Madras High Court
Indra Sen (Deceased) And Lakshmi ... vs Rajamma, M. Ashok Mungara And Pramila ... on 14 February, 2006
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. The Plaint averments in O.S. No. 1557/85 are as follows:
Originally the land in question bearing Plot No. 122 in T.S. No. 36, Block No. , Urur, Adyar, madras-20 among other lands had been registered in the name of the second respondent. The husband of the first plaintiff and father of the plaintiffs 2 to 6 viz., Gananapathy Mudaliar was in occupation of the said piece of land and more particularly described in the schedule of property of an extent of about 1 ground and 126 sq.ft., Ganapathy Mudaliar and the first plaintiff had also been enrolled in the electoral rolls from the said address. After resurvey in the year 1979, in the land register the name of the deceased Ganapathy Mudaliar had been entered as the person then in occupation and possession of the said piece of land. While so, the first defendant filed O.S. No. 6523 of 1982 to the effect that the plaintiffs herein are in occupation of only a hut in the area in question measuring 15' x 20' and prayed for delivery of vacant possession of the same. The said suit has been filed as against the first plaintiff herein and the first plaintiff filed written statement that she is in possession of 1 ground and 126 sq.ft., On 14.2.1985 the first defendant trespassed into the area and planted some plants, for which the plaintiffs filed a criminal complaint. Every now and then the first defendant who is the owner of the adjacent land is trying to annex all the lands adjoining to his land. The plaintiffs are permanent tenants in occupation of the land in question and had also paid moneys as deposit towards rent. As lessees the tenants under the second defendant the plaintiffs are entitled to purchase the property also on an outright purchase. Hence the suit for declaration of the plaintiffs as permanent occupants as tenants of the suit property under the second defendant and for consequential relief of permanent injunction restraining the first defendant from interfering with the peaceful enjoyment and possession of the plaintiffs.
2. The first defendant in his written statement contended that he is one of the leading horticulturists growing plants, trees etc., and landscape and garden architects. He is the lessee of piece of land at Urur Village in Plot No. 122, in T.S. No. 36, Block No. 6, Adyar, Madras-20 to an extent of 1 ground and 11 sq.ft., under the second defendant. This defendant is paying the land rent for the entire piece of land. This defendant is also having his own lands adjacent to the suit land and having his nursery there. Since he is maintaining the garden and nursery in he suit land he appointed the husband of the first plaintiff as watchmen shed inside the suit land. After the death of the plaintiff's husband, the first plaintiff continued to look after the garden in a permissible occupation.
3. This first defendant filed a suit in O.S. No. 6523 of 1982 against the first plaintiff for possession of the shed put up by this defendant permitted to be occupied by her after the demise of her husband. When the suit ripe for trial the first plaintiff along with here sons and daughters filed O.S. No. 1557 of 1985 for declaration that they are the permanent occupants of Plot No. 122 and for also for consequential injunction. This defendant is in possession for over 30 years as lessee under the second defendant temple. The shed has been put up by him. The allegation that the plaintiffs were in occupation of an extent of 1 ground and 126 sq.ft., is false. The inclusion of the first plaintiff's husband's name or the plaintiffs names in the ration card or electoral rolls and in the permanent land register as occupants are all false and the same are denied. This defendant gave Police complain when the plaintiffs attempted to trespass into the lands belonging to the defendant. This defendant is trying to encroach upon the suit land is a mischievous statement. The allegation that they have deposited money towards rents and as lessees and tenants the plaintiffs are entitled to purchase the property outright is denied.
4. The second defendant filed a written statement contending that the Temple Devasthanam own large extent of lands at Urur Village. In respect of the suit land, the first defendant is the tenant and he is running a nursery here for the last 30 years by paying rents. The first plaintiff filed O.S. No. 6523 of 1982 for delivery of possession of the suit land. The first plaintiff's husband approached the local clerk of the Devasthanam at Madras and asked him to issue rental receipts in his name. When the refused he approached the Executive Officer at Thiruvannamalai and on false representation he received a receipt for payment of Rs. 100/= towards rent. Later it was found that it is only to make a false claim such a procedure had been adopted and the payment was returned to him.
