Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • M/s. R. G. Rajan, V. Govindarajulu and B. Thanikachalam for Applt.
  • Mr. S. Narayana Ayyangar for Respt.
Judges
  • Ramaprasada Rao
  • Suryamurthy, JJ.
Acts
  • Rent Control) Act, XVIII of 1960 (hereinafter referred to as the Act)
  • S. 2(8) of Act XVIII of 1960 by Act XXIII of 1973,
  • S. 2 (8) of Act XVIII of 1960
  • Rent Control) Act
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • M/s. R. G. Rajan, V. Govindarajulu and B. Thanikachalam for Applt.
  • Mr. S. Narayana Ayyangar for Respt.
Judges
  • Ramaprasada Rao
  • Suryamurthy, JJ.
Acts
  • Rent Control) Act, XVIII of 1960 (hereinafter referred to as the Act)
  • S. 2(8) of Act XVIII of 1960 by Act XXIII of 1973,
  • S. 2 (8) of Act XVIII of 1960
  • Rent Control) Act
See more information ...
Smart Summary

Judgment Summary — Ramaprasada Rao, J.

Factual and Procedural Background

The Official Trustee, Madras entered into two documents styled as lease deeds (Ex. A‑1 and A‑2 dated 12 May 1961 and 4 January 1963) with M. A. Mohamed Burhanuddin Sahib (the original tenant). By those instruments Sahib obtained the right to collect rents from stalls in Connemera Market, Pudupet, Madras, and agreed to pay a monthly rent of Rs. 970 and to perform specified obligations (electricity, minor repairs, water charges, Corporation charges). The Official Trustee agreed to pay property tax and to continue the arrangement for five years from 1 March 1961, with an option to renew for three years.

Under Ex. A‑4 the Official Trustee purported to determine the arrangement with effect from 31 March 1969 and required Sahib to surrender possession; Sahib did not surrender and the Official Trustee sued for possession (Official Trustee as plaintiff; Sahib as first defendant; a second defendant said to have purchased a share was impleaded though no relief was sought against him). The City Civil Court decreed for the Official Trustee. The first defendant appealed to this Court (Appeal No. 19 of 1972). The first defendant died during the appeal and his legal representatives were substituted as appellants. N. S. Ramaswami, J. dismissed that appeal. L.P.A. No. 12 of 1976 challenges that judgment.

Separately, Mohan, J. made an order (in Appln. No. 3234 of 1975 in O.P. 158 of 1970 / O.S.A. No. 3 of 1976) giving directions that enabled the Official Trustee to take constructive delivery of the property so as to collect rents from stall‑holders. The applicants sought to set aside Mohan, J.'s order; Mohan, J. dismissed their application and awarded counsel's fee of Rs. 150. The present judgment reviews and affirms N. S. Ramaswami, J.'s decision and Mohan, J.'s order and dismisses both appeals/applications.

Legal Issues Presented

  1. Whether the Madras Buildings (Lease and Rent Control) Act, XVIII of 1960 (the Act), and in particular the definition of "tenant" in S.2(8), applied to the arrangement between the Official Trustee and the deceased transferee, thereby ousting the civil court's jurisdiction to entertain a suit for eviction/possession.
  2. Whether the amendment to S.2(8) by Act XXIII of 1973 (which clarified the definition of "tenant" for residential and non‑residential buildings) operated so as to protect the appellants as statutory tenants — and if so, whether that amendment should be applied by this Court in determining the appeal.
  3. Whether Ex. A‑1 and A‑2 were genuine leases creating a landlord‑tenant jural relationship (entitling heirs/legal representatives to claim statutory tenancy), or whether they merely vested in the transferee a right to collect rents (an agency with interest) and not a tenancy.
  4. Whether the notice of determination of tenancy (Ex. A‑4) was valid and sufficient.
  5. Whether the Official Trustee represented all sharers/beneficiaries and whether that affected maintainability of the suit for possession.
  6. Whether the Official Trustee's acceptance of rents after the demise of the original transferee created a fresh tenancy.
  7. Whether the Official Trustee should have obtained possession by a regular execution petition rather than by the Original Side Judge giving administrative directions (i.e., whether Mohan, J.'s order permitting constructive possession to collect rents was proper).

