JUDGMENT
S. Ashok Kumar, J.
1. This Civil Miscellaneous Second Appeal has been filed against the Judgment dated 21.7.2006 made in A.S.No:258 of 2006 passed by the learned V Additional Judge, City Civil Court, Chennai, confirming the order dated 14.3.2006 made in EA. No. 1607 of 2002 in O.S.No:661 of 1997 passed by the learned IX Assistant Judge, City Civil Court, Chennai.
2. E.A. No: 3195 of 2005 had been filed by the appellant herein under Order XXI Rule 97 and Rule 101 of CPC read with Section 151 of CPC in the execution court praying to record the appellant’s obstruction in the Execution Petition.
3. The few facts in brief for the disposal of this appeal are as follows:
(a) The suit O.S.No:661 of 1997 had been filed by the respondent herein for the relief of declaration, consequential injunction and for delivery of vacant possession. In the said suit the plaintiff contended that the 4th defendant Rajeswari and her uncle, were the owners of the premises bearing Door No. 62, South Coovum River Road, Pudupet, Chennai-2 which consists of 5 shops and that the 4th defendant was the exclusive owner of four shops and that the plaintiff was a tenant under the 4th defendant in respect of one shop, and that the third defendant (Appellant herein) was a tenant under the 4th respondent in respect of another shop. The plaintiff had also contended that he was running a second hand motor spare parts business under the name and style of M.A. Peer Mohammed & Sons in the suit shop and that he was a heart patient and due to the heart ailment he could not attend to the business, as he has been advised rest, and that he asked two of his sons, the first and second defendants in the suit to assist him in the business and granted permission to them in March, 1993 to look after the business and directed them to submit the reports of the daily affairs and to render accounts. As they did not report about the day to day affairs and render accounts after December, 1996 the plaintiff revoked the permission granted to them and directed them to deliver the shop and the material to the plaintiff and when they did not do so, the above suit was filed.
(b) A detailed written statement was filed on behalf of the appellant herein, stating that he alone was in possession and that defendants 1 and 2 had nothing to do with the suit property, but no petition was filed either to amend the pleading or the prayer. It was the case of the appellant that the respondent herein had released his complete rights over the suit shop in favour of the defendants 1 and 2 under agreement dated 21.6.1993 after receiving a consideration of Rs. 75,000/= for the business and all the items inside the shop, as he had left his wife and married a 15 years old girl some time earlier, because of which great turmoil had been created in his family. Thereafter the defendants 1 and 2 approached the appellant herein and requested him to help them to run the business and a Management Agreement was executed on 9.9.1995 between the defendants 1 and 2 and the appellant herein as per which the appellant paid the defendants 1 and 2 a sum of Rs. 2,00,000/= as security deposit. Thereafter the defendants 1 and 2 completely severed their connection with the business and entrusted the business entirely to the appellant herein and an agreement was thereafter executed to that effect on 3.3.1996.
(c) The learned Trial Judge considering the evidence both oral and documentary and the submissions made by the counsel appeared on either side, decreed the suit on the ground that the agreement between the respondent herein and his two sons dated 21.6.1993 had not been produced in the court.
(d) Thereafter E.P. No. 1607 of 2002 was filed by the respondent to execute the decree passed in the said suit. The appellant herein was not a party in the E.P. and the execution court made it clear that order of eviction had been passed only against the defendants 1 and 2 and that no relief was claimed against the appellant herein. After the E.P., was ordered, the bailiff went to the suit property to execute the warrant of delivery of possession and found that the appellant herein was in possession of the property. After examining the records, produced by the appellant, the plaintiff returned the warrant to the Executing Court stating that it appeared that the appellant alone was in possession of the suit property and that the documents produced revealed that the appellant has been doing business in the property by himself. Instead of filing a petition for removal of the obstruction, the respondent herein filed a petition for police aid. Thereafter the appellant having no other choice filed a petition in E.A.No:3195 of 2005 under Order XXI, Rules 97 and 101 of CPC to record him as an obstructor and decide the issue. But the Executing Court dismissed the said EA, against which the appellant preferred an appeal in A.S.No:258 of 2006. The Appellate Judge also concurred with the findings of the Executing Court and dismissed the appeal. Hence this appeal.
