BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/11/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.716 of 2007 Jeyanthi S.Thampi ... Appellant Vs. P.Selvarajan ... Respondent PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 09.06.2004 passed by the learned District Judge, Nagercoil, made in A.S.No.112 of 2003, confirming the judgment and decree of the Subordinate Judge, Padmanabhapuram, dated 24.01.2003 made in O.S.No.43 of 1998. !For Appellant ... Mr.P.Subramaniam ^For Respondent ... Mr.R.Vijayakumar :JUDGMENT
The defendant in the original suit is the appellant herein. The
respondent herein had filed the original suit on the file of the Subordinate
Judge, Padmanabhapuram for the relief of specific performance directing the
appellant/defendant to execute a sale deed after receiving the balance
consideration of Rs.18,750/- based on an alleged agreement for sale between the
respondent/plaintiff and Sethumadhavan Thampi, the husband of the
appellant/defendant.
2. The respondent had filed the original suit making the following
averments:
(a) One Thangasamy S/o.Kuttikon was the original lessee in respect of the
suit property who spent a sum of Rs.10,000/- towards maintenance of the building
and another sum of Rs.10,000/- towards construction of a counter and purchase of
furniture. On 13.03.1992 the said original lessee Thangasamy received the said
amount of Rs.20,000/- from the respondent/plaintiff and transferred his
leasehold rights in favour of the respondent/plaintiff. Apart from the furniture
provided by the erstwhile lessee Thangasamy, the plaintiff had also placed
furniture worth Rs.5,000/- in the suit building making the total value of the
counter and furniture Rs.15,000/. Thereafter, the lease was attorned by
Sethumadhavan Thampi in favour of the respondent/plaintiff on 06.04.1992 and the
rent was increased from Rs.30/- to Rs.45/-. A sum of Rs.2,500/- was also
received as a premium by Sethumadhavan Thampi from the respondent/plaintiff.
(b) On 06.04.1992 itself, Sethumadhavan Thampi executed a consent letter
Ex.A.3 undertaking to adjust Rs.12,500/- being the aggregate sum of the amounts
spent for maintenance of the building and the amount received as premium towards
the sale consideration, when he would sell the suit property to the
respondent/plaintiff. Similarly on 05.05.1992 the said Sethumadhavan Thampi
orally agreed to sell the suit property to the respondent/plaintiff for a sum of
Rs.31,250/-, out of which the above said sum of Rs.12,500/- was agreed to be
deducted. Sethumadhavan Thambi expired on 14.05.1992 and thereafter, in a
partition that took place in the family on 06.07.1994, the suit property was
allotted to the share of the appellant/defendant. On the same date, the
plaintiff informed the appellant/defendant of the sale agreement and the
appellant/defendant also agreed to receive the balance sale consideration and
execute the sale deed. However, without executing the sale deed as undertaken,
the respondent/plaintiff was forcibly evicted from the suit property. The value
of the counter constructed in the suit property and the furniture placed in the
suit property were assessed by the respondent/plaintiff at Rs.10,000/- and
Rs.5,000/- respectively. The said counter and the furniture worth Rs.15,000/-,
according to the plaintiff, were appropriated by the appellant/defendant and
hence, the appellant/defendant was liable to return the said amount of
Rs.15,000/- with an interest calculated at the rate of 12% per annum from
15.01.1997, the date on which the respondent/plaintiff was forcibly evicted.
(c) The respondent/plaintiff had also applied for a new phone connection.
Since he was evicted forcibly on 15.01.1997, he could not get the phone
connection causing inconvenience to his business as a life insurance agent. The
loss occasioned to the respondent/plaintiff in this regard was assessed by the
respondent/plaintiff at Rs.5,000/-. Therefore, the respondent/plaintiff had
prayed for a decree for specific performance directing the appellant/defendant
to execute a sale deed after receiving the balance consideration of Rs.18,750/-
and in the alternative for a decree directing payment of a sum of Rs.32,500/-
(Rs.20,000/- as damages and Rs.12,500/- being the amount agreed to be held as
advance). Interest at the rate of 12% per annum for the said amount was also
claimed.
