IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2009 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.326 of 2003 & C.M.P.No.239 of 2009 Meganathan .. Appellant Vs. Subbiah Gounder .. Respondent Second Appeal against the judgment and decree dated 28.10.2002 in A.S.No.31 of 1999 on the file of the Subordinate Court, Udumalpet, against the judgment and decree dated 8.4.1999 in O.S.No.226 of 1993 on the file of the District Munsif Court, Udumalpet. For appellant : Mr.V.Nicholas For respondent : Mr.K.Kalyanasundaram JUDGMENT
The Second Appeal is filed by the appellant-defendant, against the judgment and decree dated 28.10.2002 in A.S.No.31 of 1999 on the file of the Subordinate Court, Udumalpet, confirming the judgment and decree dated 8.4.1999 in O.S.No.226 of 1993 on the file of the District Munsif Court, Udumalpet.
2. The averments in the plaint are as follows:
The suit property absolutely belongs to the plaintiff. He leased out the property to the defendant on 1.1.1990 on a monthly rent of Rs.250/-. The rent was payable on the first day of every succeeding month. The defendant used to pay the rent to the plaintiff and obtain receipt from him. The lease expired on 31.12.1990. The defendant has been continuing as tenant holding over, under the same terms and conditions. The defendant has paid advance of Rs.500/- on 1.1.1990 and the same is returnable to the defendant after deducting dues if any payable at the time of delivery of vacant possession of the suit property by the defendant. The defendant has paid the rent till 1.6.1992. For the tenancy month of July 1992 and subsequent months, the defendant has wilfully defaulted to pay the rent. The total arrears of rent comes to Rs.2,000/- till January 1993. Inspite of repeated demands made by the plaintiff, the defendant had not paid the arrears of rent. So, the plaintiff has been demanding the defendant to handover the possession. But he was purposely evading the same. Hence, he issued notice dated 10.1.1993 terminating the tenancy and demanded vacant possession of the suit property on 1.2.1993. He did not vacate the premises. But gave a reply notice with false allegations. The defendant is in wrongful occupation of the suit property. Hence, the plaintiff is entitled for damages of Rs.300/- p.m. from 1.2.1993 for use and occupation until delivery of possession. Since the defendant was denying title to the property, he was constrained to file the suit for declaration that the suit property absolutely belongs to the plaintiff and for recovery of possession and damages from 1.6.1992 till 31.1.1993 at the rate of Rs.250/- p.m., totalling Rs.2,000/- and demanded future damages as Rs.300/- p.m. from 1.2.1993 till delivery and prayed for a decree.
3. The gist and essence of the written statement filed by the defendant, are as follows:
The plaintiff is not having any property abutting Highways. He is also not having any property abutting the Hospital Road. He has encroached upon the Government poramboke land and he is enjoying the same. The defendant also encroached upon the Government poramboke land and on the west of the suit property, on the south-north 50 feet, he constructed a brick tile house and enjoying the same and he is running a tea shop in that place from 1980 onwards. He also paid professional tax and obtained licence from the Panchayat Union. Since the place was not sufficient, he has taken 10 feet of the plaintiff’s property for his kitchen purpose and at that time, he has paid Rs.5,000/- to the plaintiff. There was an agreement that the said Rs.5,000/- paid to the plaintiff be repaid at the time of vacating the premises. There is no interest for Rs.5,000/- and no rent for the place. The defendant applied for electricity connection and water connection, but the authorities refused to give the connection and then, gave the connection only for the plaintiff’s property. The defendant spent Rs.2,500/- for obtaining electricity service connection and Rs.3,500/- for water connection. The entire suit property is not belonging to the plaintiff. To grab the property, the plaintiff is demanding Rs.250/- p.m. from 1.1.90 and there is no tenancy agreement. It is also false that the defendant has paid Rs.500/- as advance. The defendant has paid only Rs.5,000/- to the plaintiff and that factum is known to the Lineman Perumal, Swaminatha Gounder and Swamiappa Gounder. The defendant is always ready to handover the possession of 10 feet site as soon as he receives Rs.5,000/- from the plaintiff. So, the defendant is not liable to pay the damages for use and occupation. He is also not liable to pay future damages also. He prayed for dismissal of the suit.
4. The trial Court (District Munsif Court, Udumalpet) has framed four issues and considering the oral evidence of P.W.1, P.W.2, D.Ws.1 to 3 and Exs.A-1 to A-11 and B-1 to B-14, came to the conclusion that the plaintiff is the owner of the property and the plaintiff is entitled for recovery of possession and in respect of past and future damages, the same can be decided under Order 20 Rule 12 C.P.C. Against that, the defendant has preferred appeal in A.S.No.31 of 1999 on the file of the Subordinate Court, Udumalpet. The learned Subordinate Judge, Udumalpet, after framing one point for consideration, concurred with the findings of the trial Court and dismissed the appeal. Against that, the present Second Appeal has been preferred by the defendant.