Arguments of the Parties

Appellants' Arguments

  • The Madras Buildings (Lease and Rent Control) Act, 1960 applied and therefore a civil suit for eviction/possession was not maintainable; the special enactment ousted the remedy in ordinary civil court.
  • The notice determining the tenancy (Ex. A‑4) was not in order (invalid), and hence the suit for possession must fail.
  • The Official Trustee did not represent all the interests of the shareholders (other beneficiaries), and therefore the suit as framed was not maintainable.
  • The acceptance of rents by the Official Trustee after the death of the first defendant amounted to creation of a fresh tenancy in favour of the appellants.
  • In the later application, the appellants contended that a regular execution petition should have been taken for possession and that the Official Trustee should not have obtained administrative directions from the Original Side Judge to collect rents directly.

Official Trustee / Respondent's Arguments (as reflected in the opinion)

  • Ex. A‑1 and A‑2 did not create a landlord‑tenant relationship; rather they vested a right in the transferee to collect market rents and to appropriate excess collections — effectively an agency/contractual arrangement with an interest, not a lease.
  • The Official Trustee properly determined the arrangement by Ex. A‑4 and was entitled to possession; acceptance of amounts after the transferee's death did not by itself create a fresh tenancy and, in subsequent proceedings, certain sums were characterized as damages for use and occupation (O.S. 5584 of 1974).
  • The Official Trustee had authority to take constructive possession and to deal directly with stall‑holders for collection of rents; it was proper for the Original Side Judge to give administrative directions in that regard.
  • Any co‑sharers who felt aggrieved by the Official Trustee's actions could assert their rights against the Official Trustee; the other sharers could not challenge the Official Trustee's seek for possession as a ground to defeat the suit.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Killick Nixon Ltd. v. V. R. Narayana Rao (Appeal No. 518 of 1973, Division Bench: Ramanujam & V. Ramaswami, JJ.) The principle that legal proceedings must be dealt with according to the law prevailing on the date of their disposal; evaluation of the effect of an amending provision in that context. The Court relied on the Division Bench's observation that where an amendment is clarificatory/declaratory of pre‑existing intent, the Court must apply the law as it stands at the date of disposal. This supported N. S. Ramaswami, J.'s approach in applying the amended S.2(8) when disposing the appeal.
Lachmeswar v. Kesharlal, A.I.R. 1941 F.C. 5 (= 53 L.W. 373 F.C.) The settled proposition that the rights of parties are to be determined as on the date of disposal of the appeal (i.e., appellate courts apply the law in force at disposal). The principle was invoked to justify applying the law as amended by Act XXIII of 1973 (a clarificatory amendment) when determining the rights of the parties on appeal.
Lakshmiammal v. Narayanaswami Naicke, A.I.R. 1930 Mad. 321 (= 1950 1 M.L.J. 63 = L.W. 21) Same fundamental principle that appellate rights are to be determined by the law as on the date of disposal. The Court cited this precedent for the settled rule that the Court must take into account statutory provisions as amended when deciding the rights of parties on appeal.

Court's Reasoning and Analysis

The Court proceeded in several analytical steps, applying statutory construction principles and factual analysis strictly as reflected in the record:

  1. Interpretation of S.2(8) of the Madras Buildings (Lease and Rent Control) Act, 1960:

    The Court compared the earlier (pre‑1973) and amended (Act XXIII of 1973) wording of S.2(8). It observed that the legislature, by the amendment, expressly distinguished between residential and non‑residential buildings and required specific factual nexus: for residential buildings the heir/legal representative must have been living with the deceased tenant as a member of the family until death; for non‑residential buildings the heir/legal representative must have been in continuous association with the tenant for carrying on the tenant's business until death and must continue that business thereafter. The Court treated the amendment as clarificatory/declaratory of the pre‑existing legislative intent to require such factual association as a sine qua non for statutory tenancy.

  2. Temporal application of the amendment:

    Relying on earlier authorities and the Division Bench decision in Killick Nixon Ltd., the Court accepted that appellate rights must be determined by the law prevailing at the date of disposal. Because the amendment was clarificatory of the pre‑existing intent, the Court applied the clarified definition when determining the appeal disposed by N. S. Ramaswami, J. Accordingly, appellants who were not shown to have had the required association with the deceased tenant could not claim statutory tenancy under S.2(8).