5. The first defendant in the above suit filed O.S. No. 2559 of 1985 for grant of permanent injunction restraining the defendant from in any way interfering with the peaceful possession and enjoyment of the nursery operated in land at Plot No. 122, T.S. No. 36, Block No. 6, Urur Village, Adyar, Madras to an extent of 1 ground and 11 sq.ft., based on the averments almost similar to the written statements filed in O.S. No. 1757 of 1985. The first defendant even as on 15.9.1982 filed O.S. No. 6523 of 1982 for recovery of possession based on the similar allegations and averments.
6. For convenience, the parties will be referred to as arrayed in O.S. No. 1557 of 1985.
7. The Trial Court clubbed all the three suits together and by a joint trial and common judgment decreed the suit O.S. No. 6523 of 1982 filed by the first defendant for recovery of possession. The plaintiff's appeal in A.S. No. 158 of 1991 was allowed. Hence the Second Appeal No. 913/94 by the first defendant. O.S. No. 1557/85 filed by the plaintiff for declaration and permanent injunction was dismissed. The appeal in A.S. No. 157/91 filed was also dismissed. Against which S.A. No. 905/94 has been filed by the plaintiff. The suit O.S. No. 2559/85 filed by the first defendant for permanent injunction was decreed, against which the plaintiff filed an appeal in A.S. No. 158/91 and the same was dismissed. Aggrieved by the same, she has preferred S.A. No. 871 of 1994.
8. At the time of admission, the following substantial Question of law was framed by this Court in S.A. No. 913 of 1994:
Whether the lower appellate court had erred in holding that the plaintiff is not lessee, without evidence?
9. At the time of admission, the following substantial Questions of law were framed by this Court in S.A.Nos:871 and 905 of 1994:
1. Whether the lower court had erred in considering matters and evidence which are beyond the scope of the pleadings?
2. Whether the lower court had erred in not decreeing the suit O.S. No. 1557 of 1985 notwithstanding the fact that the lower appellate court holds that the deceased Ganapathi Mudaliar had patta in his name and the said land had been notified under the Tamil Nadu Slum Clearance and Improvement Act?
10. Heard Mr. T.V. Ramanujam, learned Senior Counsel, Mr. A. Thiagarajan, learned Counsel, and Mr. S.S. Mathivanan, learned Counsel appearing for the respective parties in the respective Second Appeals.
11. Mr. A. Thiagarajan, learned Counsel appearing for the appellant in S.A. No. 905 of 1994 contended that the plaintiff filed O.S. No. 1557 of 1985 for declaration of title and permanent injunction. Though the trial court dismissed the suit and on appeal it was confirmed, the findings are the suit property was leased out by the Temple Devasthanam to one Mari and he was thrown away illegally from the suit property by the first defendant Indrasen. The first defendant has not produced any document to show that he was a tenant under the Temple, that he has employed the first plaintiff's husband as a gardener/watchman, not produced any proof for appointment and for payment of salary to him.
12. Further, Exs.A.8 to A.19 produced by the first defendant are all created documents after filing of the suit and the same were not relevant and the same have to be rejected. The documents filed by Temple Ex.X.4 are all created documents. It was established that first plaintiff Rajammal and her family members are all staying in the suit property. During the year 1982, Slum Clearance Board has declared the property as Slum area and in those documents also, the said Rajammal and her family members were shown to be in physical possession and enjoyment of the suit property. The other documents would go to prove that the plaintiff and her family members are residing in the property for more than 30 years. Therefore they have perfected title and hence the suit ought to have been decreed and therefore S.A. No. 905 1994 ma be allowed by this Court.
13. As regards the suit O.S. No. 2559 of 1985 filed by the first defendant, for permeant injunction against the plaintiff in respect of the suit land, learned Counsel for the appellant in S.A. No. 871/94 submitted that the suit was decreed and the appeal filed by the plaintiff was dismissed and hence the Second Appeal. Learned Counsel for the appellant submitted that when the first defendant has filed a suit in O.S. No. 6523 of 1982 for delivery of vacant possession, the subsequent suit filed by him for permanent injunction in the year 1985 is not at all maintainable in view of the fact that the plaintiff is in continuous possession of the property. The first defendant is barred from filing a fresh suit for the same cause of action and he has no filed any material evidence to substantiate his physical possession of the property. However, the appellate court had granted injunction merely on the ground that he is cultivating the garden in the suit land. The said finding is per se illegal since, it is an admitted fact that one Mari as the lessee under the Temple, that here was no evidence to show that Mari has sub leased the suit land to the first defendant; that it is also not established that the first defendant was a tenant under the Devasthanam; that it is also proved that the plaintiff and his family members are staying in the property from 1960. In view of the fact that the first defendant has not proved his case with legally acceptable cogent material evidence, the first appellate court ought to have allowed the appeal filed by the plaintiffs. The first appellate court further failed to consider the very vital fact that the adjacent property of the suit property is owned by the first defendant. Hence the first appellate court ought to have allowed the appeal filed by the plaintiff.
