Supreme Court of India
M. RAMASWAMY PILLAI (DEAD) BY LRS.versusHAZARATH SYED SHAH MIAN SAKKAF KHADIRI THAIKAL
- Citation
- 1992 INSC 234
- Decided
- 3 September 1992
- Disposal
- Appeal(s) allowed
- Bench
- KULDIP SINGH
Holding
The tenant had been in possession since 1942, the 1955 lease was a renewal of that tenancy, and therefore the tenant is entitled to the benefits of Section 9 of the Madras City Tenants' Protection Act notwithstanding the Wakf status of the property.
Summary
The plaintiff, a Wakf trustee, sued the tenant for possession of a plot in Thanjavur, alleging the tenant held over after a two‑year lease dated 17‑Nov‑1955 and had erected unauthorised structures. The tenant contended that he had been in occupation since 1942, that the 1955 deed was merely a renewal of an existing tenancy, and that he was entitled to relief under Section 9 of the Madras City Tenants' Protection Act. The High Court held that no landlord‑tenant relationship existed prior to 1955 and that the mutawalli lacked authority to grant the lease under the Wakf Act, thereby denying the tenant the Act's benefits. The Supreme Court rejected this view, finding overwhelming evidence of the tenant's possession from 1942, deeming the 1955 deed a renewal, and holding that the Wakf Act did not defeat the tenant's entitlement to Section 9 relief. Consequently, the appeals were allowed and the matter remanded for the trial court to fix a price and determine the minimum land required for the tenant's enjoyment.
Issues considered
- The existence of a landlord‑tenant relationship prior to the 1955 lease deed and whether the deed constituted a renewal of a tenancy dating from 1942.
- Whether the mutawalli, under the Wakf Act, 1954, had the power to grant a lease and if the lack of such power invalidates the tenant's claim under Section 9 of the Madras City Tenants' Protection Act.
- Whether the tenant is entitled to the relief provided by Section 9 of the Madras City Tenants' Protection Act despite the property being a Wakf asset.
Legislation cited
Subjects
tenancylease renewalholding overWakf propertySection 9landlord‑tenant relationshippossession suitlease validity
Judgment
M. RAMASWAMY PILLAI (DEAD) BY LRS. A
v.
HAZARATH SYED SHAH MIAN SAKKAF KHADIRI THAIKAL
SEPTtMBER 3, 1992
[KULDIP SINGH AND N.M. KASLIWAL, JJ.] B
Tenancy:
Madras City Tenants' Protection Act, 1921: Section 9-Tenant holding
over-Claiming to be in occupation since 1942-Lease deed executed only in
1955-Whether the lease commenced before the Wakf Act, 1954-Whether
c
tenant entitled to the benefit of the provision.
The Respondent· plaintiff filed a suit for possession or a plot or land
from the Appellant-tenant on the ground that the tenant was holding over
the land even after the expiry or two year5 fixed In the rent deed. It was D
also alleged in the plaint that the tenant had put up a superstructure on
the land without the knowledge or permission or the plalntilT. According
to the plaintiff, he wanted to construct pucca terraced shops on the site
for which he obtained the necessary licence from the Municipality and as
such the su!t property was needed for the plaintiff's own use.
E
The appellant-defendant contested the suit claiming that the super·
structures on the land had been put up by the previous tenants and be
\ purchased the same from them. It was further claimed that the plaintiff
had recognised the occupancy of the defendant and accepted him as tenant
and the registered lease deed executed In 1955 was in fact a renewal of the F
existing tenancy since 1942.
f
' The defendant also filed a separate petition under section 9 of the
• Madras City Tenants' Protection Act, and prayed for fixing a price for the
suit site and to c~nvey the property on payment of the price to be fixed by
the Court. This petition was opposed by the plaintiff on the ground that G
the property being a Wakf property it was Inalienable. The validity of the
lease deed was also challenged by the plaintiff. He also pleaded that even
if the tenant was entitled to the benefits of the Madras City Tenants'
Protection Act, he can claim the benefit only in respect of the residential
portion in the backside and not in respect of the entire property. H
383
384 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A By a common judgment the Munsif decreed the suit for p~ssession
In favour of the plaintiff and dismissed the petition of the tenant. The
appeals preferred by the tenant were dismissed by the Sub-Judge. On
appeal, the High Court held that there was no relationship of landlord
and tenant between the appellant and respondent even prior to the lease
'
I
B deed; that under the Mohammedan Law, the mutawalli had no power to
execute the lease deed in favour of the appellant for a period of two years
and as such the lease was Invalid. It also held that the lease was not
binding on the Wakf and the same could be avoided by Respondent in the
course of the proceedings under section 9 of the Madras City Tenants'
Protection Act.
c
Aggrieved against the High Couri's judgment, the tenant has •
preferred the present appeals.
