JUDGMENT
Abdul Hadi, J.
1. The defendants in O.S. No. 33 of 1984 on the file of the Subordinate Judge’s Court, Ramanathapuram, are the appellants in this second appeal against the concurrent decree in favour of respondent for possession of the suit property and for arrears of rent to the extent of Rs. 750.
2. The case of the respondent-plaintiff is that he is the court-auction purchaser of the suit property pursuant to the sale certificate Ex.A-1 dated 30.10.1971. Further, according to him, he got possession of the suit property through court on 29.11.1971 as per Ex.A-2 and on 1.1.1972 the same property was let out to the defendants, who are none other than the daughters, of one Seeni Mohammed Rowther, pursuant to the decree against whom, the above said court auction took place. The further case of the plaintiff is that the said defendants- tenants paid monthly rent of Rs. 25 upto the end of April, 1974, but they did not pay subsequently that hence the suit was laid on 13.3.1984 and that the abovesaid arrears of rent to the extent of Rs. 750 is claimed only for 34 months, that is from 1.1.1981 to 31.10.1983. (Actually, for the said 34 months, the arrears of rent come to Rs. 850, but only 750 is claimed). In the plaint, it is also stated that the arrears of rent for the period from 1.5.1974 to 30.11.1980 has become time barred and hence it is not claimed.
3. The further plea in the plaint is that the abovesaid tenancy was terminated by (Ex.A-3) notice dated 25.6.1980 demanding vacant possession on 1.8.1980 but that the defendants did not receive the said notice and it was refused by them on 8.7.1980. Ex. A-4 is the returned postal cover containing the notice.
4. The defendants, in the written statement, denied the abovesaid tenancy pleaded by the plaintiff and claimed title to the suit property under a gift deed of hibba and they also pleaded title by adverse possession.
5. Thus, suit is for ejectment, based on tenancy, and on termination of it by notice; and it has been valued for court-fees and jurisdiction under Section 43 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 (hereinafter referred to as ‘the Act’).
6. But, the trial court has not approached the question as a pure and simple ejectment suit based on tenancy. But, it has treated it as a title suit and has even permitted issues like “whether the plaintiff has title to the suit property”, “whether the defendants have title to the suit property” and “whether they (defendants) have perfected title by adverse possession.” The trial court has given finding on such issues relating to title in favour of the plaintiff. No doubt, it has also held that it has been proved that there was a tenancy agreement between the plaintiff and defendants. But, strangely it has not even raised an issue as to whether the alleged tenancy has been terminated, or was any finding given in that regard and yet it has decreed the suit as prayed for.
7. The lower appellate court, in the appeal filed by the defendants, has also not approached the case as it ought to have done. It has not even set out the points for determination. However, in effect, it hold that the plaintiff has title to the suit property pursuant to the abovesaid court auction purchase and the defendants have not proved their title. Thereafter, without any discussion whatever, the lower appellate court comes to the conclusion that the defendants have taken the suit property on lease and on that basis, the plaintiff has right to obtain possession from the defendants. Thus, the lower appellate court also has not gone into the question whether the tenancy has been properly terminated and yet strangely the lower appellate court has confirmed the decree of the trial court.
8. Even before considering the arguments of learned counsel for appellant, it was clear to me on going through the judgments of both the courts below that the whole approach made by both the courts below and the way in which, they have dealt with the case, were thoroughly unsatisfactory. Hence, when the appeal came up for admission, I felt that I should order notice of motion and dispose of the appeal quickly. Accordingly, pursuant to the notice of motion ordered, the respondent- plaintiff has entered appearance and I posed the question to the learned counsel for the respondent, how the courts below could go into the question of respective claims of title by the rival parties in a suit valued, and court fee paid, under Section 43 of the Act, which only deals with suits between landlord and tenant. Learned counsel for the appellant also in this regard drew my attention to Soura Beeviammal v. Ameena Animal 94 L.W. 502, where the following significant observation is found, relying on earlier Division Bench Judgment of this Court
In Balasidhantam v. Perumal Chetti (1994)1 L.W. 641, a Division-Bench of this Court, consisting of Seshagiri Aiyar and Kumaraswami Sastriar, JJ. held that in a suit for ejectment and arrears of rent, the suit having been valued upon one year’s rent only, the court will not go into the question of title. When the plaintiff files the suit expressly proceeding on the basis that the defendant is a tenant under him and wants the relief of possession alleging that the tenancy has been validly determined and pays the court-fee on that basis, the plaintiff could get the relief of possession only if he proves the tenancy. If on a plea by the defendant a question of title arises, it can be gone into only for the purpose of determining as to whether the relationship of tenancy subsisted between the plaintiff and the defendant. If it is to be found that the relationship of tenancy between the plaintiff and the defendant does not subsist, the plaintiff must fail in the suit as instituted by him and the suit cannot be converted into a suit for declaration of title and for recovery of possession on the basis of title.