3. The suit was resisted by the appellant/defendant denying all the
plaint averments. However, the appellant/defendant had admitted that the
respondent/plaintiff was a tenant in respect of the suit property on a monthly
rent of Rs.45/-. On the other hand, it was contended by the appellant/defendant
that the respondent/plaintiff was not the tenant in actual possession; that he
had sublet the suit property to one Subramanian and it was the said Subramanian
who directly paid the rent to the appellant/defendant but obtained the receipts
in the name of the respondent/plaintiff. However, the sum of Rs.20,000/- spent
by the former lessee Thangasamy and the payment of the said amount to the said
Thangasamy by the respondent/plaintiff was denied. The claim of the
respondent/plaintiff for compensation on the ground that he incurred loss as he
could not get the phone connection was also disputed. The oral agreement of sale
set up by the respondent/plaintiff was also disputed.
4. After trial, on an appreciation of evidence, the trial Court
negatived the case of the respondent/plaintiff for specific performance of
contract based on the alleged oral agreement dated 13.03.1992 holding that the
said agreement could not be true. However, the alternative relief sought for in
the plaint was allowed in part and a decree was granted in favour of the
respondent/plaintiff directing the appellant/defendant to pay a sum of
Rs.20,000/- together with an interest at the rate of 6% per annum from the date
of plaint till realisation. The trial Court also held that the
respondent/plaintiff was successful in proving that Thangasamy spent a total sum
of Rs.20,000/- (Rs.10,000/- for maintenance of the building and Rs.10,000/- for
constructing a counter and providing furniture in the suit property); that his
leasehold right was transferred to the respondent/plaintiff on his making a
payment of Rs.20,000/- to Thangasamy and that thereafter, the
appellant/defendant agreed to adjust the sum of Rs.10,000/- spent by Thangasamy
towards maintenance of the building. Ex.A.1 is the document executed by the said
Thangasamy on 13.03.1992. Though the said document would not be admissible as
evidence to prove the transfer of leasehold right in respect of the immovable
property, the same could be admitted for a collateral purpose, namely to show
that the respondent/plaintiff paid a sum of Rs.20,000/- to the said Thangasamy.
Therefore, the trial Court came to the conclusion that the respondent/plaintiff
was entitled to the return of the said amount together with an interest from the
date of plaint as indicated above. As against the said judgment and decree, the
appellant/defendant filed an appeal in A.S.No.112 of 2003 on the file of the
District Judge, Kanyakumari District at Nagercoil in which the
respondent/plaintiff filed a cross-objection as against the disallowed portion
of the suit claim. Both the appeal and the Cross-objection were dismissed
confirming the judgment and decree of the trial Court in all respects by the
judgment and decree of the lower appellate Court dated 09.06.2004. Hence the
present second appeal has been filed in this Court by the appellant/defendant.
5. Heard the submissions made by Mr.P.Subramaniam, learned counsel
appearing for the appellant and also by Mr.R.Vijayakumar, learned counsel
appearing for the respondent. The materials available on record in the form of
typed-set of papers including the judgments of the lower Courts have been
perused.
6. Both the Courts below have concurrently held that the oral
agreement set up by the respondent/plaintiff, based on which the claim for
specific performance of contract was made, was not true. The concurrent findings
of the Courts below in this regard are only findings of fact. The said finding
recorded by the Courts below was against the respondent/plaintiff. The person
aggrieved against the said finding, namely the respondent/plaintiff has not
chosen to file any second appeal against the dismissal of his cross-objection.
The challenge made in the present appeal is confined to the decree directing the
appellant/defendant to pay a sum of Rs.20,000/- with interest. On a proper
appreciation of evidence, the trial Court has come to the conclusion that the
respondent/plaintiff was able to prove his case that one Thangasamy was the
original lessee who spent a sum of Rs.20,000/- towards the maintenance of the
building, for constructing a counter and for providing furniture and that the
said Thangasamy, after receiving the said amount from the respondent/plaintiff,
allowed the respondent/plaintiff to occupy the suit property as a tenant. The
trial Court has also come to the conclusion that there was attornment of tenancy
by the husband of the respondent/plaintiff in favour of the appellant/defendant.