Allowing the appeals, this Court,
D HELD: 1. The High Court simply considered the lease deed dated
17.11.1955 and held that there was no evidence to show that the appellant
had been In possession of the property as a tenant under the respondent
prior to the execution of the lease deed. The High Court placed reliance
on the recitals in the lease deed to indicate that the appellant was inducted
E Into possession for the first time pursuant to the terms of the lease and
observed that had the appellant been in possession of the property earlier
then such facts should have been recited in the lease deed. The High Court
was wrong in taking such a vi.-. There was ovenvhelming evidence on
record to show that the appellant was in occupation of the property long
F before 1955 and the stand taken by the appellant was correct that it was
purely a renewal of the existing tenancy which had already come into
existence from the year 1942. (389 B-C) ..
2. The only reason given for denying the benefit of section 9 of the
Madras City Tenants' Protection Act by the High Court to the appellant
G Is that while executing the lease deed dated 17.11.1955, the mutawalll had
no power to grant such lease under the provisions of the Wakf Act. The
High Court was not correct in taking the aforesaid view. The appellant in
the present case was a tenant long before the coming into force of the
Wakf Act 1954. The plaintiff had come forward with a clear case In the
H plaint that the appellant was a tenant holding over and as such he was not
M.R. PILLAI v. HAZARATH THAIKAL [KASL!WAL, J.] 385
entitled to take a different plea in reply to the petition filed under section A
9 orthe Act that the appellant was not a tenant as the property In question
was a wakf property and the mutawalll had no right to grant a lease. Thus,
In the facts and circumstances of this. case the defendant-appellant was
entitled to the benefit of the provision of section 9 of the Act. [389 E-F]
3. The case Is remanded to the trial court with a direction to decide B
the petition filed under section 9 of the Act In accordance with law. The
trial court shall first decide the minimum extent of the land which may
be necessary for the convenient enjoyment by the tenant. The court shall
then fix the price of the minimum extent of the land according to the
average market value of the three years immediately preceding the date C
of the order. While determining the aforesaid price of the land, the same
shall be reckoned at the average market value of the three years immedi-
ately preceding the present order. [390-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 783 and D .
784 of 1981.
From the Judgment and Order dated 2.4.80 of the Madras High
Court in Second Appeal No. 804 and C.R.P. No. 523 of 1978.
A.T.M. Sampath for the Appellant.
E
A. V. Rangam for the Respondent.
The Judgment of the Court was delivered by
KASLIWAL, J. This appeal by grant of special leave is directed F
against the judgment of the Madras High Court dated 2.4.1980. The
Hazarath Syed Shah Mian Sakkaf Khadiri Thaikal through trustee S.S.
Peeran Sahib (hereinafter referred to as the 'plaintiff') filed a suit on
15.9.1%7 for possession of a plot of land measuring 124' x 20' situated in
the town of Tanjore. The original tenant was M. Ramasamy Pillai who is
now dead and is represented through his legal representatives who are the G
appellants in the present appeal. The plaintiff brought the suit on the
allegation that the defendant took the suit property on lease for a period
of 2 years from 1.2.1955 on a monthly rent of Rs. 10 and executed a rent
deed on 17.11.1955. It was further alleged that the defendant was in
occupation of the site as a tenant ever since 1.2.1955 and after the expiry H
386 SUPREME COURT REPORTS(1992] SUPP. 1 S.C.R.
A of the period of 2 years fixed in the rent deed, the defendant was continuing
as a tenant holding over on the same terms. The defendant raised a
superstructure on the land in suit. Till October, 1966 the superstructure
was made up of mud walls and thatched roofing. But suddenly, the defen-
dant renewed the roofing of the front portion into one of calicut tiles
B without the knowledge or permission of the plaintiff. It was further alleged
in the plaint that the plaintiff wanted to construct pucca terraced shops on
the site for which the necessary licence had been obtained from the
Municipality and as such the property in suit was needed for the plaintiffs
own use.