4. Learned Counsel appearing for the appellant vehemently contended that the learned V-Additional Judge, City Civil Court dismissed the appeal preferred by the appellant herein mainly on three grounds viz., (i) Exs.P.1 to P.66 being the rental receipts issued by the landlady in favour of the appellant herein could not be relied on as all of them were issued on a single day and writte3n by a single person with a single pen; (ii) Ex.P.67, the lease agreement executed between the landlady and the appellant herein dated 10.12.2004 could not be relied on as the Rs. 20/= non judicial stamp has been purchased from the concerned office in Tuticorin on 5.9.2003, but from the rubber stamp it appears it has been sold by a person from Madurai; and (iii) there was a settlement reached between the respondent Peer Mohammed and Ms.Rajeswari in CRP.No:46 of 2003, dated 15.6.2004 ‘per which it was agreed that the tenant would pay Rs. 550/= per month towards rent and the arrears within six months.
5. But, as regards the first finding of the Appellate Judge, the learned Counsel for the appellant argued that there was no evidence let in to arrive at such a finding and in all probability the landlady could have used the same pen. Likewise merely because the stamp paper used for executing Ex.P.67 had been issued at Tuticorin and sold at Madurai would not in any way invalidate the document. In fact, the courts below have overlooked Ex.P.67, where it has been clearly set out the circumstances under which Abdul Rahman had been recognised as a tenant by the landlady after Peer Mohammed had left the shop, consequent to his second marriage and Asan Mohiddeen and Sirajuddin had also left, after handing over the shops to Abdul Rahman.
6. As regards the third ground, the learned Counsel for the petitioner contended that admittedly there was a settlement reached between the respondent Peer Mohammed and Ms. Rajeswari in CRP. No. 46 of 2003 and as per which it was agreed that the tenant would pay Rs. 550/= per month towards rent and arrears within six months. Further, the plaintiff never claimed that there is a landlady tenant relationship as on today. It is pertinent to note that not a rupee was paid by him towards rent or as arrears even after the order was passed in the said CRP on 15.6.2004.
7. Apart from the above to sustain the case of the the appellant herein the learned Counsel submitted the following
contentinos:
(a) There is no decree for delivery of possession against the appellant herein who was the third defendant in the suit and a decree of delivery of possession is only against 1st and 2nd defendants. It is pertinent to note that the decree for delivery does not even include the agents, servants or anybody acting under or in trust for the defendants 1 and 2 but only defendants 1 and 2 themselves.
(b) Even though the plaintiff had filed a petition for amending the original decree to incorporate the shop portion, along with the material, no petition for amendment of the pleadings or the relief was filed even after the written statement filed by the appellant stating that he was in possession.
(c) The very fact that the respondent/plaintiff himself admitted in the sworn affidavit in Contempt Application No. 14880/97 on 30.4.1997, that all the items belonging to him had been removed from the suit property by defendants 1, 2 and 3 will clearly indicate that no items of the plaintiff were left in the suit property beyond 30.4.1997 and therefore, cannot be delivered to him consequent to the orders passed in E.P. No. 1607 of 2002.
(d) During trial of E.A. No. 3195 of 2005 the appellant herein deposed that he has been recognised as a tenant by the landlady and a lease agreement had been executed by her under Ex.P.67. Exs.P.1 to P.66 are the rental receipts issued by the landlady to the appellant. Peer Mohammed being no longer the tenant in respect of the suit shop under the landlady, the decree cannot be executed because the suit itself had been filed on the ground that he was the tenant and that the 1st and 2nd defendants were not handing over the business being run therein back to him, besides the Peer Mohammed was not entitled to ask for delivery of possession of the shop wherein he was a tenant at the time of filing of the suit. The subsequent even of the plaintiff no longer being a tenant under the landlady clearly disentitles him from executing the decree. The defendants 1 and 2 no longer being in the suit property, the appellant cannot be evicted as he is not a party to the decree for delivery of possession, passed in the suit. Also, he had been put into possession prior to the filing of the suit itself.
8. According to the learned Counsel for the revision petitioners, Order XXI Rules 97, 98, 99, 100 and 101 clearly indicate that the possession of the appellant in the present facts and circumstances of the case is protected as the appellant was put in possession before the suit was filed in the year 1995 itself and even in the judgment of the trial court there is no finding that he was put into possession pending the suit.
9. The learned Counsel for the revision petitioners also referred to the judgments of this Court as well as the Supreme Court reported in AIR 1989 SC 1247; AIR 1992 SC 702; 1983 II MLJ 191 and AIR 1994 SC 800 for the proposition of law that the appellate court is entitled to take into consideration the subsequent facts and events which have come into existence after the decree and it can mould the reliefs suitably. Therefore, the plaintiff in the suit and the 4th respondent ceasing to be a tenant and landlady relationship, the plaintiff is not entitled to the relief claim in the
E.P.
