Kothandam v. Mahant Basant Bavaji Chala(Died)

O R D E R Challenging the order passed by the Executing Court, rejecting the application filed under Order XXI Rule 36, 96 to 98, objecting to the delivery of properties, this Civil Revision Petition has been filed.

¶2A suit in O.S.No.21 of 1973 had been filed by the plaintiff / Decree Holder/ 1st respondent herein and the same was decreed in favour of the plaintiff, pursuant to which, an Execution Petition in E.P.No.138 of 2000 has been filed. On that day, the revision petitioners have filed a petition, raising objection to deliver the properties. However, the said application came to be rejected by the Executing Court and the order of rejection is impugned before this Court.

¶3On 30.07.2024, this Court had passed the following interim order: "Heard the learned counsel appearing on either side.

¶2After hearing the case in detail and considering the importance of the issue involved in this case, this Court advised both sides to settle the issue amicably with mutual understanding. For this purpose, fixing of ground rent is required. Accordingly, the learned counsel suggested to appoint an Advocate Commissioner to determine the ground rent with the assistance of some experienced revenue officials as per the provisions of Tamil Nadu Minor Inams Estates (Abolition and Conversion into Ryotwari) Act, 1963(herein after referred to as ''the Act'') and the Rules made therein in respect of the extent of land in occupation of each revision petitioners in S.Nos.1692 /2 to 1692/50, Bavaji Street, Kancheepuram.

¶3Considering the request of the learned counsel and for proper adjudication of the case, this Court intends to appoint Thiru.T.N.Rajagopalan, learned Advocate, Madras High Court, Cell No.9884459893, at No.31, Law Chambers, High Court Buildings, Chennai-104 as Advocate Commissioner to determine the ground rent with the assistance of one experienced revenue official, who is well versed with the subject land and to determine the ground rent.

4.The Advocate Commissioner shall determine the ground rent as per the provisions of the Act in respect of the extent of land in occupation of each revision petitioners in S.Nos.1692 /2 to 1692/50, Bavaji Street, Kancheepuram.

5.He shall make a personal visit and determine the ground rent as per the provisions of the Act with the assistance of an experienced revenue official and shall submit a report on or before 10.09.2024.

6.He shall serve notice to both the parties before making his field inspection.

¶7The Advocate Commissioner fee is fixed at Rs.50,000/-.

¶8Both the parties have to bear the Advocate Commissioner's fee equally including incidental expenses of the Advocate Commissioner.

¶9Post this Civil Revision Petition on 17.09.2024."

¶4Thereafter, as the rent had not been fixed and the assessment had also not been made in respect of the land, this Court passed the following further order dated 03.12.2024: "This Court by an order dated 30.07.2024 had appointed an advocate Commissioner to fix the ground rent in terms of Section 13 of Tamil Nadu Minor Inams Estates (Abolition and Conversion into Ryotwari) Act, 1963. This Court is of the view that the assessment has not been made in respect of the land wherein the joint ground patta was already issued and pending the settlement proceedings, once again, directing the commissioner to fix the assessment of ground rent does not serve any purpose, for the simple reason when the patta has been issued in respect of their houses under Section 13 of the Tamil Nadu Minor Inams Estates (Abolition and Conversion into Ryotwari) Act, 1963, the concept of dual patta attracts and therefore the temple will be certainly entitled to revise the rent for the lands on which the houses are situated. Accordingly, since no assessment has been made, this Court directs the Commissioner to fix the fair rent instead of assessment of ground rent after taking note of the present guideline value prevalent therein and report before this Court on the next hearing date.

¶2At the request of the learned senior counsel for the petitioner, post on 11.12.2024."

¶5This Court proceeded to pass the aforesaid order dated

03.12.2024 in view of the fact that no rent had been fixed and that patta had been issued under Section 13 of Tamil Nadu Minor Inams Estates (Abolition and Conversion into Ryotwari) Act, 1963, keeping in mind the proposition of law laid down by the Supreme Court in the case of R.Manicka Naicker vs. E.Elumalai Naicker reported in (1995) 4 SCC 156, holding as under:

¶12The contention of. the appellant that by virtue of Section 13, the land underneath the building also vests in him must be rejected. Section 13 does not vest any property in a person in whom that property did not vest prior to the appointed day. It merely sets out that a building shall vest in the person who owned it immediately before the appointed day. Section 13(2) merely provides that the site on which the building stands will also be covered by section 13(1). Hence the site on which the building stands will vest in the person who owned it immediately before the appointed date.

