{"id":161640,"date":"2007-11-26T00:00:00","date_gmt":"2007-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jeyanthi-s-thampi-vs-p-selvarajan-on-26-november-2007"},"modified":"2018-01-26T11:56:24","modified_gmt":"2018-01-26T06:26:24","slug":"jeyanthi-s-thampi-vs-p-selvarajan-on-26-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jeyanthi-s-thampi-vs-p-selvarajan-on-26-november-2007","title":{"rendered":"Jeyanthi S.Thampi vs P.Selvarajan on 26 November, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Jeyanthi S.Thampi vs P.Selvarajan on 26 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 26\/11\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nS.A.(MD)No.716 of 2007\n\n\nJeyanthi S.Thampi\t\t...\tAppellant\n\n\nVs.\n\n\nP.Selvarajan\t\t\t...\tRespondent\n\n\nPRAYER\n\n\nSecond Appeal filed under Section 100 of the Code of Civil Procedure,\nagainst the judgment and decree dated 09.06.2004 passed by the learned District\nJudge, Nagercoil, made in A.S.No.112 of 2003, confirming the judgment and decree\nof the Subordinate Judge, Padmanabhapuram, dated 24.01.2003 made in O.S.No.43 of\n1998.\n\n\n!For Appellant\t\t...\t\tMr.P.Subramaniam\n\t\t\n\n^For Respondent\t\t...\t\tMr.R.Vijayakumar\n\n\n:JUDGMENT\n<\/pre>\n
\t\tThe defendant in the original suit is the appellant herein. The
\nrespondent herein had filed the original suit on the file of the Subordinate
\nJudge, Padmanabhapuram for the relief of specific performance directing the
\nappellant\/defendant to execute a sale deed after receiving the balance
\nconsideration of Rs.18,750\/- based on an alleged agreement for sale between the
\nrespondent\/plaintiff and Sethumadhavan Thampi, the husband of the
\nappellant\/defendant.\n<\/p>\n
\t\t2. The respondent had filed the original suit making the following
\naverments:\n<\/p>\n
 \t(a) One Thangasamy S\/o.Kuttikon was the original lessee in respect of the
\nsuit property who spent a sum of Rs.10,000\/- towards maintenance of the building
\nand another sum of Rs.10,000\/- towards construction of a counter and purchase of
\nfurniture. On 13.03.1992 the said original lessee Thangasamy received the said
\namount of Rs.20,000\/- from the respondent\/plaintiff and transferred his
\nleasehold rights in favour of the respondent\/plaintiff. Apart from the furniture
\nprovided by the erstwhile lessee Thangasamy, the plaintiff had also placed
\nfurniture worth Rs.5,000\/- in the suit building making the total value of the
\ncounter and furniture Rs.15,000\/. Thereafter, the lease was attorned by
\nSethumadhavan Thampi in favour of the respondent\/plaintiff on 06.04.1992 and the
\nrent was increased from Rs.30\/- to Rs.45\/-. A sum of Rs.2,500\/- was also
\nreceived as a premium by Sethumadhavan Thampi from the respondent\/plaintiff.\n<\/p>\n
\t(b) On 06.04.1992 itself, Sethumadhavan Thampi executed a consent letter
\nEx.A.3 undertaking to adjust Rs.12,500\/- being the aggregate sum of the amounts
\nspent for maintenance of the building and the amount received as premium towards
\nthe sale consideration, when he would sell the suit property to the
\nrespondent\/plaintiff. Similarly on 05.05.1992 the said Sethumadhavan Thampi
\norally agreed to sell the suit property to the respondent\/plaintiff for a sum of
\nRs.31,250\/-, out of which the above said sum of Rs.12,500\/- was agreed to be
\ndeducted. Sethumadhavan Thambi expired on 14.05.1992 and thereafter, in a
\npartition that took place in the family on 06.07.1994, the suit property was
\nallotted to the share of the appellant\/defendant. On the same date, the
\nplaintiff informed the appellant\/defendant of the sale agreement and the
\nappellant\/defendant also agreed to receive the balance sale consideration and
\nexecute the sale deed. However, without executing the sale deed as undertaken,
\nthe respondent\/plaintiff was forcibly evicted from the suit property. The value
\nof the counter constructed in the suit property and the furniture placed in the
\nsuit property were assessed by the respondent\/plaintiff at Rs.10,000\/- and
\nRs.5,000\/- respectively. The said counter and the furniture worth Rs.15,000\/-,
\naccording to the plaintiff, were appropriated by the appellant\/defendant and
\nhence, the appellant\/defendant was liable to return the said amount of
\nRs.15,000\/- with an interest calculated at the rate of 12% per annum from
\n15.01.1997, the date on which the respondent\/plaintiff was forcibly evicted.\n<\/p>\n
\t(c) The respondent\/plaintiff had also applied for a new phone connection.
