C. Venugoplan Namboodiri v. Tali Devaswom

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** **RSA NO. 427 OF 2018** **AGAINST THE JUDGMENT & DECREE DTD. 27.06.2015 IN OS 341/2014 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE. AGAINST THE JUDGMENT & DECREE DTD. 11.08.2017 IN AS 171/2015 OF ADDITIONAL DISTRICT COURT - IV, KOZHIKODE** ## **APPELLANT/APPELLANT/DEFENDANT:** C.VENUGOPLAN NAMBOODIRI S/O. KESHAVAN NAMBOODIRI, AGED 73 YEARS, RESIDING AT HOUSE NO. 18/593, TALI SREE RAMASWAMI KSHETHRAM COMPOUND, KASABA AMSOM, KARIYAKUNNU DESOM, CHALAPURAM P.O., KOZHIKODE TALUK AND DISTRICT, PIN - 673 002. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA ## **RESPONDENT/RESPONDENT/PLAINTIFF:** TALI DEVASWAM REPRESENTED BY ITS HEREDITARY TRUSTEE, CHALAPURAM P.O., KOZHIKODE TALUK, KASABA AMSOM DESOM, PIN - 673 002. BY ADVS. SRI.A.MUHAMMED MUSTHAFA SRI.M.P.SREEKRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2022, THE COURT ON 25.05.2022 DELIVERED THE FOLLOWING: R.S.A.427/2018 2 ## **JUDGMENT** Dated this the 25[th] day of May, 2022 Aggrieved and dissatisfied by the judgment and decree of the Additional District Court-IV, Kozhikode in A.S. No. 171 of 2015, filed against the judgment and decree of the Principal Munsiff Court-I, Kozhikode in O.S. No. 341 of 2014, the defendant has come up with this second appeal. 2. The suit for recovery of the plaint schedule property with damages filed by the plaintiff, Tali Devaswom, against the defendant/tenant was decreed by the trial court. Though, the defendant challenged the judgment and decree it was dismissed. Hence, this second appeal. 3. The parties are referred to as per their status before the trial court. 4. The case against the defendant/appellant is as follows: R.S.A.427/2018 3 The building scheduled in the plaint was taken on oral lease by the defendant from the members of Thelepurath Tharawad on 11.09.1984 for a monthly rent of Rs.150/- and a security deposit of Rs.180/- for three months. By a registered notice issued on 09.05.2008 the plaintiff requested the defendant to pay monthly rent at an enhanced rate of Rs.475/- from July, 2007 to April, 2008 and to vacate the premises. Rent was kept in arrears from May, 2008 to May, 2011. Then, the plaintiff issued another letter terminating the tenancy on 25.05.2012. Though the notice was received on 04.06.2012, he did not vacate the premises, but sent a reply on 26.07.2012 raising untenable contentions. The plaintiff is a Hindu religious charitable trust which originally belonged to Thelepurath tharawad. The hereditary trustee while holding administration of the temple requested the Tali Devaswom to take over Sree R.S.A.427/2018 4 Ramaswami Kshethram with all the movable and immovable properties as the sub-temple of the plaintiff. On 07.05.2007 the Devaswom filed an application before the Deputy Commissioner, Hindu Religious and Charitable Endowment Department, informing willingness to take over the temple and its properties. Thereafter as per a proceedings dated 08.10.2007, appointed the hereditary trustee of the plaintiff as the trustee of Tali Sree Ramaswami Kshethram and thereafter the entire movable and immovable properties were handed over and the tenancy continued under the plaintiff. Since, the defendant did not vacate the plaint schedule property, the suit was filed for a direction to vacate the premises by the defendant. 5. The defendant admitted the title of the plaintiff and contended that he has been residing in the building situated in the property for the last 30 years and he has no other building for his accommodation. He was granted permission R.S.A.427/2018 5 to reside in the house without any time limit. Sufficient space and facilities are available in the temple premises for their requirement and so he is not liable to be evicted from the building and thus contended that the suit is only to be dismissed. 6. Before the court below P.Ws. 1 and 2 were examined and Exts. A1 to A11 were marked on the side of the plaintiff. On the side of the defendant, he himself was got examined as D.W.1 and Exts. B1 and B2 were marked. 7. The learned trial Judge after evaluation of the evidence concluded that the defendant is liable to surrender vacant possession of the plaint schedule property with damages at the rate of Rs.475/- per month with interest at the rate of 12% per annum and at the very same rate, for illegal occupation from the date of the suit till the date of recovery of possession. R.S.A.427/2018 6 8. The said judgment was carried in appeal. The learned first appellate court after re-appreciation of the evidence confirmed the judgment and decree and concluded that the defendant is liable to vacate the plaint schedule property and hand over vacant possession of the same. 9. Now challenging the said judgment and decree, this appeal has been preferred contending that both the courts have wrongfully interpreted Section 11(7) of Kerala buildings (lease and rent control ) Act, 1965 (for short Act of 1965) and the notification issued by the Government under Section 25(1) of the said Act. Moreover, even after the issuance of notice, arrears of rent had been received by the plaintiff and therefore the intention was to treat the lease as a subsisting one and there is waiver of notice under Section 113 of the Transfer of Property Act. So,the decree granted against him directing to vacate the premises is liable to be set aside. R.S.A.427/2018 7 ## 10. Heard both sides. Perused the records. 