Madras High Court
G. Srinivasa Pillai vs G. Meganathan on 8 April, 2004
ORDER M. Thanikachalam, J.
1. The defendant, who suffered an order of ejectment, under Section 41 of the Presidency Small Cause Courts Act, 1882, hereinafter called 'the Act', is the revision petitioner.
2. The respondent herein as plaintiff, filed an ejectment suit before the Small Cause Court, claiming that he is the absolute owner of the tiled house and cattle yard, built on the land belonging to Mannarsami Koil, that the defendant was permitted to occupy the same, under leave and license, that the said permission was revoked by the notices dated 23.1.1991 and 23.9.1998, directing him to vacate and delivery possession, which he failed to oblige and that under the above said circumstances, an order of ejectment should be passed in his favour.
3. The respondent/defendant opposed the suit inter alia, on the ground that he is in possession and enjoyment of the suit property, right from the year 1972 onwards in his own right, thereby he had prescribed title to the suit property, by adverse possession, that the plaintiff never gave permission to the defendant, to occupy the property under leave and license, since he had no right to do so also, and that the suit is aimed to grab the property, thereby praying for the dismissal of the suit.
4. The learned III Judge, Small Cause Court, Madras, examining two witnesses on behalf of the plaintiff, and one witness on behalf of the defendant, marking some documents, analysed the above material, which brought to surface that the defendant was permitted to occupy the premises under leave and license, that the same was terminated by the notices and in this view, the defendant is ordered to be evicted. On the basis of the above conclusion, the suit was decreed on 6.12.2001, which is under challenge, in this revision.
5. Heard the learned counsel for the petitioner, Mr. R. Subramanian and the learned counsel for the respondent, Mr. A. Subramania Iyer.
6. The learned counsel for the revision petitioner/defendant submits, that the Small Cause Court has no jurisdiction, to order eviction, since the plaintiff aims to evict the defendant, from the immovable property, over which the defendant claims right independently, that the plaintiff had failed to prove the permission said to have been granted by him, to occupy the premises under leave and license and therefore, according to him the order of eviction is against law.
7. On the other hand, the learned counsel for the respondent/plaintiff submits, that in pursuance of the settlement deed executed by the original owner of the suit property, the plaintiff respondent became the owner and that the permission granted to the defendant/revision petitioner was revoked by issuing notices, for which there was no reply and in this view, the eviction ordered by the trial Court, is sustainable under law.
8. Section 41 of the Act empowers the Small Cause Court to order recovery of possession of immovable property subject to certain conditions. Section 19 of the Act classifies certain kinds of suits over which the small cause court shall have no jurisdiction. Section 19(d) relates to "suits for the recovery of immovable property". Section 19(g) relates to "suits for the determination of any other right to or interest in immovable property". Therefore, if the dispute is in respect of recovery of immovable property, coming outside the purview of Section 41 of the Act, and coming within Section 19 of the Act, then, the Small Cause Court cannot have jurisdiction. If the dispute had raised, touching the recovery of immovable property, as well as for determination of any other right over the immovable property, then the parties should be directed to work out their remedy before the appropriate forum, by filing a proper suit and this kind of summary procedure should be curtailed.
9. In order to invoke the jurisdiction of the small Cause Court, the plaintiff should establish, that the defendant has been in possession of immovable property as tenant or by permission. If that is proved or admitted, then it should be shown such tenancy or permission has been determined or withdrawn. Despite the determination and withdrawal of permission, if a person continues to be in possession of the immovable property, then by filing a suit under Section 41, as contemplated under Section 42, summons shall be served and thereafter, order of possession has to be passed under Section 43 of the Act.
10. The plaintiff/respondent, claims that he became the owner of the property, on the basis of a settlement deed executed by his uncle Thangavelu Pillai on 27.5.1986. The defendant is also closely related to Thangavelu Pillai. But the plaintiff having claimed title under the settlement deed dated 27.5.1986, would contend in paragraph-9 of the plaint that the cause of action had arisen in 1985, when the plaintiff permitted the defendant to occupy the property, which was later terminated. This would go to show, that the permission was granted to the defendant in the year 1985.
11. As rightly pointed out by the learned counsel for the petitioner, when the plaintiff has become the owner of the property only on 27.5.1986, question of granting permission to the defendant in the year 1985 does not arise. In this view, the alleged permission or leave and license, appears to be an imaginary one, invented to invoke Section 41 of the Act. It is the not the case of the plaintiff, as seen from the averments in the plaint, that the defendant was occupying the premises as tenant or under leave and license, even under Thangavelu Pillai and later on, on the basis of the settlement, he became the permissive occupier, under him. In this view, the permission alleged goes, which should follow, the determination of leave and license also has no legs to stand.
12. The defendant had questioned the settlement deed and the competency of the settler to settle the superstructure, since according to the defendant, he is in occupation of the property from the year 1972. There is no evidence as such, that the settlement deed was acted upon or possession was taken. These things cannot be decided in a suit, couched under Section 41 of the Act. Admittedly, immediately, he had not taken any steps also to transfer the property in his name, thereby showing that he might have taken possession of the property in pursuance of the settlement deed. Only just one month prior to the filing of the suit, application was given for the transfer and thereafter, it is not known what is the result. Therefore, on the basis of the mutation in the register also, it is impossible to say that the settlement deed was acted upon, possession was taken over and the defendant was recognised only as licensee, etc.
13. The learned trial Judge, has not given any finding regarding the leave and license or permission said to have been given by the plaintiff to the defendant. He has also not given any finding, how the same was determined or terminated. The learned trial Judge, reproducing the pleadings, abruptly, came to the conclusion, that the revision petitioner is a lessee, which is not the case of the defendant. On the basis of the settlement deed and taking advantage that the defendant failed to reply for the notice, a presumption was drawn in favour of the plaintiff, as if the defendant is in occupation of the premises, under permissive occupation, which is not available. The learned trial Judge has observed, that he has no jurisdiction to decide, whether the defendant has prescribed title to the suit property by adverse possession or not. This right claimed by the defendant is, over the immovable property, since the site belongs to temple. The defendant claims that he is the owner of the superstructure, whereas the plaintiff claims that he is the owner of the superstructure, thereby showing that there is bona fide dispute between the parties, regarding the title to the suit property viz., the immovable property. The position being so, as contemplated under Section 19 of the Act, the Small Cause Court shall have no jurisdiction, in a suit for recovery of immovable property, where it involves determination of the rights of the parties. Without considering the scope of Section 19 of the Act as well as without giving a finding in the suit, how it comes within the ambit of Section 41, the learned trial Judge has ordered eviction, which is against the provisions of law and in this view, I am of the considered opinion, the ejection order is liable to be set aside. If the plaintiff is advised, he has to work out his remedy, before proper forum, by filing a proper suit and he is not entitled to invoke Section 41 of the Act.
The revision is allowed, setting aside the order made in Ejectment Suit No.12 of 1998 dated 6.12.2001, on the file of the learned III Judge, Court of Small Causes at Madras, thereby dismissing the suit. No costs.