tenure village of Kallambirambu which was notified and taken over by the Government on 7th September, 1949, under the provisions of the Madras Estates Abolition Act (XXVI of 1948). The appellant Devasthanam was the landholder of the village and there is no dispute, that the site, the subject -matter of the suit out of which the second appeal arises, is situated on what was the eastern bund of the Vellaiyyan Oorni. The plaintiff claimed a sum of Rs. 1,091.84 as rent for the site from 1st April, 1960 up to 30th November, 1961. The first defendant is the contesting defendant and there is no dispute that the origin of the possession of the defendant was as tenant under the plaintiff, nor is it disputed that the amount claimed as rent has not been paid. But the defence to the action is that the suit -site along with the building put up by the tenant thereon had Vested in the defendant and the title of the plaintiff as a landlord got extinguished with the notification of the estate under the Abolition Act, XXVI of 1948.

(2.) Some more facts which are relevant have to be set out. The tenancy under the plaintiff admittedly commenced even prior to 1948, but it is beyond dispute that the tenant has subsequent to the notification of the estate also been executing lease deeds in favour of the plaintiff and subsequent to the notification the plaintiff had filed a small cause suit for arrears of rent and secured decree thereon. Revision taken to the Court by the tenant failed but there was no determination of the question of title. After the notification of the estate the plaintiff applied for ryotwari patta for the suit -site amongst other properties as private land and the Assistant Settlement Officer decided that the item was Vellayan Oorani poramboke. The plaintiff did not claim the disputed site as house -site or building -site but as part of item 14 in the application -Vellayan Oorani. No doubt, as noticed by the lower appellate Court on the date of the notification of the estate, the tank bund did not exist as such but was being used as site for location of various shops. From the decision of the Settlement Officer, there was an appeal to the Estate Abolition Tribunal, Madurai, and on the dismissal of the appeal, the matter was brought up to this Court by way of a writ petition and that also failed. It is stated that the devasthanam may secure the site under Sec. 19 -A of the Act. Of course, these proceedings cannot preclude the devasthanam from asserting its right to the property, if it can under Sec. 18 of the Abolition Act and that is the right that is now being asserted. The lower appellate Court records as an admission that the devasthanam claimed that it had only the landlord's interest in the tank bund sites. It was also conceded before the lower Court that the devasthanam had no right in the super -structures, The appellant has got marked in appeal Exhibit A -45 an order of the Assistant Settlement Officer, Madurai, dated 20th March, 1963, pending the suit granting joint patta in favour of the landholder and the tenant, the landholder as owner of the site and the tenant as owner of the superstructure. Counsel have not been able to edify me as to how under ryotwari settlement there could be patta recognising the ownership in superstructures. On the joint patta kist will have to be paid. But under what provision of law can the Government levy assessment on the superstructure? Revision has been preferred against this order to the appropriate authority and it is stated the same is pending.

(3.) The dispute as may be apparent from the above narration of facts is between the plaintiff on the one hand and the defendant on the other hand as to the title of the property, meaning thereby the site on which the superstructure put up by the tenant stands. The devasthanam claims title to the site absolutely by a process of reasoning based on Sec. 18(4) of the Act. The trial Court took the view that the Government was a necessary party to the action and besides the civil Court was not the forum for adjudication of the dispute in question. On appeal the learned Subordinate Judge examined the question in extenso and negatived the claim of the plaintiff on merits. The learned Subordinate Judge agreed with the contention of the appellant as to the jurisdiction of the civil Court, the question being one of title which of the rival title has to prevail? He found that the devasthanam had lost its right on the notification on 7th September, 1949. The contention of the devasthanam that the tenant was estopped from disputing its title was found against. There was no question of the tenant being asked to surrender possession before disputing the title of the plaintiff as the tenant had entered on the property long anterior to 7th September, 1949. It was held that the site in question also would under Sec. 18(4) of the Abolition Act, read with Sec. (5) vest in the owner of the building that is the tenant who had put up the building. In the result, the claim for rent for the site failed.