9. To the abovesaid question posed by me, learned counsel for the respondent agreed that the court cannot go into such a question regarding title in a suit under Section 43 of the Act. (except as stated in the abovesaid decision). But, however, contended that the other factual finding regarding factum of tenancy cannot be disturbed in this second appeal under Section 100, C.P.C. since according to him, the case does not involve any substantial question of law. But, learned counsel for the appellants, in this regard, drew my attention to the ground taken by him in the Memorandum of Grounds in this second appeal that the finding of the court below regarding the tenancy is a perverse one. He also submitted that the abovesaid finding of fact is vitiated by non-consideration of relevant evidence and also by the abovesaid erroneous, approach made by the courts below to the matter. In this connection, he also relied on Jagdish Singh v. Nathu Singh , wherein it has been held thus:
As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
He also relied on Dilbagrai Punjabi v. Shard Chandra , wherein it has been held thus:
The High Court was right in pointing out that the courts below had seriously erred in not considering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under Section 100, Civil P.C. has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refused to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding.
10. There is great force in this argument of learned counsel for the appellant since I find that in the present case, both the court have not at all considered the relevant evidence in coming to the conclusion as to whether there was landlord- tenant relationship between the plaintiff and defendants. I have already pointed out that in so far as the Judgment of the Lower appellate court, there is absolutely no discussion regarding this question, It is indeed very much strange that the lower appellate court has come to the conclusion that the defendants have become tenants of the suit property of the plaintiff, without any discussion whatsoever in that regard. The entire discussion of the lower appellate court is only in paragraph 5 of its judgment and there, strangely it only deals with above said title question of the rival parties and finally, without any discussion, just mentions thus:
Further, it has also failed to note that even if there could be a conclusion as arrived at regarding factum of tenancy, decree for possession cannot be granted unless the tenancy is found to have been duly terminated. The lower appellate court does not even whisper about this aspect of termination of tenancy and yet it strangely affirms the possession decree granted by the court below.
11. Then coming to the judgment of the trial court also, I must first of all point out the very strange observations made by the learned trial Judge, despite the fact that he refers to Section 43 of the Act. Before making further comments on his judgment, it is better I extract some portions of there, which are as follows:
It is clear from what has been extracted above that the abovesaid conclusion reached is based only on the learned Judge’s conjecture, that the plaintiff can only let out to defendants. Further, the conclusion reached relating to tenancy is not at all based on the entire evidence. Admittedly, there is no documentary proof at all regarding the alleged tenancy or even regarding the alleged tenancy or even regarding payment of rent for the alleged one year or so. Even regarding oral evidence, there is no acceptable independent evidence, excepting the ipso dixit of P.W.1, the plaintiff. Even regarding the said oral evidence, there is no discussion at all by the trial court regarding his evidence in cross-examination. His oral evidence in chief-examination relating to tenancy is as follows:
But, in the light of the evidence given by him in cross-examination, the tenancy cannot be believed at all. The relevant portion in the cross-examination is as follows:
In the light of the abovesaid cross-examination, no one could come to the conclusion that there was a tenancy between the plaintiff and defendants. Not only there was no written tenancy agreement between the parties, there was not even passing of receipts regarding payment of rents for the alleged one year. That apart, even though according to the plaintiff, rent was due from 1973, there was not even a written demand for many years claiming the alleged rental arrears from 1973; Nor was there any attempt to terminate the tenancy despite the alleged arrears for those several years and only in 1980, Ex.A-3 notice had been sent. Further, even thereafter no legal action has been taken till 1984 when only the present suit was filed. Taking all these into account, the utter falsity of the case of the plaintiff is so apparent that none could come to the conclusion that there was the abovesaid alleged tenancy. It must also be pointed out that the 1st defendant deposing as D.W.1, stated in Chief Examination thus:
Further, in cross examination also, what has been elicited is only the following:
12. In such a situation, the finding of both the courts below regarding the abovesaid tenancy cannot be a perverse finding. All relevant material evidence and other features of the case have not been considered at all by both the courts below and Jagdish Singh v. Nathu Singh and Dilbagrai Punjabi v. Shard Chandra would squarely apply to the present case. The decision cited by learned counsel for the respondent, viz., Parry’s (Cal) Employees Union v. M/s. Parry and Company have no application to the present facts at all. No doubt, the observation in the said case is as follows:
A perverse finding is not only against the weight of evidence but is altogether against the evidence itself. A wrong finding is not necessarily a perverse finding. A finding cannot be said to be perverse merely because it is possible to take a different view on the evidence.
[Italics supplied]
But, it is clear to me that the only view that could be taken, analysing the entire evidence in the case is that there was no tenancy as alleged by the plaintiff. There is no doubt that the finding arrived at by the courts below is perverse. Further, it must also be pointed out that the trial court also has not given any finding as to whether there was a proper termination of the tenancy (even assuming that there was a tenancy). In fact, it is indeed very unfortunate that the trial court did not even frame the important issues like “whether there existed a tenancy between the plaintiff and the defendants?” and “whether there was a valid termination of the said tenancy?”. Similar grave and patent error has been committed by the lower appellate court also. On the whole, both the courts below have exhibited their lack of rudimentary knowledge of the relevant law as to how such a simple suit for ejectment or appeal, therefrom, as the case may be, should be tried.
13. In the result, the Judgments and decrees of both the courts below are set aside and the suit is dismissed. Accordingly, the appeal is allowed with costs throughout. It is however made clear that it is open to the plaintiff to file a fresh suit against the defendants, in accordance with law, if so advised.