11. The temple and its properties originally belonged to Thelepurath Tharawad. At the outset, it is to be noted that the title with respect to the plaint schedule property is not in dispute. As per Ext.A1 order of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Kozhikode dated 8[th] October, 2007, the trustee of Tali Devaswom, Kozhikode was appointed as the trustee of Sree Ramaswami Kshethra and allowed to consider the said temple as a sub-temple of the Devaswom and to resume pooja in the temple after renovation. Though this order was issued on 8[th] October, 2007, there was no challenge to the said order and no appeal was preferred against the order. So, in short, the validity of Ext.A1 order was not under challenge by anyone as provided under the provisions of the Madras Hindu Religious and Charitable Endowments Act( for short 'Madras Act XIX of 1951), before the competent forum. R.S.A.427/2018 8 So, as per Ext.A1 Tali Sree Ramaswamy Kshethram is to be treated as a sub-temple of the Tali Devaswom. The plaint schedule property thus belongs to Tali Sree Ramaswamy Kshethram, a Hindu religious institution. The oral lease was created by the defendant under Thelepurath Tharawad. The monthly rent fixed for the building in the temple premises was Rs.150/- and the oral lease was from 01.09.1984. The proceedings issued by the Assistant Commissioner in charge of Deputy Commissioner was on 8[th] October, 2007. So, during that period also, the defendant was continuing the tenancy of the premises on payment of rent. As P.W.1, the hereditary trustee had deposed before the court that the building is required for the temple to construct a vazhipad counter as sufficient space was not available in that location. So, to construct the vazhipad counter for the convenience of the devotees and the temple, the building was required and thus, they requested to surrender the same by the R.S.A.427/2018 9 defendant. Inspite of the receipt of the lawyer notice terminating tenancy under Section 106 of the Transfer of Property Act, the premises was not vacated. The defendant has contended that under Section 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965, the plaintiff is supposed to prove the bona fide requirement to get him evicted from the premises. But it is to be noted that under Section 25(1) and (2) of Act 2 of 1965, the Government by notification in the gazette exempted certain class of buildings from the purview of Act 2 of 1965. As per Government Orders(M.S) No. 59 of 1993 the buildings owned by temples and Devaswoms of Gowdasaraswatha Brahmins are exempted and so the provisions of Act 2 of 1965 are not applicable in the present case. So, the question to be looked into is whether the tenancy has been terminated as per the provisions of the Transfer of Property Act. The records would reveal that a month -to-month R.S.A.427/2018 10 tenancy was created and the initial tenancy was on payment of a monthly rent of Rs.150/- which was later enhanced to Rs.475/- from the month of June, 2012. Ext.A2 notice dated 25.05.2012 was issued to the defendant requesting to vacate the premises under Section 106 of the Transfer of Property Act.Ext.A1(a) is the acknowledgment card and Ext.A1(b) is the postal receipt. Ext.A8 dated 26.07.2012 is the reply notice issued by the defendant raising an untenable contention that he is not liable to vacate the premises. At the outset, it is also to be noted that the defendant had pleaded permanent tenancy, but no evidence was adduced to substantiate the same. So,it could only be considered as monthly tenancy terminable with a notice of 15 days as provided under Section 106 of the Transfer of Property Act. As referred above, he has not questioned the title of the plaintiff. Monthly rent was paid as admitted by him as D.W.1, but later it was kept in R.S.A.427/2018 11 arrears. As per Ext.A7 notice the defendant was directed to vacate the premises on receipt of eviction notice with arrears of rent. The recitals in the eviction notice which has been accepted by the defendant would reveal that the lease was from month to month and the registered notice terminating tenancy issued with acknowledgment card was received by him and there was no challenge to the said notice issued terminating the tenancy. Therefore, the concurrent findings of both the courts is that the tenancy has been validly terminated by the plaintiff as fixed in Ext.A7 notice. So, the plaintiff is entitled to get the defendant evicted from the premises. 