¶13In the case of Sri Kumarakattalai Subrahmanyaswami Devasthanam v. K.S. Sunderarajulu Chettiar, ILR (1975) 1 Mad., 501, a learned Single Judge of the Madras High Court considered the provisions of Section 13 of the said Act and held that unless the owner of the building is also the owner of the site, the site will not vest in the owner. The effect of sub-section (2) is not to make a statutory transfer of the land to the owner of the building where it had not formerly belonged to him. An inamdar who continues to be in constructive possession of the site even after the notified date would be entitled to recover possession from his tenant. We respect-fully agree with these findings of the learned Single Judge.

¶14Moreover, in the present case, the patta granted expressly provides that the appellant has been granted a ground rent patta only in respect of the building, while the patta for the site has been granted to the respondent. A joint patta seems to have been granted in the names of both the appellant and the respondent because of the claim of the appellant to the building and the claim of the respondent to the site on which the building stands. Therefore, looking to the nature of the grant of the patta also it cannot be said that by virtue of the patta, the site on which the building stands has been, in any manner, transferred to the appellant or vests in him. The appellant cannot, therefore, claim that the decree for possession cannot be executed against him because he has become the owner of the site."

¶6The concept of dual ownership under Section 13 of the Act was also categorically laid down by the Hon'ble Supreme Court of India in the case of K.S.Thirugnasambandam Chettiar (dead) by Lrs etc., Vs. The Settlement Thesildar, Coimbatore & others reported in CDJ 1995 SC 1335 and relevant findings read thus:- "It is, therefore, not necessary that both the site and the building should belong to one and the same person so as to derive the benefit of Section 13 with effect from the appointed day. A dual estate is not repugnant to the provision, which evidently is of a very special nature, when ryotwari patta may not be admissible for a building per se, but may be admissible for the site standing thereon."

¶7Taking note of various judgments, this Court passed the interim order, directing the Advocate Commissioner to fix the fair rent instead of assessment of ground rent after taking note of the present guideline value prevalent therein. Learned Senior Counsel for the petitioners accepted to carry out the above exercise on that date and he is now agreeable for fixing the rent.

¶8Learned counsel for the 1st respondent contended that it is suffice, if the amount of rent is fixed, so that the respondent will be able to regulate all the tenants.

¶9Pursuant to the direction of this Court, the Advocate Commissioner has filed a report, wherein, he, after taking note of the Government Order in G.O.Ms.No.298 dated 20.07.2010 that was issued by the Department of Tamil Culture Endowments, the present market value and also the guideline value prescribed in the GO, worked out Rs.2.20/- per sq.ft. as monthly rent and accordingly, calculated the following rent to various persons, except Sl.Nos.17, 23, 46 and 76: S.No. Name Door No. Survey No. Extend as per the report (in sq.ft.) Rent per month

¶1Kothandam 1692/4 1178 2591.60 2, Jayanthi 1692/5 1491 3280.20

¶3Manikandan (record in the name of Sundaram) 1692/6A 1918.40

¶4Venkatesan (S/o.Ekambaram) 41B/4 1692/6B 1799.60

¶5A.Shanmugham 40A/5 1692/7A 1988.80 P.S.Mani 1692/7B 1727

¶7R.Vimala 39B/7 1692/8 1781 3918.20

¶8S.Kumari 39A/8 1692/9 1647 3623.40

¶9S.Saradammal 39A/8

¶10P.Perumal (Died) 1692/11 1684.5 3705.90

¶11P.Parvathi

¶12D.Dhanalakshmi

(Died) 1692/12C 1692/12E 1692/12B 2391.40

¶13N.Arumugham 1692/13B 1692/13D 2059.20

¶14K.Veerasami 1692/14B

785.5 1728.10

¶15K.Arumugam 1692/15 1716.00

¶16Senthil Kumar (record in the name of Saradammal) 33A 1692/16 1656.60

¶17T.Divakar

¶18V.Arumugham 1692/17 1491 3280.20

¶19K.Sekar 1692/20 1940.20

¶20K.Senthilkumar

¶21M.Mangalakshmi 30A/21 1692/21

656.50 1444.30 S.No. Name Door No. Survey No. Extend as per the report (in sq.ft.) Rent per month

