Madras High Court
Kalavathy vs Saradha on 4 March, 2011
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4-3-2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI S.A.NO.1570 of 2000 Kalavathy .. Appellant VS. 1.Saradha 2.Munisamy 3.Gopalasamy .. Respondents Prayer: Second Appeal is filed under Section 100 C.P.C against the judgement and decree dated 6.4.2000 made in A.S.No.19 of 1999 on the file of Additional District Judge, Pondicherry at Karaikal reversing the order and decreetal order dated 28.7.1999 made in E.A.No.427 of 1998 in E.P.No.20 of 1997 in O.S.No.215 of 1995 on the file of the Principal District Munsif, Karaikal. Appellant : Mr.T.R.Rajagopalan, S.C for M/s.S.Sundaragopal Respondents : Mr.R.Thiagarajan, S.C for M/s.T.Meikandan J U D G E M E N T
The plaintiff-decree holder is the appellant herein. The Second Appeal is filed against the judgment and decree dated 6.4.2000 made in A.S.No.19 of 1999 on the file of the Additional District Court, Pondicherry at Karaikal reversing the order dated 28.7.1999 made in E.A.No.427 of 1998 in E.P.No.20 of 1997 in O.S.No.215 of 1995 on the file of the Principal District Munsif Court, Karaikal.
2.The appellant herein filed O.S.No.215 of 1995 against the respondents 2 and 3 herein as the defendants 1 and 2 and the suit was after due contest by the second defendant, decreed as prayed for by directing the defendants to surrender vacant possession of the suit property to the plaintiff after dismantling the superstructure and to pay arrears of rent and future menses profit at the rate of Rs.5/- per month till date of actual delivery of the suit property. Aggrieved against the same, the second defendant preferred appeal along with an application to condone the delay in filing the appeal. Section 5 of the Limitation Act petition was dismissed and hence, the decree of the trial court has become final and binding on the parties to the suit. Thereafter, the plaintiff-decree holder filed EP.No.20/96 against the judgment debtors for delivery of possession and the Executing Court after hearing both sides, ordered delivery of possession after break opening the lock with police protection. When the court officer sought to execute the delivery order, the same is obstructed to by the first respondent herein who is none else than the mother of the second respondent/second defendant-Judgment Debtor and the same compelled the plaintiff to file E.A.No.427/98 under Order 21 rule 97 r/w Section 151 C.P.C for removal of obstruction caused by the first respondent/obstructor.
3.The application was seriously contested by the obstructor on the ground that the obstructor purchased the superstructure on 6.4.85 from the first defendant/second respondent herein for Rs.80/- and the ownership of the superstructure and the right to be in possession of the suit property was transferred in favour of the obstructor by Ex.B1 document dated 6.4.85 executed by the first defendant and thereafter, the obstructor has been along with her family members including her son/ the second defendant living in the same by making improvement of the superstructure. It is her case that the vacant site upon which superstructure is situated, belongs to Sri Kaliamman Koil, but no rent was claimed for the vacant site on behalf of the temple and the decree holder is a stranger in respect of the suit property and is in no way related to the suit property and neither the vendor nor the obstructor had paid any rent at any point of time for the property and the second defendant who is her first son is living with her as one of her family members without any independent right, title and interest over the property and the decree is passed only against the defendants 1 and 2 and not against the obstructor and she is not liable to be removed from the suit property.
4.Both parties have in respect of their respective contentions, examined themselves as P.W.1 and R.W.1 and the obstructor has also produced Ex.B1 dated 6.4.85 purported to be the sale deed executed by the first defendant in favour of the obstructor. The Executing Court by order dated 28.7.99 allowed the petition thereby directing the obstruction caused by the obstructor to be removed. Aggrieved against the same, the obstructor preferred A.S.No.19 of 1999 before the lower appellate court and the lower appellate court allowed the appeal on the ground that the decree holder has not established her ownership, whereas, the appellant/obstructor through Ex.B1 proved her right, title and interest over the suit property and she has been residing in the same in her own right for more than 15 years by periodically renewing the superstructure and the plaintiff ought to have persuaded her relief in the suit in her presence and her claim being genuine, the obstructor cannot be removed from the suit property. Aggrieved against the same, the plaintiff-decree holder filed the present second appeal before this court.
5.The Second Appeal is admitted on the following substantial question of law:
Whether the lower appellate court is misconceived by Ex.B1?
