Madras High Court
C. Ramalingam vs C. Ramasamy And Gandhi on 22 August, 2002
Equivalent citations: (2002)3MLJ460
Author: A.K. Rajan
Bench: A.K. Rajan
JUDGMENT A.K. Rajan, J.
1. The first defendant who lost before the courts below has filed the present second appeal challenging the concurrent findings of the courts below.
2. The plaintiff and the first defendant are brothers. The 2nd defendant is a person who is claiming under the first defendant and he remained exparte throughout.
3. The suit property relates to about 2.93 acres of land which was originally owned by one Yovan s/o.Samuel. One Kunjan obtained a lease of 1.5 acres under Ex.A1 on 4.8.34 for a period of 6 years. He was holding over that land even after the lease period was over. Thereafter, by Ex.A2 Kunjan assigned his right on 8.11.50 in favour of one Chellayan Nadar, the father of the plaintiff and first defendant. The said Chellayan obtained a lease of the remaining portion of the land under Ex.A3 in the year 1949 from the heirs of Yovan for a period of 12 years. Thereafter, in the year 1957 under Ex.B3 the same heirs of Yovan mortgaged the entire properties to Neelu the wife of Chellayan. Thereafter the first defendant purchased from the heirs of Yovan under Ex.B1 dated 12.9.1959 the right of redemption of mortgage. Subsequent to that by Ex.B4 dated 19.7.61, the first defendant redeemed the mortgage from his mother Neelu.Ex.B10 is with respect to the entire property of approximately 3 acres. Chellayan Nadar died in the year 1984. Thereafter the plaintiff filed a suit for partition of this property.
4. The defendant took a plea that he having purchased the right of redemption of mortgage and subsequently having redeemed the mortgage,the entire ownership of the property vested on him and therefore at the time of death of Chellayan Nadar, there was no existing relationship of landlord and tenant between the first defendant and his father Chellayan Nadar. Therefore, the plaintiff has no partable right and hence the suit is not maintainable.
5. The trial court did not accept the contention of the plaintiff and decreed the suit as prayed for. The appeal filed against that was also dismissed and the present second appeal has been filed challenging the concurrent findings of the both the courts below.
6. Learned counsel for the appellant submitted that the lease of Chellayan Nadar having come to an end long prior to the date of his purchase and even the subsequent lease and mortgage made by the heirs of Yovan were also redeemed by the first defendant and since there was no relationship of landlord and tenant between the first defendant and his father Chellayan Nadar, the property is not liable for partition. In support of his contention, the learned counsel relies on the decision of the Supreme Court reported in R.V.BHUPAL PRASAD VS. STATE OF A.P.&OTHERS wherein the Supreme Court has held in para-8 as follows:
"8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property act (7th Edn) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical."
He also pointed out that the said proposition was approved in another subsequent decision of the Supreme Court reported in Kewal Chand Mimani VS. S.K.Sen & Others and he also relied on the decision reported in Shanthi Devi VS.Amal Kumar (AIR 1981 SC 1550). Therefore the learned counsel submitted that when the lease period comes to an end and when the tenant was continued to be in possession, there is difference between a tenant at sufferance and a tenant holding over. If the lessee remained in possession after the determination of the term, the common law rule is that he is a tenant at sufferance. The expression holding over is used in the sense of retaining possession with the consent of the land lord. The former is only tenant at sufferance whereas the later is only tenant holding over or 'tenant at will'. In this case since the possession was not with the permission of the lessor, it is only a tenancy at sufferance. Therefore, he is not tenant holding over and hence has no right to continue in possession after the term of the tenancy. Therefore, on the date when the father died, there is no continuation of tenancy since the tenancy term was terminated long back.