(Died) LRs-P54 to P56 – Record stands in the name of Meganathan Pillai

¶22Poongavanammal 29B/22 1692/22 1397.00

¶23M.Seenu Sa

¶24A.Abdul Rashid (Died) LRs – P57, P58, P59 29/24A 1692/24

745.80

¶25K.Nagammal 1692/25 1692/26A 1692/26C Tot:936 2059.20

¶26K.G.Subramani Sha 1692/31 1560.50 3433.10

¶27Lakshmi 1692/32B

629.50 1384.90

¶28S.Varadappa Chettiar 1692/32A 1316.80

¶29Deivani Ammal 22A 1692/34 1195 2629.00

¶30K.Rajeswari Ammal 22B 1692/33

909.50 2000.90

¶31Lalitha Bai (Died) LR-P62, P63 1692/35 1141 2510.20

¶32Rajammal (Died) LR-P64 and P32 1692/36 1146 2521.20

¶33V.Marks 1692/36

¶34Syed Ahamad 1692/37 1410 3102.00

¶35Pitchaiamal Record in the name of Duraisamy 18B/37 1692/38 1716.00

¶36Gowri 18A/38 1692/39 1372.80

¶37Santhanam 1692/40 1394 3066.80

¶38R.Sakunthala (Died) LR-P65, P66 16A/40 1692/41 1297 2853.40 S.No. Name Door No. Survey No. Extend as per the report (in sq.ft.) Rent per month

¶39Roja Bai (Died) LR – P67 to P72 1692/42 1281 2818.20

¶40Soundarapandiyan

(Died) LR-P75 (Record in the name of Muniyammal) 1692/46 1692/47 1308

968.50 2877.60 2124.10

¶41Delli Babu (Record in the name of Balammal) 1692/49C

899.80

¶42Baggialakshmi

¶43N.G.Chandrasekaran

¶44N.G.Iyyappan 1692/48

925.50 2036.10

¶45Lakshmi Bai 1692/50 1291.50 2841.30

¶46N.Perumal

¶47P.Parvathy P47 to P52 – LRs of P10

¶48P.Indirakumar -

¶49P.Venkatesan -

¶50P.Gomathy -

¶51P.Sudhakar -

¶52P.Banumathy -

¶53S.Karpagam LR of P12

¶54Umamaheshwari P54 to P56 – LRs of P21

¶55Lavanya -

¶56Janathanan -

¶57A.Dilshaad Begum P57 to P59 – LRs of P24

¶58A.Shabeer Ahamed -

¶59A.Kalitha Begum - S.No. Name Door No. Survey No. Extend as per the report (in sq.ft.) Rent per month

¶60Kandasamy P60 to P63 – LRs of P31

¶61Jawaharlal Sha -

¶62Kuppusamy Sha -

¶63Sundar Sha -

¶64Chandramohan LR of P32

¶65V.C.Rangan P65 & P66 – LRs of P38

¶66A.Priya -

¶67Raji P67 to P72 – LRs of P39

¶68Latha -

¶69Kumar -

¶70R.Vijaya -

¶71R.Loganathan -

¶72S.Mallika -

¶73Manoranjitham W/o Late Sundar P73 to P75 – LRs of P40

¶74Punniyakoti -

¶75Devi -

¶76S.Vani

¶10Considering the nature of calculations made by the Advocate Commissioner, which is purely based on the guideline value set out in the Government Order and that the present market value has been taken note of, this Court is of the view that the rent so fixed by the Advocate Commissioner is well reasonable and the same can be adopted.

¶11In the order impugned herein, the challenge is to the delivery of properties. Admittedly, no rent has been paid all these years and assessment has also not been made even after issuance of patta under Section 13 of Tamil Nadu Minor Inams Estates (Abolition and Conversion into Ryotwari) Act, 1963. Though patta has been issued under Section 13 of the Act in respect of the superstructure, still the entire land on which the building is situate will be covered by Section 13(1), as held by the Apex Court in the case of R.Manicka Naicker vs. E.Elumalai Naicker (supra).

