IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/03/2004
CORAM
THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM
SECOND APPEAL NO.1197 OF 1993
1. K. Krishnan
2. S.M.K.K. & Co.
Through its Partner .. Appellants
-Vs-
1. Idol of Sree Muniswaraswamy
through its Trustees
A.P.Shanmugha Sundaramoorthy
and A.P.Shanmughanathan
2. A.P.Shanmughasundaramoorthy
3. A.P.Shanmughanathan
4. Vallimuthu Nadar .. Respondents
This second appeal is preferred under Section 100 of CPC against the
judgment and decree dated 30.4.1993 made in AS No.104 of 1992 on the file of
the learned Principal Subordinate Judge, Tiruchirapalli confirming the
judgment and decree dated 6.3.1992 made in OS No.364 of 19 85 on the file of
the learned Principal District Munsif, Tiruchirapalli.
!For Appellants : Mr.P.Mani
^For Respondents : Mr. T.R.Rajaraman
:JUDGMENT
The defendants, who suffered with a decree in the hands of both the
courts below in a suit for declaration, recovery of possession and for rental
balance, have brought forth this second appeal.
2. The short facts necessary for disposal of this appeal are as
follows:
The suit property, a thatched shed, which is resting on the eastern
wall of the plaintiff’s temple in Door No.1, Rengasamy Chettiar Street, Trichy
belonged to the plaintiff’s temple. The second plaintiff is the trustee of
the first plaintiff temple. The first and the second defendants have been in
possession as tenant from 1969 agreeing to pay the monthly rental. The
present agreed rent is Rs.135/- per month. There was a wilful default on the
part of the defendant in making the payment from 1.3.1982. The arrears amount
due for the said period till the filing of the suit was Rs.4,837.50 deducting
the advance of Rs.300/-. The first and the second defendants have sublet the
premises to the third defendant without the consent of the plaintiff. A
presuit notice was issued terminating the tenancy, which resulted in a reply
notice with false allegations denying the title of the plaintiff, and hence,
there arose a necessity for filing the suit.
3. The suit was resisted by the defendant mainly on two grounds that
the suit property was a Government poramboke, and thus, the plaintiff was not
entitled for the relief as asked for; that insofar as the recovery of
possession, the tenancy agreement pleaded by the plaintiff was false and there
was no landlord and tenant relationship between the parties, and hence, the
suit was to be dismissed.
4. The trial court framed necessary issues, tried the suit and
decreed the same. The appeal filed by the defendants was also dismissed by
the first appellate court, and hence, this second appeal at the instance of
the defendants.
5. At the time of admission, the following substantial questions of
law were formulated by this Court for consideration:
1) Whether the courts below erred in law and misdirected themselves in
declaring that the suit property belong to the first plaintiff when admittedly
the suit property is Government poramboke?
2) Whether the courts below erred in law and misdirected themselves in
casting the burden on the defendants to prove the negative that there existed
no tenancy when in law it is for the plaintiffs to prove their case of prior
possession and letting the defendants into possession by sufficient evidence?
6. Heard the learned counsel for the appellants and also the learned
counsel for the respondents on those contentions.
7. As seen above, the plaintiff temple sought the relief of
declaration and recovery of possession of the suit mentioned property alleging
that the first and second defendants, pursuant to an oral lease, got into
possession of the property agreeing to pay the monthly rental, and they have
been paying so, but there was a default on their part from 1.3.1982 till the
filing of the suit, which amounted to Rs.4837.50; that after exchange of the
notice, the su it was filed.
8. The defence plea was twofold that the plaintiffs are not the owner
of the property, and there was no landlord and tenant relationship between the
parties. In order to substantiate the case, the plaintiff, the trustee of the
temple, was examined as P.W.1. He has deposed that the property belonged to
the temple. There are so many tenants including the plaintiffs; that the
defendants 1 and 2 have been in possession of the property from 1969 onwards
and they have been paying rentals and the same has also been recorded in the
registers maintained. D.W.1, on the contrary, has deposed that there was
neither any agreement of tenancy nor any payment of rental in the past, but
they encroached upon the Government poramboke from the year 1969 and they have
been running a jaggery business in the suit property.
9. Admittedly, the suit property is a thatched shed abutting the
temple wall and number of shops are situated on both sides of shop, in
question. It is not the case of the plaintiffs that there was any written
agreement between the parties, and hence, any agreement in the written form
could not be expected. There are sufficient evidence to show that P.W.1 was
the trustee and competent to give evidence on behalf of the temple. In
respect of the property, in question, B-Memos were served on the plaintiffs
and they have paid charges also, which were marked as Exs.P.34 to P.37, which
stood in the name of the second plaintiff, who was shown as trustee of Kuttala
Parameswari Temple. In order to prove the payment of rental, the plaintiffs
have relied on the ledger books maintained by the trustee, which were marked
as Ex.A.2 to A.33. A scrutiny of the ledger books would clearly indicate that
they were maintained regularly. This Court is unable to see any reason why
the account books relied on by the plaintiff has to be rejected or to be
disbelieved. On the contrary, the case of the defendants was that from the
year 1969, they have been in possession and enjoyment of the Government
poramboke, but not even one scrap of paper has been placed to believe the
same. D.W.1 has, candidly, admitted that the rental payments, if made, would
be evidenced from the accounts books maintained by him. The contention of the
appellants’ side that the defendants were not called upon to produce the
account books to prove contra cannot be accepted. The settled proposition of
law is that in order to take a correct decision on a given issue, a duty is
cast upon both the plaintiffs and the defendants to assist the court. But, in
the instant case, when the defendants have admitted that they were maintaining
the accounts, there could not be any impediment for them to produce the same.
But, the plaintiffs have produced all the ledger books, wherein entries as to
the payment of rental by the defendants has been clearly entered all along the
period. This would be clearly indicative the truth of the case of the
plaintiffs. B-memos were obtained by the defendants only after the issuance
of the notice in the year 1982 by the plaintiffs.
10. Under the stated circumstances, both the courts below have
recorded a concurrent finding that the defendants was the tenant of the
plaintiffs. Once the defendants are found to be the tenant of the plaintiffs
landlord, they were estopped from questioning title of the plaintiffs as to
the ownership. This Court is unable to notice any reason to disturb the
concurrent finding of both the courts below.
11. In the result, this second appeal fails and the same is
dismissed, leaving the parties to bear their costs.
Index : Yes
Internet : Yes
vvk
To
1. The Principal Sub court, Tiruchirapalli
2. The Principal District Munsif, Tiruchirapalli
3. The Record Keeper, VR Section,
High Court, Madras