14. As regards S.A. No. 913/94, the learned Counsel for the appellant submitted that the first defendant has filed O.S. No. 6523 of 1982 or recovery of possession of the shed measuring 15 x 20 feet. According to the learned Counsel, the first defendant had not produced any material evidence like lease agreement executed with Thiruvannamalai Arulmighu Annamalai Temple; no rental receipt was produced; no document relating to appointment of the first plaintiff's husband as a gardener/watchman and no proof of payment of salary was produced; it is established that one Mari was the tenant under the Temple. The criminal records would show that the first defendant was a trespasser to the suit property which is under the physical possession an enjoyment of the plaintiffs. The plaintiffs filed Exs.B.10, B17 to 21 and B.26 to prove payment of Urban Land Tax. Ex.B.4 issued by the Assistant Revenue Officer XIV, Corporation of Chennai would show that the assessment made in the name of Indersan was cancelled. Exs.B.4 and B.28 clearly establish that the property was surveyed by the Settlement Officers and completed the survey. Exs.B.5 and B.6 being the Government Gazette Notification declaring the suit property as a slum area establish that the first plaintiff's husband was in physical possession and enjoyment of 1 ground and 126 sq.ft., Ex.B.6 stands in the name of the first plaintiff's husband's name. In Ext.C.1 and B.30 it is clearly mentioned that the occupant of the suit property was Ganapathy Mudaliar, the first plaintiff's husband. Accordingly, considering the above, the first appellate court has considered the first appellant only as an trespasser. The first appellate court did not believe the rental receipts. The first defendant has not established his right as a lessee. The Temple authorities have also not produced any record to prove the same. When once it is established that the first defendant was not in physical possession and enjoyment of the suit property and it is only the plaintiffs, the first defendant is not entitled to any relief against the plaintiffs and therefore the appeal filed by the first defendant in S.A. No. 913/94 is liable to be dismissed.
15. Mr.T.V. Ramanujam, Learned Senior Counsel appearing for the respondent/first defendant contended that the documents relied upon by the plaintiffs namely Exs.B.5 and B.6 have not been proved and they are not original documents as deposed by D.W.1, one Swaminathan, an Assistant from the Slum Clearance Board. He also says that he has not given Ex.B.33 to any one. D.W.3 Sivanesan, an Assistant from the Public Works Department also stated in his evidence that the department has issued a notification in respect of the Devasthanam's property. Thus the alleged Notification under Section 3(1) of the Act has not been proved. Ex.B.9 is not an authenticated copy. No survey number is mentioned. No steps have been taken to summon the originals. Thus when the Notification under the Act has not been proved, the bar under Section 29 of the Tamil Nadu Slums Areas Improvement and Clearance Act 1972 does not arise.
16. Learned Senior Counsel also submitted that the land belongs to the Devasthanam and there are written statement and evidence to the said effect. It is also admitted by the Devasthanam that Indrasen is the tenant. Both the courts have concurrently held that Devasthanam is the owner of the property. Thus the plaintiff and others have to stand or fall on their own case. They have failed to establish their case. It is only Mari has assigned his leasehold interest in favour of Indrasen. This is clear from Ex.X.4 file an the Devasthanam has also recognised Indrasen as its tenant. Even as seen from the Advocate Commissioner's report marked as Ex.C.1, it is clear that Indrasen has been in possession of the suit property on the date of filing of the suit. The first appellate court's finding as if Indrasen has thrown out Mari and has wrongfully occupied the property is contrary to the available records on record and that such finding is based on no evidence.