It is also quite obvious from the written statement of the appellant/defendant
that though there was an attempt to deny that the respondent/plaintiff was a
tenant in respect of the suit property, there is a clear admission that the
respondent/plaintiff was the direct tenant and one Subramanian was the sub-
tenant under him. Regarding the amounts spent by the erstwhile tenant Thangasamy
and the payment of the said amount by the respondent/plaintiff to the said
Thangasamy, the trial Court has meticulously appraised the evidence adduced on
both sides and came to the conclusion that the respondent’s/plaintiff’s case in
this regard was true and was substantiated. It was also held that the fact that
the tenancy was attorned in favour of the respondent/plaintiff would also be a
circumstance to prove the case of the respondent/plaintiff that the payment of
Rs.20,000/- to the erstwhile lessee Thangasamy was very much known to the
husband of the appellant/defendant. On a proper appreciation of evidence, the
trial Court has come to the conclusion that the appellant/defendant being the
owner of the property was liable to pay a sum of Rs.10,000/- spent by the tenant
for effecting repairs and maintaining the building in the suit property.
7. The trial Court has also rightly held that the
respondent/plaintiff established the value of the counter constructed in the
suit building and the furniture placed therein was Rs.10,000/- and that the
respondent/plaintiff was forcibly evicted and driven out from the suit property
even without allowing him to remove the said counter and furniture. As such, the
finding of the trial Court that the appellant/defendant was liable to pay a sum
of Rs.10,000/- towards the value of the counter and furniture cannot be
assailed as it is supported by evidence. So also the finding of the trial Court
that the appellant/defendant is liable to pay a sum of Rs.10,000/- spent towards
the repair and maintenance of the suit property cannot be assailed as it is
supported by evidence. The lower appellate Court, being the highest Court of
appeal on facts, has also reappraised the evidence and has correctly concurred
with the said findings of the trial Court. The said finding of the trial Court
cannot be termed as one based on no legal evidence or a finding which could not
have been arrived at reasonably based on the evidence adduced on either side. To
put it in short, the said finding cannot be termed a perverse one. In a second
appeal findings of fact recorded by the Courts below cannot be interfered with
unless the same is found to be perverse, in which case the same will give rise
to a substantial question of law.
8. It should also be noted that the Courts below have rightly
rejected the claim of the respondent/plaintiff that the alleged payment of
premium of Rs.2,500/- could not be believed. The claim of Rs.5,000/- as damages
for the alleged loss caused to the respondent/plaintiff by his inability to get
a telephone connection as he was forcibly evicted from the suit property was
also rightly rejected by the Courts below. The plea made by the plaintiff in the
plaint that, apart from the furniture provided by the erstwhile lessee
Thangasamy in the suit property, the plaintiff had also put furniture worth
Rs.5,000/- in the suit property was rightly negatived by the Courts below. That
is why the Courts below have chosen to decree the suit in respect of the
alternative prayer for the recovery of Rs.20,000/- alone together with an
interest calculated at the rate of 6% per annum from the date of plaint till
realisation. In disallowing interest till the date of filing of the suit, the
Courts below have proved to be just and reasonable. Hence the concurrent
findings of both the Courts below that the respondent/plaintiff is entitled to
recover a sum of Rs.20,000/- together with an interest for the said amount from
the date of plaint till realisation at the rate of 6% per annum cannot be
interfered with in this second appeal. No substantial question of law is proved
to have involved in this second appeal. All the questions projected in
memorandum of appeal as substantial questions of law are not, in fact,
substantial questions of law involved in this case.
9. For all the reasons stated above, this Court comes to the
conclusion that there is no merit in the second appeal and the same deserves to
be dismissed. Accordingly, the Second Appeal is dismissed. There shall be no
order as to payment of costs, as the second appeal is dismissed at the stage of
admission itself.
SML
To
1.The District Judge,
Nagercoil.
2.The Subordinate Judge,
Padmanabhapuram.