12. It is pertinent to note that the defendant while filing the written statement has not raised any other contention other than the alleged permanent tenancy. It is also to be noted that before the court below as well in the appeal memorandum, no other contention was raised by the R.S.A.427/2018 12 defendant. The title of the plaintiff over the property is not under challenge. Pursuant to Ext. A1 order the suit was filed. The provisions of Act 1965 is also not applicable in the present case as the building is exempted from the provisions of the Rent Control Act. Admittedly, no lease agreement was signed between the parties. So, also the lease created between the parties is deemed to be of month to month and so it will attract only 15-days notice under section 106 of the Transfer of Property Act. Section 111 states about determination of lease. When the prescribed time of lease expires, the lease is terminated and when notice to quit by the lessor to the lessee expires, the lease will also expire. Under Section 111(h) of the Transfer of Property Act, on expiry of the notice to determine the lease, the tenant is liable to quit and the receipt of the notice makes the defendant liable to vacate the premises on expiry of the period mentioned in the notice. On a perusal of the records, R.S.A.427/2018 13 in fact, I find that the appellant/defendant could not raise any substantial question of law in the case for consideration. As the concurrent findings of the courts that the defendant is liable to vacate the premises as well the finding that the provisions of the Rent Control Act are not applicable in the present case, there is absolutely no substantial question of law involved so as to consider in this appeal. The defendant, who is in unauthorised occupation has to vacate the premises so as to enable the plaintiff to utilize the space for construction of vazhipad counter as well to accommodate the Tantri of the temple as requested for the welfare of the temple. I find absolutely no genuine ground to hold otherwise. 13. Now an application as I.A. No. 1 of 2021, has been filed by the defendant for special leave to raise and urge additional grounds as substantial question of law. 14. In the petition, it has been pleaded by the plaintiff R.S.A.427/2018 14 that there is bar under Section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 as Section 60 specifically confers power for recovery of building or place from any person who may be in possession thereof. The defendant who resisted the suit claiming permanent tenancy has not contended that the suit is barred under Section 93 of the Act and there is lack of jurisdiction. No pleading was raised in the written statement or it was agitated before the trial court or before the first appellate court and now such a new contention was raised alleging that the suit is not maintainable. The proceedings of the Deputy Commissioner under Act, 1951 was dated 8[th] March, 2007. As per order dated 8.3.2007 the trustee of Tali Devaswom, Kozhikode was appointed as the trustee of Sree Ramaswami Kshethram and allowed to consider the said temple as a sub-temple and resume pooja in the temple after renovation. Though this order was passed after complying with all the formalities, R.S.A.427/2018 15 the order was not challenged though it is an appealable order. 15. It is useful to reiterate Section 93 of Act 1951 which reads as follows **:** “ **93. Bar of suits in respect of Administration or management of Religious institutions etc** .- No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act.” 16. A reading of the above section makes it clear that if any definite provision is made in the Act then a suit shall be instituted only in conformity with the provisions of the Act. It is pertinent to note no special provision is made in the Act for eviction of a tenant from the Devasowm property. Rent control Act 1965 is not made applicable as exempted from the provisions of the Act under G.O (M.S)59/1993. Therefore, eviction can only be under the provisions of the Transfer of property Act exercising the jurisdiction of the civil R.S.A.427/2018 16 court as proceedings under the general law is not barred . 17. In **A.A.Gopalakrishnan** v **Cochin Devaswom Board** (2007(4) KLT 965(SC) = (2007)7 SCC 482) the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/ shebaits/employees. (Also see Satheesh v Travancore Devaswom Board 2022(1)KLT 940) 18. A plain reading of Section 93 of the Act leaves no manner of doubt that, when no specific provision is made in the Act for eviction of a tenant from the Devaswom property, the civil court has jurisdiction to deal with a case for eviction under the general law. Therefore, I find absolutely no sufficient or cogent or justifiable reason so as to grant leave to raise additional grounds in the second appeal against the concurrent findings of both the courts. Therefore, I.A. No. 1 of 2021 is also dismissed with the appeal as no substantial R.S.A.427/2018 17 question of law is involved. The judgment and decree under challenge are not liable to be interfered with. This second appeal is liable to be dismissed _in limine_ and I do so. Dismissed. No costs Sd/- **SHIRCY V.** **JUDGE** sb