\nSince he was evicted forcibly on 15.01.1997, he could not get the phone
\nconnection causing inconvenience to his business as a life insurance agent. The
\nloss occasioned to the respondent\/plaintiff in this regard was assessed by the
\nrespondent\/plaintiff at Rs.5,000\/-. Therefore, the respondent\/plaintiff had
\nprayed for a decree for specific performance directing the appellant\/defendant
\nto execute a sale deed after receiving the balance consideration of Rs.18,750\/-
\nand in the alternative for a decree directing payment of a sum of Rs.32,500\/-
\n(Rs.20,000\/- as damages and Rs.12,500\/- being the amount agreed to be held as
\nadvance). Interest at the rate of 12% per annum for the said amount was also
\nclaimed.\n<\/p>\n
\t\t3. The suit was resisted by the appellant\/defendant denying all the
\nplaint averments. However, the appellant\/defendant had admitted that the
\nrespondent\/plaintiff was a tenant in respect of the suit property on a monthly
\nrent of Rs.45\/-. On the other hand, it was contended by the appellant\/defendant
\nthat the respondent\/plaintiff was not the tenant in actual possession; that he
\nhad sublet the suit property to one Subramanian and it was the said Subramanian
\nwho directly paid the rent to the appellant\/defendant but obtained the receipts
\nin the name of the respondent\/plaintiff. However, the sum of Rs.20,000\/- spent
\nby the former lessee Thangasamy and the payment of the said amount to the said
\nThangasamy by the respondent\/plaintiff was denied. The claim of the
\nrespondent\/plaintiff for compensation on the ground that he incurred loss as he
\ncould not get the phone connection was also disputed. The oral agreement of sale
\nset up by the respondent\/plaintiff was also disputed.\n<\/p>\n
\t\t4. After trial, on an appreciation of evidence, the trial Court
\nnegatived the case of the respondent\/plaintiff for specific performance of
\ncontract based on the alleged oral agreement dated 13.03.1992 holding that the
\nsaid agreement could not be true. However, the alternative relief sought for in
\nthe plaint was allowed in part and a decree was granted in favour of the
\nrespondent\/plaintiff directing the appellant\/defendant to pay a sum of
\nRs.20,000\/- together with an interest at the rate of 6% per annum from the date
\nof plaint till realisation.  The trial Court also held that the
\nrespondent\/plaintiff was successful in proving that Thangasamy spent a total sum
\nof Rs.20,000\/- (Rs.10,000\/- for maintenance of the building and Rs.10,000\/- for
\nconstructing a counter and providing furniture in the suit property); that his
\nleasehold right was transferred to the respondent\/plaintiff on his making a
\npayment of Rs.20,000\/- to Thangasamy and that thereafter, the
\nappellant\/defendant agreed to adjust the sum of Rs.10,000\/- spent by Thangasamy
\ntowards maintenance of the building. Ex.A.1 is the document executed by the said
\nThangasamy on 13.03.1992. Though the said document would not be admissible as
\nevidence to prove the transfer of leasehold right in respect of the immovable
\nproperty, the same could be admitted for a collateral purpose, namely to show
\nthat the respondent\/plaintiff paid a sum of Rs.20,000\/- to the said Thangasamy.
\nTherefore, the trial Court came to the conclusion that the respondent\/plaintiff
\nwas entitled to the return of the said amount together with an interest from the
\ndate of plaint as indicated above.  As against the said judgment and decree, the
\nappellant\/defendant filed an appeal in A.S.No.112 of 2003 on the file of the
\nDistrict Judge, Kanyakumari District at Nagercoil in which the
\nrespondent\/plaintiff filed a cross-objection as against the disallowed portion
\nof the suit claim. Both the appeal and the Cross-objection were dismissed
\nconfirming the judgment and decree of the trial Court in all respects by the
\njudgment and decree of the lower appellate Court dated 09.06.2004. Hence the
\npresent second appeal has been filed in this Court by the appellant\/defendant.\n<\/p>\n
\t\t5. Heard the submissions made by Mr.P.Subramaniam, learned counsel
\nappearing for the appellant and also by Mr.R.Vijayakumar, learned counsel
\nappearing for the respondent. The materials available on record in the form of
\ntyped-set of papers including the judgments of the lower Courts have been
\nperused.\n<\/p>\n
\t\t6. Both the Courts below have concurrently held that the oral
\nagreement set up by the respondent\/plaintiff, based on which the claim for
\nspecific performance of contract was made, was not true. The concurrent findings
\nof the Courts below in this regard are only findings of fact. The said finding
\nrecorded by the Courts below was against the respondent\/plaintiff. The person
\naggrieved against the said finding, namely the respondent\/plaintiff has not
\nchosen to file any second appeal against the dismissal of his cross-objection.
\nThe challenge made in the present appeal is confined to the decree directing the
\nappellant\/defendant to pay a sum of Rs.20,000\/- with interest. On a proper
\nappreciation of evidence, the trial Court has come to the conclusion that the
\nrespondent\/plaintiff was able to prove his case that one Thangasamy was the
\noriginal lessee who spent a sum of Rs.20,000\/- towards the maintenance of the
\nbuilding, for constructing a counter and for providing furniture and that the
\nsaid Thangasamy, after receiving the said amount from the respondent\/plaintiff,
\nallowed the respondent\/plaintiff to occupy the suit property as a tenant. The
\ntrial Court has also come to the conclusion that there was attornment of tenancy
\nby the husband of the respondent\/plaintiff in favour of the appellant\/defendant.