  3. Character of Ex. A‑1 and A‑2 (whether leases):

    The Court emphasized that courts must look beyond nomenclature. Although Ex. A‑1 and A‑2 were described as leases, the factual matrix showed that Sahib never occupied the non‑residential premises nor carried on any business there; rather he collected rents from the market, paid an agreed monthly sum to the Official Trustee, and undertook certain obligations. The Court concluded that the documents did not create a landlord‑tenant jural relationship; instead they vested in Sahib a contractual/agency‑type right to collect rents (an interest coupled with agency to appropriate excess collections). Because there was no occupation or commercial association by the appellants that satisfied S.2(8), Act XVIII of 1960 did not apply between the Official Trustee and the deceased transferee (nor to the appellants by succession).

  4. Acceptance of rents after death and creation of fresh tenancy:

    The Court rejected the contention that mere acceptance of rents by the Official Trustee after the transferee's death necessarily created a fresh tenancy. The court held that the question depends on proof of intention; in subsequent proceedings the Official Trustee characterized certain sums as damages for use and occupation, corroborating that the relationship was not treated as a landlord‑tenant relationship.

  5. Validity of the notice of determination (Ex. A‑4):

    The Court agreed with N. S. Ramaswami, J. that the notice of determination was not impeached on grounds other than representation of the entire estate; the Official Trustee represented the beneficiaries other than the second defendant and the notice was in order. The validity of the notice did not require further interference.

  6. Official Trustee's representation of sharers:

    The Court held that the contention that the Official Trustee represented only a small proportion of shareholders was not a ground which could defeat the Official Trustee's prayer for possession; other sharers could assert their rights against the Official Trustee if necessary.

  7. Mohan, J.'s administrative directions and constructive possession:

    The Court reviewed Mohan, J.'s order permitting the Official Trustee to take constructive possession to collect rents (in aid of the judgment of N. S. Ramaswami, J.) and found no reason to interfere. The Court noted the applicants' argument that a regular execution petition should have been filed, but concluded that the Original Side Judge's administrative directions were consistent with the confirmed entitlement of the Official Trustee and were thus proper.

Holding and Implications

Holding:

Both appeals/applications are dismissed.

  • L.P.A. No. 12 of 1976 (against the judgment of N. S. Ramaswami, J. in App. No. 19 of 1972) — appeal dismissed; the judgment of N. S. Ramaswami, J. stands.
  • O.S.A. No. 3 of 1976 (against the order of Mohan, J. in Appln. No. 3234 of 1975) — application dismissed; Mohan, J.'s order permitting constructive possession and collection of rents is upheld.
  • The Court ordered that there will be no order as to costs in both appeals (the opinion records this outcome).

Direct consequences:

  • The Official Trustee is entitled to possession of Connemera Market and to act in accordance with the directions previously given (including constructive possession to collect rents from stall‑holders).
  • Ex. A‑1 and A‑2 are held not to be leases creating a landlord‑tenant relationship between the Official Trustee and the deceased transferee; the Madras Buildings (Lease and Rent Control) Act, 1960 did not apply between those parties in the circumstances of this case because the statutory factual nexus required by S.2(8) was not established.

Broader implications: The Court applied and reaffirmed existing statutory interpretation principles (that a clarificatory amendment may be applied on appeal and that rights are to be determined by the law at the date of disposal). The opinion does not purport to set a novel legal precedent beyond these applications; it addresses the parties' rights and the propriety of the lower courts' orders in the present factual matrix.

VCS
Show full summary ...

    M.A.B Md. Sultan Moideen And Others v. Official Trustee, Madras And Another

    JUDGMENT

    Ramaprasada Rao, J.

    1. These two appeals are somewhat connected. L.P.A No. 12 of 1976 is directed against the judgement of N. S. Ramaswami, J. in App. No. 19 of 1972, and O. S. A. 3 of 1976 is against an order of Mohan, J. in Appln. No. 3234 of 1975 in O.P 158 of 1970. We shall first deal with the L.P.A No. 12 1976.