c The defendant filed a written statement on 7 .11.1967 and inter alia
alleged that the site was originally in the occupation of Damodara Nair and
one Panchapakesan as lessees. Damodara Nair had put up a pucca man-
galore tiled roofing over the back portion of the land. Panchapakesan and
his father Sundaram Mudaliar had put up a thatched structure on the front
D portion of the land. The defendant had purchased the superstructures from
both the above persons in or about the year 1942. The defendant used the
back portion for his residence and the front portion for carrying on bicycle
and motor-cycle repairing shop. It was further alleged in the written
statement that the plaintiff had recognised the occupation of the defendant
and had also accepted him as a tenant and was receiving the rent from the
E defendant since 1942. In 1955 the plaintiff wanted a registered rent deed
and as such a register<d lease deed was executed on 17.11.1955. lt was in
fact, a renewal of the existing tenancy. The defendant also took the plea
that under the Madras City Tenants Protection Act, it was open to the
tenant to claim compensation or pray for conveyance of the site on a price
F to be fixed by the court. The defendant also took a plea that the suit was
not maintainable as the property formed part of a Minor Inam under the
Minor Inams Abolition Act 30 of 1963, but we ar.e not concerned with this
objection now.
The defendant also filed a separate petition nnder Section 9 of the
G Madras City Tenants' Protection Act (hereinafter referred to as the 'Act')
on 6.11.1967 and prayed for fixing a price for the suit site and to convey
the property on payment of the price to be fixed by the Court. In reply to
this petition under Section 9, a stand was taken by the plaintiff that the
property being a· wakf property as such it was inalienable. It was also
H pleaded that the lease of the site under the lease deed of 1955 was invalid.
M.R. PILLAI v. HAZARATH THAIKAL [KASL!WAL, J.] 387
It was also pleaded that even if the tenant was found entitled to the benefits A
of the City Tenants' Protection Act, he can claim the benefit only so far as
the residential portion in the back side was concerned and not in respect
of the entire property. The Learned Munsif after remand of the case to
him, by a common judgment dated 10.3.1976 decreed the suit for posses-
sion in favour of the plaintiff and dismissed the petition of the tenant filed B
under Section 9 of the Act. The Learned Munsif held that the lease deed
dated 17.11.1955 being invalid, the tenant was not entitled to take benefit
of Section 9 of the Act. The tenant then filed appeals against the judgment
in the suit for possession as well as miscellaneous appeal against the
dismissal of his petition filed under Section 9 of the Act. Both the appeals
were dismissed by the Learned Subordinate Judge. The second appeal in C
both the matters were also dismissed by the High Court by a common
judgment dated 2.4.1980. The tenant aggrieved against the judgment of the
High Court has filed the above-mentioned two appeals.
We have heard learned counsel for the parties. The High Court held D
that there was no evidence on behalf of the appellant to show that he had
been already recognised as a lawful tenant of the property prior to 1955 by
the respondent. The High Court observed that a perusal of the recitals in
Exhibit A.5 the lease deed dated 17.11.1955 indicated that possession was
with the respondent and the appellant was being inducted into the posses- E
sion for the first time and if really, the appellants had earlier been in
possession of the property concerned as a tenant having been inducted
therein as far back as on 1942 there was nothing that precluded the parties
from reciting this fact in 1955. The High Court thus held that under the
above circumstances it was not possible to conclude that there existed the
relationship of landlord and tenant between the appellant and the respon- F
dent even prior to Exhibit A.5.
The High Court further held that under the Mohammedan Law the
mutawalli had no power to execute the lease in favour of the appellant for G
a period of two years and as such the lease was invalid. The High Court
then held that though the lease in favour of the appellant was not void but
only voidable, but in the counter filed by the respondent to the application
filed by the appellant under Section 9 of the Act, a specific objection had
been taken that the lease was not binding on the wakf as the same was not
for its benefit nor made for any necessity. The lease was thus not binding H
388 SUPREME COURT REPORTS[1992) SUPP. 1 S.C.R.
A on the wakf, even in 1955 and the same can certainly be avoided by
respondent in the course of the proceedings under Section 9 of the Act.
Taking the aforesaid view the High Court held that the appellants were not
entitled to invoke any benefits under the Act.
In the facts and circumstances of this case the view taken by the High
B Court is wrong and is liable to be set aside. A perusal of the plaint dated
15.9.1967 clearly shows that the plaintiff had come forward with a clear
case that the defendant was a tenant holding over and the High Court was
not right to to make out a new case beyond the pleadings. In para 3 of the
plaint it was stated as under:-
c "The defendant is in occupation of the site of the under-
mentioned property as a tenant ever since 1.2.1955 and is
continuing as a tenant after the expiry of the period fixed
in the rent deed holding over on the same terms.'