5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
“(i) Whether the burden is on the plaintiff to prove the extent of the property alleged to have been leased out to the defendant and that the plaintiff having failed to establish the same whether the Courts below are correct in granting the relief in respect of the entire property?
(ii) Even there is weakness in the case of the defendant, whether the Courts below are correct in allowing the plaintiff to take advantage of such weakness in his favour?”
Substantial questions of law-(i) and (ii):
6. The respondent as plaintiff filed the suit for declaration of title, stating that he is the owner of the property as per Ex.A-1 sale deed and the appellant-defendant is the tenant in the suit property. Since he has not paid rent, he has issued notice terminating tenancy. He filed the suit for declaration of title and recovery of possession, past profits and future damages at Rs.300/- p.m.
7. The appellant-defendant resisted the suit that there is no tenancy arrangement between the plaintiff and the defendant and the entire suit property does not belong to the respondent-plaintiff. At the time, since the appellant-defendant wanted 10 feet of the plaintiff’s property for expansion of his business for putting up the kitchen, the defendant paid Rs.5,000/- and there was an understanding that no rent be paid for the property and at the time of return of Rs.5,000/-, the defendant is liable to vacate the premises and prayed for dismissal of the suit.
8. The trial Court, after framing necessary issues, considering the oral and documentary evidence, decreed the suit for declaration of title and recovery of possession and as far as past and future profits/damages, it directed to work out the remedy under Order 20 Rule 12 CPC. Against that, the appellant-defendant preferred appeal. The first appellate Court also concurred with the findings of the trial Court and dismissed the appeal. Against that, the present Second Appeal has been filed by the appellant-defendant.
9. Learned counsel for the appellant-defendant would contend that it is true that the plaintiff is not the owner of the entire suit property and he is the owner of only 10 feet and the vacant site has been taken possession by the appellant-defendant after paying Rs.5,000/-, stating that the amount will not carry interest and so, the appellant is not liable to pay the rent for the site. Whenever the respondent-plaintiff repays Rs.5,000/-, he is ready to handover the vacant possession. These facts have been stated in paragraphs 6 and 7 of the written statement. The defendant has clearly mentioned that there is no tenancy arrangement. Even today, the defendant is ready to vacate the premises as soon as the amount of Rs.5,000/- is returned by the respondent-plaintiff. Hence, he prayed for allowing the Second Appeal.
10. Learned counsel for the respondent-plaintiff would contend that as per Ex.A-1, the respondent-plaintiff has purchased the property and patta also was given in his name as per Ex.A-2. He is the owner of the suit property. The trial Court, in paragraph 9 of the judgment, considered all the aspects in proper perspective and came to the correct conclusion. Learned counsel for the respondent-plaintiff further submits that since both the Courts below have concurred with the findings, there is no need for this Court under Section 100 C.P.C. to re-appreciate the oral and documentary evidence and to substantiate the same, he relied upon the decision of the Supreme Court reported in 2008 (1) C.T.C. 446 (Krishnan Vs. Backiam) and prayed for dismissal of the Second Appeal.
11. It is true that as per Ex.A-1, the respondent-plaintiff has purchased the suit property in east-west 30 cubit and south-north 20 cubit. Patta also has been issued in his name as per Ex.A-2. So, the trial Court and the first appellate Court have come to the correct conclusion that the suit property belongs to the respondent-plaintiff.
12. The main issue is as to whether there is tenancy relationship between the appellant and the respondent? In the plaint, the respondent-plaintiff has pleaded that there is a tenancy agreement, that Rs.500/- has been paid as advance, that the monthly rent has been fixed at Rs.250/- and the defendant paid rent upto 1.6.1992 and after that, he has not paid that amount. In paragraphs 4 to 6 of the written statement, the defendant has pleaded that there is no tenancy agreement. But at the time of taking the property, he has paid Rs.5,000/- with an agreement that the amount be repaid without interest on the date when the appellant-defendant handovers the possession. To prove the same, the appellant-defendant examined one Swaminathan as D.W.2. D.W.2 in his evidence, in chief examination, has corroborated the evidence of D.W.1. While considering his cross-examination, it is seen that he has fairly conceded that he is not residing at Jallipatti where the suit property is situated. He also clearly conceded that himself and the appellant-defendant’s father were working in the same Mill and they were having relationship for the past 25 years. He further stated that from 1980 onwards, the defendant was doing the shop business. He has further stated that the respondent-plaintiff was refusing to give receipt for the amount paid. A suggestion was posed that he is the person interested with the defendant and he is giving false evidence, which has been denied by him. Even though the appellant-defendant has mentioned in his written statement, as per the evidence of D.W.2, it is known fact that D.W.2 and D.W.1’s father were having relationship for the past 25 years and so, he has given the evidence on behalf of the defendant-D.W.1. So, the evidence of D.W.2 is not trustworthy. The Lineman and others were not examined before this Court.