    2. M. A. Mohamed Burhanuddin Sahib entered into an arrangement with the Official Trustee, Madras, under Ex. A-1 and A-2, dated 12th May, 1961 and 4th January, 1963, which were styled as lease deeds, in and by which Mohamed Burhanuddin Sahib (hereinafter referred to as the original tenant) obtained a right to collect the rents from a market called Connemera Market in Pudupet, Madras. There are a number of stalls in the said market which is used as a daily market. Apparently for administrative convenience, the Official Trustee enabled Mr. Sahib to collect the rents from the various stalls in the market and pay him a monthly rent of Rs. 970, and the tenant was obliged to perform various other obligations which he undertook under the lease deed. For the purposes of this appeal, it is unnecessary to state in detail the terms and conditions under which the arrangement was entered into between the Official Trustee and late Mr. Sahib. The lessee, as Mr. Sahib was called, was to meet all the commitments as regards electricity, cause minor repairs and pay the water supply charges as also the charges to the Corporation of Madras for running the market in accordance with the rules of the Corporation of Madras, and the lessor, i.e, the Official Trustee, was to pay the property tax on the premises and continue the arrangement as above for a period of five years from 1st March, 1961, with option to Sahib to renew the so-called lease for a further period of three years on the same terms and conditions enumerated in what is known as the lease deed. Under Ex. A-4, the Official Trustee determined the lease with effect from 31st March 1969, and called upon Sahib, who was the first defendant in the main suit instituted by the Official Trustee, to surrender possession. The first defendant failed to do so. Hence, the suit for possession was filed by the Official Trustee impleading the said Mohammed Bahrunuddin Sahib as the first defendant and the second defendant who is said to have purchased a share in the property in ancillary proceedings. The Official Trustee impleaded the above second defendant only way of abundant caution and never sought relief against him. The first defendant's contentions were three-fold. Firstly, his contention was that the Madras Buildings (Lease and Rent Control) Act, XVIII of 1960 (hereinafter referred to as the Act) was applicable to the building, and there fore, a bare suit for eviction in a civil court and for consequential possession does not lie. He questioned the jurisdiction of the civil court to entertain the suit for possession. Secondly, he would say that the notice of determination of the tenancy was not in order and therefore, the suit has to fail. He also, contended that the Official Trustee did not represent all the interests of the shareholders, and that, therefore, the suit as such and as framed is not maintainable. The suit was originally tried in the City Civil Court and it resulted in a decree in favour of the Official Trustee. The first defendant filed an appeal to this court, but he died pending appeal on 11th May, 1972. Thereupon, the present appellants including the second defendant were brought on record as the deceased first defendant's legal representatives. N.S Ramaswami, J. once again considered the objections of the appellants, and would not agree with them. In particular, he would not countenance the contention that in view of the amendment of S. 2(8) of Act XVIII of 1960 by Act XXIII of 1973, the present proceeding for possession against them is incompetent as they have secured a statutory right to continue in the premises under the provisions of Act XVIII of 1960, and that therefore, the suit for possession in a civil court ignoring the provisions of the special enactment, viz., Act XVIII of 1960, is not in order. He would also not agree with the learned counsel for the appellants that the mere fact that the Official Trustee accepted the rents from the appellants after the death of the first defendant would by itself establish that a fresh tenancy is created, and therefore, the suit as framed cannot be proceeded with. The last contention that the Official Trustee represented only some of the estate did not gain favour with the learned Judge. On the question whether the notice of determination of tenancy was valid and proper, he would observe that the validity of the notice as per the original of the Ex.A.4 had not been questioned in any other respect except that the same had not been issued by a person who represented the entire estate. The learned Judge discountenanced this contention observing that the Official Trustee was not representing the entire estate, but only the other beneficiaries barring the second defendant who has also become a legal representative of the first defendant after his death. Ultimately, he dismissed the appeal. Hence, the L.P Appeal. The same contentions are pursued before us by the learned counsel for the appellants.

    3. The Madras Buildings (Lease and Rent Control) Act being a beneficil legislation, is intended to serve certain definite objectives of the Legislature. Under the old Act, XVIII of 1960, the tenant has been defined as meaning a person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son or daughter or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, etc. Hence, under the old Act, there was no express reference to a non-residential building, but on a fair reading of the said definition, the benefits of statutory tenancy provided for in this sub-clause could be availed of by the heirs and legal representatives of a deceased tenant provided they were also living with the deceased in the building as members of the tenant's family upto the death of the tenant. This requirement to get the statutory entitlement reflects the purpose of the Legislature. We are of the view that even under the old definition, the Legislature made it clear that unless the heir or the legal representatives, who project a claim to be continued as statutory tenant, establishes as a fact, that he was or they were living with the deceased tenant, viz., his or their predecessor-in-interest, he or they cannot obtain the statutory benefits under the provisions of Act XVIII or 1970. When the definition was amended as per Act XXIII of 1973, the following clause was substituted in the place of the erstwhile clause (Clause 8) of S. 2 of the Act reads as follows—