7. Learned counsel for the respondent submitted that in the written statement filed by the defendant it is stated that in any event if the courts found that there is there is lease hold right subsisting in favour of the plaintiff, the plaintiff is only entitled for the extinguishment of the leasehold right after receiving the proportionate lease amount if any. Therefore, the counsel submitted that it is not the case of the defendant hat lease hold right has ceased to exist when the his father died. Learned counsel further pointed out that in Ex.B4 the document executed by the mother of the plaintiff in favour of the first defendant it has been stated as follows:
@,e;j U:gha; Kd;D}Wk; bgw;wpUg;gjw;F tptuk; i& ek;gh; gj;jpuj;jpy; ngjpU ehlhh; bry;iyad; ehlhh; bgaUf;Fs;s ghl;l ghj;jpaijia xHpg;gpj;J bfhs;syhbkd;W tptuk; brhy;ypapUg;gJ mDrhpj;J ehd; xHpg;gpl;oy;yhjjhy; me;j ghj;jpaij xHpg;gpj;Jf; bfhs;tjw;F tif itj;J bfhLj;j U:gha; 35?k; md;W buhf;fk; bgw;Wf; bfhz;l U:gha; 265?k; tif ,uz;oy; U:gha; Kd;D}Wk; tif itj;J bfhLj;Jk; buhf;fkhft[k; bgw;wpUf;fpwJ/ ,e;j tif bjhifapy;yhky; ehd; ntW vt;tpj bjhifa[k; bgw;wpl;oy;yhjJkhFk;/ i& ek;gh; gj;jpug;go vdf;Fs;s rfytpjkhd mtfhrt[k; ghj;jpaija[k; ,jdhy; tpl;bkhHpe;J bfhLj;jpUg;gJk; i& ek;gh; gj;jpuk;[;;; vLj;J bfhLj;Jk; ,Uf;fpwJ/@ Therefore even in this document it is referred that what is conveyed is only the right possessed by the mother Neelu and not the right possessed by Chellayan as the lessee over the suit property. Therefore, in so far as the right of Chellayan Nadar over the suit property, it has not been extinguished till his death. Further he pointed out that DW1 during the cross examination admitted that the one year old rubber trees standing in the land were planted only by the plaintiff. The counsel submitted that the plaintiff is also in the joint possession of the property even after the suit was filed. Therefore, the counsel submitted that the plaintiff is in joint possession of the property and therefore he is entitled for partition. Further the counsel pointed out that DW1 admitted in the cross examination as follows:
@vf;!;gpl; gp/4 y; cs;s ghl;lj;ij xHpg;gpf;f ntz;Lk; vd;W brhy;ypapUe;Jk; ghl;lj;ij xHpg;gpf;fhky; brhj;J vd; iftrk; fpilj;jJ/ vd; mg;gh brhj;ij tpl;L bfhLj;jhh; vd;gjw;F hpf;fhh;L jhf;fy; bra;ayhk;/ ,r;brhj;ij bghWj;J hpf;fhh;L ,y;iy vd; mg;gh xUnghJk; brhj;ij vd;dplk; tpl bfhLf;ftpy;iy vd;W brhd;dhy; jtW/ ehd; Kjy; Kjy; vg;nghJ jhth brhj;jpy; mDgtk; vLj;njd; vd;W bjhpahJ/@ Therefore, the plaintiff has not taken possession from the lessee namely from his father Chellayan Nadar. He has not stated that from which dated the defendant was in exclusive possession of the land having taken from his father.
8. Learned counsel for the appellant submitted that the documents filed on behalf of the defendant viz., the kist receipts prove that he is in exclusive possession of the property after purchase in 1961. The documents that are filed are Exs.B6 to B11. Exs.B13 to B15 are subsequent to suit and only Exs.B6 to B11 are relevant for the purpose of consideration. In Ex.B10, the names of Chellayan Ramalingam are found and in Ex.B11 only the name of Ramalingam is found. The counsel submitted that in that part of the area, it is usual to include the name of the father also alongwith the personal name and therefore, the name Chellayan Ramalingam refers only to Ramalingam , S/o.Chellayan and it is not two independent names. If that has to be accepted, even in Ex.B11 it should find similar mention, but in all the documents it refers to Chellayan and Ramalingam. Though he stated in evidence that he can produce documents in proof of having taken possession from the lessee viz., his own father, no such documents have been filed. But at the same time, he also admitted that there is no record relating to this property and he does not know from which date the property is in his exclusive possession. Therefore, the contention of the defendant that the property was possessed by him exclusively from the date on which he purchased in 1961, is not supported by evidence on record.
9. Admittedly the property was possessed as lessee by the father of the plaintiff and the first defendant. At the same time, the lease hold right was mortgaged in favour of the wife of the lessee and that was purchased by the first defendant. Merely because the defendant has purchased the right of redemption of mortgage and subsequently redeemed the mortgage, the lease hold right possessed by Chellayan does not cease to exist ,does not get wiped out. Learned counsel for the appellant submitted that there is no evidence to show that the relationship of landlord and tenant existed between himself and his father Chellayan as no lease amount was paid by the lessee. Therefore, there is no evidence to show that the lease hold right continued till the death of his father. Merely because the lease amount was not paid, it does not mean that Chellayan handed over or relinguished his right of possession in favour of the defendant. That right continues. The counsel further submits that since the possession of the lessee after the termination of the lease period is not legal possession and since the first defendant who has purchased the property is in possession of the land subsequent to the death of the lessee, the possession of the property has passed on to the defendant. Therefore, as per the decision of the Supreme Court referred to already, the plaintiff does not get any right over the property much less he can file a suit for possession of the property.
10. Even assuming that Chellayan Nadar was in possession of the property without any right whatsoever and when he died his possessary right over the property will devolve upon all the heirs. Merely because one of the heirs has purchased the property, it does not mean that the possessary right does not devolve upon the other heirs. Therefore, the plaintiff would be entitled only to the rights of the father which he had at the time when he died. That is, his father Chellayan was only in the possession of the property and even that possession was only in the capacity of a tenant holding over and only for that right the plaintiff is entitled and nothing more than that. Since the father was in possession of the property but not under lease but continued to be in possession after the termination of the lease only such right the lessee holding over or 'tenant at will' have and hence the plaintiff is entitled to that right alone. Therefore, the courts below are right in their concurrent findings and hence no interference is warranted in this second appeal. Hence, with the clarifications mentioned above, the second appeal is dismissed. No costs.