D Again in para 10, it was stated as under:-
"As the defendant has specifically undertaken in the rent
deed to surrender vacant possession of the site after the
expiry of the lease period and as he is now holding over on
the same terms, with the consent of the Plaintiff-Thaikal,
E he has no right to refuse to deliver vacant possession of the
site to the Plaintiff-Thaikal whenever called upon to do so,
particularly when the Plaintiff-Thaikal requires the site for
raising pucca terraced structures thereon."
F The defendant had taken the plea that he had purchased the super-
structures in or about the year 1942 from Damodara Nair and
Panchapakesan and had taken up his residence in the tiled portion and in
the front portion he had been carrying on bicycle and motor-cycle repair
shop. The trial court had recorded the finding that it was made manifest
by the evidence adduced in this case both oral and documentary that the
G defendant was in possession of the superstructure even from the year 1942.
The defendant hatl filed property tax receipts issued by the Thanjavur
Municipality to the niutawalli, the amount having been paid by the defen-
dant as disclosed by Exhibits B.5 to B.51 ranging over a period from 1942
to 1960. The trial court also observed that Exhibits B.61 to B.68 were the
H receipts issued to the defendant evidencing payments of rent to the
M.R. PILLAI v. HAZARATII TIIAIKAL (KASLJWAL, J.] 389
mlltawalli. The trial court held that there can be no doubt that even from A
the year 1942 the defendant must have been in possession of the super-
structures on the suit property. The High {:ourt simply considered Exhibit
A.5 dated 17.11.1955 and held that there was no evidence to show that the
appellant had been in possession· of the property as a tenant under the
respondent prior to the execution of Exhibit A.5. The High Court placed B
reliance on the recitals in Exhibits A.5 to indicate that the appellant was
inducted into possession for the first time p1!fsuant to the terms of the lease
and observed that had the appellant been in possession of the property
earlier then such facts should have been recited in Exhibit A.5. The High
Court was wrong' in taking the above view. There was overwhelming
evidence on record tu show that the appellant was in occupation of the C
property long before 1955 and the stand taken by the appellant was correct
that it was purely a renewal of the existing tenancy which had already come
into existence from the year 1942. Be that as it may the suit for eviction
has been filed on 15.9.1967 and the plaintiff himself had come forward with
a clear case that the defendant was a tenant holding over.
D
The ouly reason given for denying the benefit of Section 9 of the City
Tenant's Protection Act by ,the High Court to the appellant is that while
executing the lease deed Exlii!>it A.5 dated 17.11.1955, the mutawalli had
no power to grant such leas~ l!!lder the provisions of the Wakf Act 29 of
1954 as amended by Ameodmen! Act 34 of 1964, Io our opinion that the E
High Court was not correct in taking the aforesaid view. The appellant in
the present case was a tenant long before the coming into force of the W akf
Act 1954. The plaintiff had come forward with a clear case in the plaint
dated 15.9.1967 that the appellant was a tenant holding over and as such
he was l\Ot entitled to taKe a different plea in reply to the petition filed
F
under SeCtion 9 of the Act that the appellant was not a tenant as the
property in question was wakf property and the mutawalli had not right to
grant a lease vide Exhibit A.5. dated 17.11.1955. Thus, in the facts and
circumstances of this case we hold that the defendant appellant was
entitled to the benefit of the provision of Section 9 of the Act.
G
It may however be noted that Clause (b) to sub-section (1) of Section
9 as added by Section 6 (ii) of the Madras City Tenants' Protection
(Amendment) Act, 1960, reads as under:-
"On such application, the court shall first decide the min- H
390 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A imum extent to the land which may be necessary for the
convenient enjoyment by the tenant. The court shall then
fix the price of the minimum extent of the land decided as
aforesaid, or of the extent of the land specified in the
application under clause (a), whichever is less. The price
aforesaid shall be the average market value of the three
B years immediately preceding the date of the order. The
court shall order that within a period to be determined by
the court, not being less than three months and not more
than three years from the date of the order, the tenant shall
pay into court or otherwise as directed the price so fixed
c in one or more instalments with or without interest."
According to the above provision the court shall first decide the
minimum extent of the land which may be necessary for the convenient
enjoyment by the tenant. The court shall then foe the price of the minimum
extent of the land according to the average market value of the three years
D immediately preceding the date of the order. While determining the
aforesaid price of the land, we make it clear that the price shall be
reckoned at the average market value of the three years immediately
preceding the present order.
In the result, we allow these appeals, set aside the impugned order
E of the High Court as well as of the courts below and remand the case to
the trial court with a direction to decide the petition filed under Section 9
of the Act in accordance with law and in the manner indicated above.
Parties to bear their own costs.
G.N. Appeals allowed.
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