13. Per contra, the respondent-plaintiff examined P.W.2, one Kanagaraj to prove that before the appellant, P.W.2 was the tenant under him.
14. In such circumstances, while considering the evidence of P.W.1, P.W.2, D.W.1 and D.W.2, the trial Court and the first appellate Court came to the conclusion that there was a tenancy agreement between the plaintiff and the defendant.
15. The respondent-plaintiff has marked Exs.A-4 and A-7 house tax receipts. The water connection also stands in his name. Exs.A-5,6,8 are the water tax payment receipts. The appellant-defendant has filed Ex.B-1 stating that when he applied for service connection, at that time, the Officer has given a certificate stating he is in Government poramboke land and they will not give any connection. The genuineness of the document has been questioned and to prove that he is in possession of the Government poramboke land, and made construction there and doing tea shop business, he has not filed any ‘B’ Memo. He has not examined any revenue authority to prove that the appellant has encroached upon the Government poramboke land. In the abovesaid circumstances, it is painful to accept that the appellant has encroached upon the Government poramboke land and doing his business. In such circumstances, no relevance can be placed on Ex.B-1.
16. Admittedly, the water connection stands in the name of the respondent-plaintiff. Since the appellant-defendant is in possession, he paid water tax and Exs.B-2 and B-7 are water tax receipts. The professional tax receipt is Ex.B-5. Licence for the tea shop is Exs.B-5 and B-6. The house tax receipts are Ex.B-8, B-9, B-10 and B-11. Ex.B-12 is the official communication to the respondent-plaintiff for demanding additional security deposit for the Service Connection No.447, which is situated in the suit property.
17. It is true that the appellant-defendant is having his shop in the suit property and that the copies of family ration card-Exs.B-13 and B-14 have been marked to prove the same. D.W.3 Arumugam, Junior Assistant of the Civil Supplies Department has been examined. As already stated, the appellant-defendant is in possession and enjoyment of the property, but he denied that he is a tenant. He has stated that he was in possession of poramboke land and made construction and having his tea shop for additional accommodation and he got the suit property on payment of Rs.5,000/-. That payment of Rs.5,000/- will be repaid without interest and that the appellant is not liable to pay the rent. That factum has not been proved by the appellant-defendant. There is no evidence to prove that the appellant is in Government poramboke land, which is situated on the western side of the suit property. No ‘B’ Memo has been filed. All these things would cumulatively prove that the appellant is in possession of the suit property as a tenant and paying the rent at Rs.250/- p.m. and since he defaulted in payment of rent, notice has been issued under Ex.A-9 and reply has been received under Ex.A-11 and then only, the respondent-plaintiff has come forward with the suit.
18. The trial Court and the first appellate Court have come to the correct conclusion that the respondent-plaintiff is the owner of the suit property and he has leased out the property and so, the appellant-defendant is in possession and enjoyment of the same on rental basis and since he has not paid the rent, the plaintiff is entitled for recovery of possession. The trial Court and the first appellate Court have come to the correct conclusion that as far as the past and future profits are concerned, the same can be decided under Order 20 Rule 12 C.P.C. proceedings. I do not find any irregularity or infirmity in the impugned judgment and decree of the trial Court and the first appellate Court and I concur with the findings of both the Courts below.
19. In the decision of the Supreme Court reported in 2008 (1) CTC 446 (Krishnan Vs. Backiam), the Supreme Court held as follows:
“11. It may be mentioned that the First Appellate Court under Section 96, C.P.C. is the last Court of facts. The High Court in Second Appeal under Section 100 C.P.C. cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96, C.P.C. No doubt the findings of fact of the First Appellate Court can be challenged in Second Appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the First Appellate Court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the First Appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court.
12. A perusal of the judgment of the High Court shows that the High Court has practically acted as a First Appellate Court and has re-appreciated the findings of fact of the learned Subordinate Judge which it could not validly do in exercise of its jurisdiction under Section 100, C.P.C.”
20. Since the judgment and decree of the trial Court and the first appellate Court do not suffer from any material irregularity or perversity, as per Section 100 C.P.C., in the Second Appeal, there is no need to interfere with the findings of facts recorded by both the Courts below.
21. In fine, the Second Appeal is dismissed. No costs. C.M.P. is closed.
19.12.2009
Index: Yes
Internet: Yes
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To
1. Subordinate Court, Udumalpet.
2. District Munsif Court, Udumalpet.
3. The Section Officer, V.R. Section, High Court, Madras.
R.MALA,J
cs
Judgment in
S.A.No.326 of 2003
19.12.2009