6.The suit is filed in respect of vacant site and the suit is based on tenancy relationship between the plaintiff and the first defendant. According to the plaintiff, the first defendant who is the tenant in respect of the vacant site under the original owner, has after the death of the original owner, renewed the tenancy in favour of the plaintiff and had been paying the rent to the plaintiff, thereafter has defaulted in payment of rent and he is hence liable to be evicted from the suit property and the second defendant is in the occupation of the suit vacant land on the strength of sub lease arrangement with the first defendant and has no independent right over the suit property and is hence, liable to surrender the suit vacant site after dismantling the superstructure over the same. The first defendant did not contest the suit and he remained exparte and the second defendant though filed his written statement claiming ownership over the superstructure on the strength of the sale deed dated 11.10.92, failed to contest the suit. The plaintiff has, in order to prove her case, examined her husband as PW1 and has produced Ex.A1 lease deed, Ex.A2 Will executed by Valliammal, Ex.A3 death certificate of Valliammal, Ex.A4 Assessment certificate relating to the suit property, Ex.A5 copy of the legal notice, Ex.A6 returned unserved postal cover and Ex.A7 acknowledgment card. No oral and documentary evidence is adduced on the side of the contesting second defendant. The suit was decreed by accepting the claim of the plaintiff that the first defendant is the lessee under the plaintiff in respect of the suit land and the tenancy is validly terminated through Ex.A5 notice and the second defendant, in so far as the vacant land is concerned, is only a trespasser. Aggrieved against the same, the second defendant preferred appeal along with the delay petition and the delay petition was dismissed and the judgment and decree of the trial court became final and binding on the parties to the suit.
7.The plaintiff has on the strength of the decree for recovery of possession of vacant site, filed Execution Petition and both the judgment debtors remained exparte and delivery was ordered and the execution of the delivery warrant was obstructed to by the third respondent/obstructor claiming herself to be in the occupation of the superstructure in her own right on the strength of Ex.B1 sale deed. The reading of Ex.B1 reveals that it is styled as nky;Tiw Mtzk; (document of superstructure) and the recitals are to the effect that the land belonging to Sri Kaliamman Koil is maintained by its trustee and the vendor put up superstructure upon the vacant site and has been residing in the same for more than 10 years in her own right and the same is sold to the vendee for Rs.80/- and the vendee is in possession of the superstructure and the vacant site and the superstructure are covered under patta no.120. The obstructor has as R.W.1 in the chief examination stated that Ex.B1 sale deed is executed in her favour by Munusamy and she has after the purchase, improved the same and she has been living in the same along with her aged mother, unmarried son and daughter and married son/second defendant and except the obstructor no one has any right to occupy the same and the vacant site belonged to the temple and the plaintiff has no right over the superstructure and she has no right to evict the obstructor from the superstructure. However, her evidence in the course of her cross examination, as rightly pointed out by the learned senior counsel for the appellant/plaintiff, was that she has no independent or direct knowledge about the nature and contents of Ex.B1-document and about the extent of vacant site and about the letter of obstruction and about the proceedings for removal of obstruction. She has categorically admitted in the course of her cross examination that the letter of obstruction is written by her son/second defendant and she affixed her signature in the same as requested by the second defendant who inturn handed over the same to Ameena and she has, except affixing her signature, no knowledge about the contents of the same. She would further add that she handed over Ex.B1 document along with obstruction letter to court ameen.
8.As far as Ex.B1 is concerned, the same is styled as nky;Tiw Mtzk; i.e. Document of superstructure and the same is purported to be executed on 6.4.1985 by the first defendant/Munusamy in favour of the obstructor in respect of superstructure. However, the document is not registered and the stamp paper of the same is not purchased either in the name of the first defendant Munusamy or obstructor Saradha, but in the name of one S.Krishnamurty. It is noteworthy to mention at this juncture that the second defendant who was instrumental in filing the obstruction petition through his mother, has in his written statement stated that he purchased the suit mentioned property for Rs.25,000/-. Whereas Ex.B1 sale deed in respect of the same property is not registered by referring to the sale consideration agreed between the parties in respect of the superstructure as Rs.80/-.
