BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/09/2006 CORAM: THE HONOURABLE MR.JUSTICE J.A.K.SAMPATHKUMAR S.A.No.760 of 1995 H.M.C.Ahmed Mubarak ... Appellant Vs Mahaboob Bibi ... Respondent Prayer Second appeal filed under Section 100 Civil Procedure Code, against the decree and judgment dated 17.12.1993 in A.S.No.26 of 1993 on the file of the Principal Subordinate Court, Madurai, reversing the decree and judgment dated 23.09.1992 passed in O.S.No.853 of 1985 by the Principal District Munsif, Madurai. !For Appellant ... Mr.P.R.Raman ^For Respondent ... No appearance. :JUDGMENT
This second appeal is filed against the reversal judgment dated 17.12.1993
in A.S.No.26 of 1993 on the file of the Principal Subordinate Court, Madurai, in
and by the learned Sub Judge allowed the appeal and reversed the judgment dated
23.09.1992 in O.S.No.853 of 1985 on the file of the Principal District Munsif,
Madurai, in decreeing the suit.
2. For convenience, the parties are referred as arrayed in the suit.
The brief facts of the case are as follows:
3. The suit property originally stands in the name of Mohammad Ismai.
After his death, the suit property devolved upon his wife Suleka Bibi, who sold
the suit property to one Abdul Kapoor Sahib in the year 1946. Subsequently, the
suit property was purchased by the plaintiff for a valuable consideration by a
registered sale deed dated 04.10.1966 from the said Abdul Kapoor Sahib. The
defendant occupied the building as a tenant for a monthly rent of Rs.100/-. The
defendant ought to have given the monthly rent from June 1982 to May 1985 and
the arrears come to Rs.3,600/-. The defendant has not paid the same,
necessitated the plaintiff to issue a lawyer’s notice calling upon the defendant
to vacate the building and hand over it to the plaintiff for which the defendant
refused. Hence, the suit.
The written statement of the defendant reads as follows:
4. The vendor of the plaintiff has no valid title to the suit property.
The defendant is the owner of the suit property and she has been in possession
and enjoyment of the same with her family for more than 33 years. She has been
paying the tax regularly. The defendant is not a tenant at any point of time
under anyone. She was not let into the possession by the plaintiff. There is
no merit in the suit. The defendant has prescribed the title to the suit
property by adverse possession also. The suit is barred by limitation and the
claim is without any basis. Therefore, the suit is liable to be dismissed.
5. One, Mr.Hajee Abdul Kani, was examined as P.W.1. Exs.A.1 to A.13 were
marked on the side of the plaintiff. One, Mr.Goush Basha was examined as D.W.1.
Exs.B.1 to B.17 were marked on the side of the defendant to disprove the claim
of the plaintiff.
6. The lower Court after analysing the evidence in depth, found that the
plaintiff is entitled to suit claim and accordingly decreed the suit.
7. Against which, the defendant filed an appeal in A.S.No.26 of 1993 on
the file of the Principal Subordinate Court, Madurai and the same was allowed on
17.12.1993, while reversing the finding of the lower Court.
8. The present second appeal is filed by the plaintiff against such
finding.
9. Heard Mr.P.R.Raman, learned Counsel for the appellant and no one
appeared on behalf of the respondent.
10. Upon hearing the argument of the learned counsel for the appellant,
the points for determination in this second appeal are as follows:
(i) Whether the relationship of landlord and tenant existing between the
plaintiff and the defendant?
(ii) Whether the civil Court jurisdiction is in the suit for redemption?
(iii) Whether the suit is barred by limitation?
11. Admittedly, the suit property was originally owned and possessed by
Mohammad Ismail and there is no dispute regarding this fact. The plaintiff
claims right over the suit property in pursuance of the sale deed in his favour
executed by one Abdul Kapoor Sahib on 04.10.1966. The said sale deed was marked
as A.13. It is submitted that after the purchase of the suit property, the
plaintiff filed a petition for ejectment of the defendant before the rent
control forum, claiming that the defendant is a tenant, subsequently, the same
was withdrawn. Ex.B.6 is the copy of the said petition in H.R.C.No.268 of 1970.
The said case was dismissed on 15.06.1970. The defendant denies the tenancy
right of the plaintiff. The defendant claims absolute right over the suit
property. After the dismissal of the ejectment petition on 15.06.1970, as per
Ex.B.6, the present suit is filed only on 10.06.1985.
12. Even now, the plaintiff filed this suit for ejectment, declaring the
defendant as tenant. If that being the case, the civil Court has no
jurisdiction to entertain the same. The plaintiff has not stated anything about
any exemption under the Rent Control Act for filing the suit for ejectment
against the defendant. So, I am of the view that the plaintiff has no
jurisdiction before the civil Court. In fact, the defendant denied the title of
the plaintiff. Therefore, the plaintiff ought to have approached this Court for
declaration of title and possession in stead of claiming possession of the suit
property on the ground of tenancy right. It is not the case of the plaintiff
that the Rent Control Act is not applicable to the case where the building is
situated. Therefore, the present suit for ejectment before the civil Court is
not valid in law, in view of the special enactment of the Rent Control Act,
prescribing Rent Court jurisdiction.
13. Further as stated above, the present suit filed only on 10.06.1985
after withdrawal of H.R.C.No.268 of 1970 as per Ex.B.6, dated 15.06.1970. It is
not the case of the plaintiff that there is a dealing between the defendant and
the plaintiff between 1982 to 1985 in which he admits the tenancy and continued
to be the tenant in respect of the suit property. Even otherwise, there is no
averments in the plaint that there was a dealing between the plaintiff and the
defendant during 15.06.1970 to 10.061985. In view of the earlier litigation, it
is proved beyond doubt that the defendant has been living in the suit property
claiming independent right over the same with the knowledge of the plaintiff for
more than fifteen years. The lower appellate Court has also dealt with this
point and rightly held that the plaintiff is not entitled to suit claim and
accordingly, allowed the appeal.
14. I do not find any error or illegality in the finding of the lower
appellate Court and the finding of the lower appellate Court does not require
any interference. Hence, I answered this point against the plaintiff.
15. In the result, this second appeal fails and the same is dismissed.
Parties are directed to bear their respective costs.
rsb
To
1. The Principal Subordinate Court, Madurai.
2. The Principal District Munsif, Madurai.