10. It is also contended that the very fact that not a single rupee was paid as rent by the plaintiff to the landlady right from 1993 onwards and no evidence had been produced in the court regarding such payment, would clearly show that he was well aware that he was not connected in any manner with the shop at all as a tenant or in any other capacity, and that is why he had not made any payment. Similarly, the landlady also did not take any legal proceedings against the plaintiff or his sons for eviction on any ground, including non payment of rent, because she was well aware that neither the plaintiff nor his two sons were the tenants, all of them having left the shop. She had recognised the appellant herein who was in occupation and possession of the shop as her tenant and has received rents from him, and in fact was receiving rents as on today also.
11. In fact in the counter to the Miscellaneous Petition No. 2 of 2006 filed in this appeal, the landlady has stated that the CRP relates to fixation of fair rent between the landlady and the plaintiff for the period for which he was in occupation and even the fair rent fixed was not paid by the plaintiff and therefore taking into account the fact that the appellant was in possession of the property and agreed to pay the rents, she recognised the appellant as a tenant and he has been paying the rents to her from January 1998 onwards regularly as agreed.
12. Per contra, learned Counsel for the respondent/plaintiff contended that since the plaintiff was not in occupation, he has not paid the rents and also the arrears as ordered in the CRP. There is no termination of tenancy between the plaintiff and the landlady and in the absence of the same, the landlady cannot recognise the appellant as her tenant.
13. As rightly held by the learned appellate Judge unless the appellant proves his claim he is not entitled to any relief whatsoever. In order to substantiate his claim one Mohideen was examined as P.W.2 and one Ahamed Nazir was examined as P.W.3. However, they did not speak about the handing over of the shop by the respondent to his sons Asan Mohideena and Sirajdeen. Likewise, they did not speak about the entrustment of business to the appellant by Asan Mohideen and Sirajudeen, the sons of the respondent or the alleged management agreement said to have been executed in between Asan Mohideen and Sirajudeen on the one hand, and the appellant on the other on 9.9.1994. So also, there is no evidence on proof with regard to the alleged payment of Rs. 2 lakhs and Rs. 1 lakh by the appellant to the said Asan Mohideen and Sirajudeen. They have not been examined to substantiate the allegations with regard to the handing over of the business and the shop therefor by them to the appellant. If there was a transfer of the business and the tenancy rights in favour of the appellant by the two sons of the plaintiff, definitely there could have been any settlement reached between the respondent and the landlady. Thus when the appellant is not able to substantiate the subsequent facts and events, he is not entitled to any relief.
14. When the E.A. No. 3195 of 2005 in E.P. No. 1607 of 2002 has been dismissed disbelieving the rental receipts Exs.P.1 to P.67 as they are with same pen and same ink with same handwriting, the appellant could have filed a petition in the appellate stage to subject the documents for scientific analysis as to the age of the ink, scribe of the ink etc., But he has not done so. In the absence of the same, on a perusal of such documents both the courts have rightly held that they have been concocted for the purpose of the case by the appellant. Apart from that there is no necessity for the landlady to issue such receipts when she has entered into a settlement on 15.6.2004 in the Lok Adalat in the CRP.
15. So also, the electricity consumption card and the membership card from the Motor Spare Parts Iron Merchant Association are all after filing of the Petition under Section 47(1) CPC to dismiss the
E.P. and they cannot be relied on. Further as against the dismissal of the said E.A.3121/2004, no appeal or revision has been filed by the appellant. Admittedly an Advocate Commissioner was also appointed who on his first visit found the name board as M.A.Peer Mohammed and Sons. But on the next day the appellant has changed the name board and therefore, the appellant is not entitled to take shelter on the ground that the suit property and the business therein is being run under the name and style of Uduman Auto Spares.
16. For the foregoing reasons, I am of the considered view that this appeal is liable to be dismissed as no question of law, much less substntial question of law arise and accordingly the same is dismissed confirming the findings of the authorities below. Consequently, connected MP.No:1 of 2006 is also dismissed. No costs.
17. As regards M.P.No:2 of 2006 for impleading the landlady as the second respondent, the same is dismissed as unnecessary since she is not a necessary and proper party to decide the issue involved in this appeal. At request 3 months time is granted for eviction.