    “Clause (8): ‘Tenant’ means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representatives of a deceased tenant, who—(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant, and (ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant, and continues to carry on such business thereafter, and a personcontinuing in possession after the termination of the tenancy in his favour etc”

    Due to such an amendment, the Legislature, according to us again declared its intention by clarifying the position and by laying an emphasis upon such association of the heirs and legal representatives with the deceased tenant. On an examination of the two limbs of the definition of ‘tenant’ in S. 2(8) as amended in 1973, one gains the impression that in order to secure continuity in the tenancy the heirs should prove, as a fact, that they were in the case of a residential building, residing with the deceased tenant as members of his family till his death, and equally prove, in the case of a non-residential building, that they were in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter. It is, therefore, fairly clear that such a commercial association with the deceased tenant in the business or non-residential activity which was carried on by the deceased tenant in the premises is an essential sine qua non to claim the benefits under S. 2(8)(iii) of the Act. It appears to us that even after the amendment of the definition of ‘tenant’ in S. 2(8), the Legislature maintained its legislative intent to ensure that only heirs and legal representatives who were living with or associated with the deceased tenant in the case of residential or non-residential buildings as the case may be, can claim the benefits of continuing as statutory tenants. This premordial requirement has to be complied with and if there is no proof of nexus in the matter of living or in the matter of the continued association in the quondam mercantile activity of the deceased tenant, then the heirs or legal representatives, in each of these cases, would not be entitled to the benefits of Act XVIII of 1960. If, therefore, the halo of the above legislative intent pervaded the entire fabric of the particular legislation, and if what had been achieved by the amendent is to declare and clarify such a pre-existing intent, then the question whether the amendment which is clarificatory in nature is retrospective in operation does not arise at all. Strong reliance was placed upon a decision of a Division Bench of this Court in Ap. No. 518 of 1973—Killick Nixon Ltd. Bombay v. V.R Narayana Rao to which Ramanujam and V: Ramaswami, JJ. were parties. That was also acase of for recovery of possession. The question which came up for consideration before the Bench was whether the decision rendered by the trial court became null and void in view of the amending Act 23 of 1973. Directly the question did not arise as to what is the effect of the amending provision in S. 2(8) of the Act. The learned Judges, however, noticed the fundamental principle that a legal proceeding has to be dealt with in accordance with the law prevailing on the date of its disposal. In a case like this, where S. 2 (8) of the Act is, as we said, merely clarificatory and declaratory of the pre-existing intent of the Legislature, this court is bound to apply the law as on the date when the suit or the appeal was disposed of. In this sense, therefore, N.S Ramaswami, J. was right. Two decisions have been referred to by the learned Judges of the Division Bench referred to above. One is that of the Federal Court in Lachmeswar v. Kesharlal . A.I.R 1941 F.C 5=53 L.W 373 F.C and the other of our own court in Lakshmiammal v. Narayanaswami Naicke . A.I.R 1930 Mad. 321=1950 1 M.L.J 63=L.W 21.. In those cases, the proposition is well settled that the rights of parties have to be determined as on the date of the disposal of the appeal by this court, and that therefore, this court has to take into account the statutory provisions as amended, in deciding the rights of parties before it as on the date of disposal. It follows, therefore, that the appellants who were admittedly not associated with the deceased tenant, nor were in continuous association with the tenant for the purpose of carrying on the business of the tenant upto his death, nor did continue to carry on any such business thereafter, would not be entitled to the special privileges as statutory tenants under Act XVIII of 1960.