9.The facts above discussed would undoubtedly lead to a conclusion that the second defendant is solely instrumental for the obstruction caused through his mother who claims ownership of the superstructure on the strength of the unregistered document (Ex.B1) stamp paper of the same was purchased in the name of third party and without knowing anything about the nature and contents of Ex.B1 document and about the extent of suit vacant site. As already referred to, RW1 has no personal knowledge about the contents of Ex.B1 and the manner in which it came into existence. She has also not brought the other party to the document i.e. the first defendant to the witness box to prove the document and her failure to prove the document would only probabalise the case of the plaintiff that the obstructor has no independent right either over the superstructure or vacant site and she is only set up by the second defendant herein and Ex.B1 is created for the purpose of obstruction. In that event, the observation made by our High Court in the judgments reported in 1968 MLJ 386 in Madurai Nayagamma and others v. Plantain Merchants Association represented by its Secretary, 1984 LW 743 in K.C.Chanda Kutti Kurup v. Gulam Mohideen Saheb, (2007) 8 MLJ 43 in S.R.Mahendra Raj v. V.A.Gnanaprakasam and others, are squarely applicable to the facts of the present case. In the cases referred to above on the side of the appellant, our High Court observed that the land lord is entitled to remove the obstruction set up by the judgment debtor with a view to protract the proceedings of the delivery proceedings and the order of eviction obtained against the Chief tenant can be executed by evicting the sub tenants, who were not made parties in the application for eviction. The Division Bench of our High court has in the judgment reported in 1968 MLJ 386 in Madurai Nayagamma and others v. Plantain Merchants Association represented by its Secretary observed that if the sub tenant who was not made a party to the eviction application, may set up his own title, the order of eviction obtained against the chief tenant, is binding upon the sub tenant.
10.In the present case, the second defendant as well as the obstructor came to be in the occupation of superstructure put up on the vacant suit property only under the chief tenant and they are in so far as the vacant site is concerned, treated as sub tenant and any order of eviction passed against the chief tenant is on their failure to prove their independent right binding upon them and the decree holder is, on the strength of eviction order against the chief tenant, entitled to evict them.
11.In this context, the learned senior counsel for the respondents has, in support of his contention against the claim of the decree holder, cited the authorities reported in AIR 1968 SC 1165 in Nair Service Society Ltd., v. K.C.Alexander and others, (1976) 4 SCC 554 in Seth Beni Chand (Since Dead) now by L.Rs v. Smt.Kamala Kunwar and others and 100 Law Weekly 71 in Kanthammal v. Bysani Sriramulu Chetti and another. The authority in (1976) 4 SCC 554 is cited for the legal proposition that the burden of proof in testamentary cases lies upon the party propounding the Will and the burden of proving the due execution of the Will is discharged, only if the propounder leads evidence to show that the will bears the signature or mark of the testator and the will is duly attested. It is argued by the learned senior counsel for the respondent that the failure of the plaintiff to prove the due execution of the Will will certainly dis-entitle her to claim any right over the suit land and to enforce the decree for recovery of possession. In my considered view, such contention is liable to be negatived for the simple reason that the suit is based not on title but on tenancy relationship between the plaintiff and the first defendant and the claim for tenancy relationship between the two stands undenied or disputed by the first defendant as such it is needless to go into the question of title based on Will in the present suit.
12.The other two authorities reported in AIR 1968 AIR SC 1165 and 100 LW 71 cited on the side of the respondents are not applicable to the facts of the present case. Unlike the case dealt with by the Supreme Court, the present case is filed for the relief of recovery of vacant possession against the main tenant and the persons claiming under him. As it is now found out that the obstructor is claiming right to be in possession under one of the judgment debtors without any independent right and as the obstruction is set up by the other judgment debtor to protract the proceedings for delivery of possession, the decree holder is entitled to remove such obstruction. While the trial court has rightly decided so, the lower appellate court has on an erroneous approach, misdirected itself resulting in negativing the relief claimed in the petition for removal of obstruction. The lower appellate court has merely on the basis of Ex.B1 unregistered document, upheld the claim of the obstructor. The lower appellate court has while doing so, failed to consider the validity of the document in the light of the admission made by the obstructor as R.W.1 in the course of her cross examination and such finding of the lower appellate court by misconceiving the document, is legally and factually unsustainable and is hence, liable to be set aside. In that event, the plaintiff/decree holder is entitled to get the relief as sought for in her petition for removal of obstruction and the order of the trial court is hence restored.
13.In the result, the second appeal is allowed by setting aside the judgment and decree dated 6.4.2000 made in A.S.No.19/1999 on the file of the Additional District Judge, Pondicherry at Karaikal and the order and decreetal order dated 28.7.1999 made in E.A.No.427 of 1998 in E.P.No.20 of 1997 in O.S.No.215 of 1995 on the file of the Principal District Munsif, Karaikal is restored. No costs.
rk To
1.The Additional District Judge, Pondicherry at Karaikal
2.The Principal District Munsif, Karaikal