\nIt is also quite obvious from the written statement of the appellant\/defendant
\nthat though there was an attempt to deny that the respondent\/plaintiff was a
\ntenant in respect of the suit property, there is a clear admission that the
\nrespondent\/plaintiff was the direct tenant and one Subramanian was the sub-
\ntenant under him. Regarding the amounts spent by the erstwhile tenant Thangasamy
\nand the payment of the said amount by the respondent\/plaintiff to the said
\nThangasamy, the trial Court has meticulously appraised the evidence adduced on
\nboth sides and came to the conclusion that the respondent’s\/plaintiff’s case in
\nthis regard was true and was substantiated. It was also held that the fact that
\nthe tenancy was attorned in favour of the respondent\/plaintiff would also be a
\ncircumstance to prove the case of the respondent\/plaintiff that the  payment of
\nRs.20,000\/- to the erstwhile lessee Thangasamy was very much known to the
\nhusband of the appellant\/defendant. On a proper appreciation of evidence, the
\ntrial Court has come to the conclusion that the appellant\/defendant being the
\nowner of the property was liable to pay a sum of Rs.10,000\/- spent by the tenant
\nfor effecting repairs and maintaining the building in the suit property.\n<\/p>\n
\t\t7. The trial Court has also rightly held that the
\nrespondent\/plaintiff established the value of the counter constructed in the
\nsuit building and the furniture placed therein was Rs.10,000\/- and that the
\nrespondent\/plaintiff was forcibly evicted and driven out from the suit property
\neven without allowing him to remove the said counter and furniture. As such, the
\nfinding of the trial Court that the appellant\/defendant was liable to pay a sum
\nof Rs.10,000\/- towards the value  of the counter and furniture cannot be
\nassailed as it is supported by evidence. So also the finding of the trial Court
\nthat the appellant\/defendant is liable to pay a sum of Rs.10,000\/- spent towards
\nthe repair and maintenance of the suit  property cannot be assailed as it is
\nsupported by evidence. The lower appellate Court, being the highest Court of
\nappeal on facts, has also reappraised the evidence and has correctly concurred
\nwith the said findings of the trial Court. The said finding of the trial Court
\ncannot be termed as one based on no legal evidence or a finding which could not
\nhave been arrived at reasonably based on the evidence adduced on either side. To
\nput it in short, the said finding cannot be termed a perverse one. In a second
\nappeal findings of fact recorded by the Courts below cannot be interfered with
\nunless the same is found to be perverse, in which case the same will give rise
\nto a substantial question of law.\n<\/p>\n
\t\t8. It should also be noted that the Courts below have rightly
\nrejected the claim of the respondent\/plaintiff that the alleged payment of
\npremium of Rs.2,500\/- could not be believed. The claim of Rs.5,000\/- as damages
\nfor the alleged loss caused to the respondent\/plaintiff by his inability to get
\na telephone connection as he was forcibly evicted from the suit property was
\nalso rightly rejected by the Courts below. The plea made by the plaintiff in the
\nplaint that, apart from the furniture provided by the erstwhile lessee
\nThangasamy in the suit property, the plaintiff had also put furniture worth
\nRs.5,000\/- in the suit property was rightly negatived by the Courts below. That
\nis why the Courts below have chosen to decree the suit in respect of the
\nalternative prayer for the recovery of Rs.20,000\/- alone together with an
\ninterest calculated at the rate of 6% per annum from the date of plaint till
\nrealisation. In disallowing interest till the date of filing of the suit, the
\nCourts below have proved to be just and reasonable. Hence the concurrent
\nfindings of both the Courts below that the respondent\/plaintiff is entitled to
\nrecover a sum of Rs.20,000\/- together with an interest for the said amount from
\nthe date of plaint till realisation at the rate of 6% per annum cannot be
\ninterfered with in this second appeal. No substantial question of law is proved
\nto have involved in this second appeal. All the questions projected in
\nmemorandum of appeal as substantial questions of law are not, in fact,
\nsubstantial questions of law involved in this case.\n<\/p>\n
\t\t9. For all the reasons stated above, this Court comes to the
\nconclusion that there is no merit in the second appeal and the same deserves to
\nbe dismissed. Accordingly, the Second Appeal is dismissed. There shall be no
\norder as to payment of costs, as the second appeal is dismissed at the stage of
\nadmission itself.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The District Judge,
\n  Nagercoil.\n<\/p>\n
2.The Subordinate Judge,
\n  Padmanabhapuram.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Jeyanthi S.Thampi vs P.Selvarajan on 26 November, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-161640","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nJeyanthi S.Thampi vs P.Selvarajan on 26 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jeyanthi-s-thampi-vs-p-selvarajan-on-26-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jeyanthi S.Thampi vs P.Selvarajan on 26 November, 2007 - 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