17. Though the plaintiffs produced some urban land tax receipts to prove possession from 1960 onwards those documents are not relevant. They cannot be relied upon for praying lawful possession when admittedly, the Devasthanam is the real owner of the property. They cannot get and injunction against the real owner. The first plaintff has not entered the witness box and Ayyappan, who was only 7 years in the year 1958-59 has examined himself an thus he is not competent to say anything. No document has been produced to show that the plaintiffs were in lawful possession of the suit property on the date of filing of the suit. The suit for injunction is an equitable remedy. During the pendency of the suit the plaintiffs attempted to pay Rs. 100 to the Devasthanam suppressing the material facts and later the Deasthanam returned the money. The witness who deposed on behalf of the Devasthanam has clearly stated that an attempt was made to pay a sum of Rs. 100/= to create evidence without disclosing the correct facts. The Devasthanam has admitted that Indrasen is a tenant and they received rents also. As far as Rajammal's husband is concerned, he was only a person working as a Gardener under Indrasen. The assignment of leasehold right by Mari in favour of Indrasen has been recognised by the real owners, namely the Devasthanam.
18. The question of paying tax under B-memo will not prove title or possession when the suit property belongs to a temple. It is not known under what circumstances urban land tax has been paid. Urban Land Tax has to be paid only by the owner. Exs.B.30 and B.40, which is subsequent to the litigation cannot be relied upon. The allegation that Exs.A.8 an A.9 are all created is not correct. It is for the Devasthanam which is the real owner has to decide. Mere entries in the Revenue Records cannot extinguish or create title nor do they have pre-emptive values. Such records are only for payment of land revenue. The order of the Revenue Authorities is not binding on the civil suit and the Civil Court will decide the rights of the parties independently.
19. As rightly argued by Mr. T.V. Ramanujam, learned senior counsel appearing for the respondent/first defendant, Exs.B.5 and B.6 have not been proved by the appellant/plaintiff. D.W.2 disputed those exhibits and he also admitted that he does not know who are all residing in the suit property. So also D.W.3, did not support the plaintiff's case, particularly with respect to issuance of Notification. Admittedly, the land belongs to the Devasthanam and the Devasthanam has given evidence that they have recognised Indra Sen, the respondent/first defendant as a tenant. Thus, Indra Sen claiming right under the Devasthanam is entitled to recover possession of the suit property. There is no bar under Section 29 of the Tamil Nadu Slum Areas Improvement and Clearance Act, 1972 as the alleged Notification has not been proved.
20. Both the courts have concurrently held that the land belongs to the Devasthanam. The allegation that one Mari was a tenant and Indra Sen has thrown out and encroached the land does not require any consideration since the Devasthanam has recognised Indra Sen as its tenant, which is proved by records filed in Ex.X.4 file. From the file it is seen that the said Mari has assigned his lease hold interest in favour of Indra Sen.
21. As seen from Ex.C.1 it is clear that the respondent/first defendant was in possession of the suit property on the date of filing of the suit O.S. No. 2559/1985. On the other hand, the plaintiffs have not produced any materials to show that they have been in lawful possession of the suit property on the date of filing of the suit. When admittedly, the Devasthanam is the owner of the property, the plaintiffs cannot claim any lawful possession or any right by merely producing some urban land tax receipts or survey records. So also the B memo receipts cannot prove title or possession. Rajammal has shunned from entering the witness box for obvious reasons to prove that she and others were in lawful possession of the suit property on the date of filing of the suit. On the other hand one Ayyappan has deposed about the things that happened during 1958-59. During that time, his age was only 7 years. Having failed to prove that they are the tenants under the Devasthanam, the plaintiffs' case has to necessary fail.
22. It is also the fact that the plaintiffs had paid Rs. 100/= to the Devasthanam on a misrepresentation by suppressing the material facts and ultimately the Deasthanam had returned the money. The said action was only to create evidence and prove that they were tenants under the Devasthanam. Thus the plaintiffs are not entitled to the reliefs of declaration and injunction as Ganapathy Mudaliar was only a gardener worked under Indra Sen and Indra Sen is entitled to recovery possession of the shed as well. Exs.B.30 and B.40 are subsequent to the disputes have arisen and they cannot be relied on. For the foregoing reasons, all the substantial questions of law are answered against the appellants/plaintiffs.
23. In the result, Second Appeal Nos. 871 and 905 of 1994 are dismissed and S.A. No. 913 of 1994 is allowed. There is no order as to costs.