¶12The petitioners have agreed to pay the reasonable rent fixed by the Advocate Commissioner. It is open to the 1st respondent herein to enter into an agreement with all persons with terms, who are in occupation in the properties. It is also open to the 1st respondent to adopt the same value, while fixing the rent to persons as found in Sl.Nos.17, 23, 46 and 76. Needless to state that the 1st respondent is entitled to increase the rent in terms of the GO dated 20.07.2010 relied on by the Advocate Commissioner and renew the agreement every year. The rent fixed by this Court, by accepting the report of the Advocate Commissioner shall be paid with effect from 01.01.2025.

¶13This Court appreciates the earnest efforts taken by the Advocate Commissioner Mr.T.N.Rajagopalan, in fixing the rent based on the details collected from the Revenue Department, HR&CE and also various other Authorities. Though the learned counsel for the 1st respondent is willing to pay additional remuneration to the Advocate Commissioner, he has stated that he does not require any more remuneration, which is placed on record. Registrar (Judicial) of this Court shall keep all the original documents obtained from the parties by the Advocate Commissioner under safe custody. With the above observations and directions, this Civil Revision Petition is disposed of. No costs.

11.12.2024 Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order ar Note: Issue order copy on 18.12.2024 N.SATHISH KUMAR,J., ar To: The Subordinate Judge, Kancheepuram

11.12.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2024 CORAM THE HON'BLE JUSTICE N.SATHISH KUMAR 1. Kothandam 2. Jayanthi 3. Manikandan 4. Venkatesan 5. A.Shanmugham 6. P.S.Mani 7. R.Vimala 8. S.Kumari 9. S.Saradammal 10. P.Perumal (Died) 11. P.Parvathi 12. D.Danalakshmi (Died) 13. N.Arumugham 14. K.Veerasami 15. K.Arumugham 16. Senthil Kumar 17. T.Divakar 18. V.Arumugham 19. K.Sekar 20. K.Senthil Kumar 21. M.Mangalakshmi (Died) 22. Poongavanammal 23. M.Seenu sa 24. A.Abdul Rashid (Died) 25. K.Nagammal 26. K.G.Subramani Sa 27. Lakshmi 28. S.Varadappa Chettiar 29. Deivani Ammal 30. K.Rajeswari Ammal 31. Lalith Bai (Died) 32. Rajammal (Died) 33. V.Marks 34. Syed Ahamad 35. Pitchaiammal 36. Gowri 37. Santhanam 38. R.Sakunthala (Died) 39. Roja Bai (Died) 40. Soundarapandiyan (Died) 41. Delli Babu 42. Baggialakshmi 43. N.G.Chandrasekaran 44. N.G.Iyyappan 45. Lakshmi Bai 46. N.Perumal 47. P.Parvathy 48. Indirakumar 49. P.Venkatesan 50. P.Gomathy 51. P.Sudhakar 52. P.Banumathy 53. S.Karpagam 54. Uma Maheswari 55. Lavanya 56. Janathanan 57. A.Dilshaad Begum 58. A.Shabeer Ahamed 59. A.Kalitha Begum 60. Kandasamy 61. Jawaharlal Sha 62. Kuppusamy Sha 63. Sundar Sha 64. Chandra Mohan 65. V.C.Rangan 66. A.Priya 67. Raji 68. Latha 69. Kumar 70. R.Vijaya 71. R.Loganathan 72. S.Mallika 73. Manoranjitham 74. Punniyakotti 75. Devi 76. S.Vani ... Petitioners/Objectors-Petitioners (P47 to P76 impleaded by this Court) -vs- 1. Mahant Basant Bavaj Chala Lakshmandas Udasi Sadha, Madathipathi, Siva Kanchi Udasi Mutt. ... Respondent/Decree Holder 2. B.Anandan ... Petitioner/Respondent 3. Sujatha 4. Rajendira Kumar ... Petitioners/Objectors/Respondents Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to call for the records comprised in Unnumbered E.A.SR.No.851 of 2006 in E.P.No.138 of 2000 in O.S.No.21 of 1973 on the file of the Subordinate Judge Court at Kancheepuram dated 24.08.2009 and to set aside the same. For Petitioners : Mr.P.Valliappan, Senior Counsel For M/s.P.V.Law Associates For R1 : Mr.M.Murugananthan For R2 to R4 : Given up For Advocate Commissioner: Mr.T.N.Rajagopalan *****