    4. The next question is whether Ex. A-1 and A-2 are really leases at all. Though this question was not mooted in its true perspective, yet it has become necessary for us to adjudicate upon the real nature of the transaction entered into between the Official Trustee and the late Sahib, the predecessor-in-interest of the appellants. Learned counsel for the appellant vehemently contends that the exhibits created a jural relationship of landlord and tenant within the meaning of the Act. It is common ground that at no time Sahib occupied the non-residential premises and did any business there. He never carried on any business which the appellants can proclaim to have continued. Courts ought not to be guided merely by the nomenclature and the description given to a particular document by the parties. If, on a general reading of the document concerned, a different legal or jural relationship could be carved out in the peculiar facts and circumstances of a given case, then the mere description given to a document by the parties may not have the weightage it would normally demand. In this case, the document is discribed as a lease. A lease implies a transfer of interest in immoveable property for the purpose of enjoying it. Here, the transferee, viz, the predecessor-in-interest of the appellants, did never enjoy the property at all, nor did he carry on any business in it. In effect, the right to collect the rents from the market was farmed out to the transferee who is called the lessee, and he was apparently making a profit out of it. The transferee or lessee undertook certain obligations in the so-called lease, but that would not make any difference. The purport of Ex. A.1 and A.2 appears to us to be to enable the transferee called the lessee to act as the agent of the Official Trustee with an interest coupled with such an agency to appropriate towards his services the excess collections to himself and pay an agreed sum called rent to the Official Trustee. If the transferee was in occupation of a portion of the premises it might be contended by the legal respresentatives that in so far as that portion of the non-residential building occupied by the deceased tenant is concerned, they could claim the statutory right by reason of succession. But, they should satisfy the primary requirements laid down in S. 2 (8) of the Act. They are unable to do so in this case. In our view, therefore, Ex. A.1 and A.2 cannot rightly be accepted as lease deeds, but they are instruments which vested a right in Sahib to collect rents from the Connemera Market. But, he had an interest in the said collections, Thus, the very foundation of the contention of the learned counsel for the appellants fails, and the suit for possession, in such circumstances, filed by the Official Trustee was in order. The Act, in our view, could not apply, nor could it be invoked by either party, as Ex. A. 1 and A. 2 do not forge the legal relationship of landlord and tenant as between the Official Trustee and the deceased Sahib.

    5. We also agree with the learned Judge that merely because the Official Trustee accepted the so called rents from the appellants after the demise of the original transferee, it would not mean that a fresh tenancy has been created. It depends upon the proof of the intention of the parties. In fact, the Official Trustee, when he filed O.S 5584 of 1974, for recovery of the various amounts which the appellants failed to pay by then characterised the said sums as damages for use and occupation of the building. The claim would not be named as such if the relationship was that of a landlord and tenant. This contention also fails.

    6. Regarding the notice of determination of tenancy, we are in entire agreement with N.S Ramaswami, J. and his observations regarding the same, and it is unnecessary for us to consider this contention any more.

    7. As regards the last contention that the Official Trustee represented only a small proportion of the sharers, this is not open for challenge by the other sharers, for the Official Trustee asks for possession, and if there are any sharers interested in sharing the rents and profits of the market, it is open to them to work out their rights as against the Official Trustee.

    8. For the reasons that there was no jural relationship of landlord and tenant as between the Official Trustee and the late Sahib, and also because the notice of determination of tenancy was in order, and as S. 2 (8) of Act XVIII of 1960 is declaratory of a pre-existing legislative intent, we are unable to agree with the learned counsel for the appellants that the judgment of N.S Ramaswami, J. needs interference. The appeal fails and is dismissed.

    9. Now, coming to O. S. App. No. 3 of 1976, Mohan, J. passed the following order,—

    “I see no reason to set aside my order because all that the applicant says is that he is in constructive possession. The earlier order of mine was to give effect to the judgment of N.S Ramaswami, J. rendered in Ap. No. 9 of 1972. In this view, I see no merit in these applications. Hence, they will stand dismissed. Counsel's fee Rs. 150 in all the three applications.”

    The learned Judge referred to the judgment in A. S. No. 19 of 1972, and confirmed that the Official Trustee was entitled to take possession of the market. What was, however, urged before him was that a regular execution petition ought to have been taken by the Official Trustee to obtain possession and that the Official Trustee ought not to have approached the Original Side Judge for directions in the matter of collecting the rents from the actual occupants of the stalls in the market. Such a direction was made by Mohan, J. having regard to the judgment of N.S Ramaswami, J. in A. S. 19 of 1972, which we have confirmed in L. P. A. No. 12 of 1976. Having found that such administrative directions were given by Mohan, J. the applicants who were the appellants in K. P. A. No. 12 of 1976, filed Appln. No. 3234 of 1975 seeking to set aside the order made by Mohan, J. earlier enabling the Official Trustee to constructively take delivery of the property which would enable him to collect the rents from the stall-holders direct. The learned Judge, again, referred to the judgment of N.S Ramaswami J. and reiterated that the Official Trustee had the requisite authority to seek for such constructive possession. We see no reason to interfere. O. S. Ap. No. 3 of 1976 also fails, and it is dismissed. There will be no order as to costs in both the appeals.

    VCS

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    M.A.B Md. Sultan Moideen And Others v. Official Trustee, Madras And Another
    (Jun 21, 1977)