Madras High Court
S. Ramakrishnan And Ors. vs Thangamuthu Nattar And Ors. on 14 November, 1990
Equivalent citations: (1991)16MLJ1
ORDER Somasundaram, J.
1. The defendants 2 to 4 in O.S. No. 184 of 1987 on the file of the Sub Court, Tanjore are the petitioners in C.R.P. No. 2565 of 1989. The first defendant in the said suit is the petitioner in C.R.P. No. 277 of 1990. The plaintiff in O.S. No. 184 of 1987 referred above is the first respondent in both the civil revision petitions. The first defendant in the said suit is the second respondent in C.R.P. No. 2565 of 1984. The defendants 2 to 5 in the suit are the respondents 2 to 5, in C.R.P. No. 277 of 1990. For the sake of convenience the parties are referred to by the nomenclature given to them in the suit.
2. The plaintiff filed the above mentioned suit under Section 6 of the Specific Relief Act, hereinafter called the Act, for directing the defendants 1 to 4 to deliver possession of the suit property to the plaintiff with future profits. The case of the plaintiff is as follows:
The first defendant had taken on lease a large extent of vacant land bearing T.S. 1469 for 99years from the Tanjore Municipality under the lease deeds in 1926 and 1927. The 1st defendant has put up construction in a portion of the site. A vacant site under the leasehold of the 1st defendant measuring 105' east to west and 25' north to south was leased to the plaintiff by the 1st defendant for a period of 20 years to put up a building to carry on hotel business. Originally under the lease deed dated 19.6.1967 an extent east to west 80' and north south 25' was leased on a monthly rental of Rs. 400. Soon after, another 25' west of the portion demised was also leased out and also a right to use the well and latrine. The total rent payable was also agreed at Rs. 525. The terms of the lease are:
(a) It is to remain for a period of 20 years from 19.6.1987.
(b) The total rent payable is Rs. 525 per month.
(c) The plaintiff will put up the necessary building at his cost and pay the municipal tax.
(d) The plaintiff is to put up a building at a cost of Rs. 35,000 and on the expiry of the lease the 1st defendant will have the option to purchase the same at 3% depreciation.
(e) Option is given to plaintiff to demolish the building and deliver vacant site.
(f) The lease can be renewed by mutual consent. There are other terms of the lease which may not be relevant for the present. The plaintiff put up a pucca terraced building and asbestos shed and was conducting a hotel in the premises. Subsequently he entered into a partnership with 10 persons including defendants 2 to 4 and was conducting the hotel business under the name and style of 'New Saraswathi Cafe, the 5th defendant herein. Subsequently some partners resigned and the plaintiff carried on business with 5 other partners. The plaintiff granted licence to the 5th defendant partnership of which plaintiff is a partner, to carry on the business in the suit property till 18.6.1987. Thus the plaintiff was in continuous actual or constructive possession of the suit property, through the 5th defendant. The period of the lease of the site in favour of the plaintiff came to an end on 18.6.1987. The 1st defendant issued a notice to the plaintiff on 23.1.1987 calling upon the plaintiff to deliver possession of the site and building offering to pay for the building as per the covenant in the lease deed or to demolish the building and give vacant possession. The plaintiff sent a reply on 24.2.1987 requesting to renew the lease as per the covenant in the lease deed and also claimed rights under the City Tenants Protection Act, to purchase the leasehold rights of the 1st defendant. A rejoinder was sent by the 1st defendant refusing the renewal, and denying the plaintiffs rights and stated that he will take proceedings for eviction. Some slight misunderstandings arose between the plaintiff and some of the partners of the said New Saraswathi Cafe. Taking advantage of this, the 1st defendant entered into a lease arrangement with defendants 2 to 4, without obtaining possession of the building and site from the plaintiff. In the said lease deed dated 19.6.1987 the 1st defendant falsely held itself out to be the owner of the building. Admittedly the plaintiff had not surrendered possession to the 1st defendant and the 1st defendant is not the owner of the building. Under the lease deeds in favour of the defendants 2 to 4 the 1st defendant has purported to lease out the building as owner. The partnership 'New Saraswathi Cafe' of which the plaintiff and defendants 2 to 4 and some others are partners, is the licensee of the plaintiff in so far as the superstructure is concerned. Defendants 2 to 4 in active collusion with the 1st defendant and exploiting their position as partners of 'New Saraswathi Cafe' in actual charge of day to day administration, have been creating records to defeat the lawful right and enjoyment of the plaintiff. In pursuance of such manipulated records, defendants 2 to 4 having obtained a void and invalid lease in their favour in their individual capacity, in respect of the building, are giving out that their possession is no longer as the partners of 'New Saraswathi Cafe' and that they are in possession in their individual capacity under the first defendant and 'New Saraswathi Cafe' of plaintiff can have no right over the same. The 1st defendant thus purported to forcibly dispossess the plaintiff in active collusion with the defendants 2 to 4 taking the law in their own hands. The plaintiff has granted a licence to 'New Saraswathi Cafe' the 5th defendant of which he is a partner, to use the building 18.6.1987. The defendants 2 to 4 can have right of user in the property only as partners of New Saraswathi Cafe. They cannot disrupt the enjoyment of the plaintiff. M/s. New Saraswathi Cafe is added as a pro forma party against whom the plaintiff is not seeking relief in this suit. The first defendant cannot dispossess the plaintiff of, his own accord and deal with the property. The plaintiff thus being dispossessed on 19.6.1987 without his consent and not with due process of law is entitled to recover possession of the property.
* * * Paragraphs 3 to 6 omitted - Ed.
7. The lower court, on a consideration of the entire evidence on record both oral and documentary, found that the case of the defendants 2 to 4 that on 15.10.1975 they purchased the superstructure, furniture, and utensils from the plaintiff and thereafter they are in possession of the suit property in their own right is not true; that the plaintiff was in possession of the suit property through the other partners of the firm on 19.6.1987 when the first defendant executed the lease deeds in favour of defendants 2 to 4 and that the plaintiff was dispossessed by reason of the execution of the lease deeds dated 19.6.1987 by the first defendant in favour of defendants 2 to 4. Consequently the lower court granted a decree for possession in favour of the plaintiff under Section 6 of the Act against defendants 1 to 4 and further granted decree for mesne profits at the rate of Rs. 2,000 per month from 19.6.1987.
8. Aggrieved by the judgment of the lower court the defendants 2 to 4 have filed C.R.P. No. 2565 of 1989 and the first respondent has filed CRP. No. 277 of 1990.
9. Mr. T.R. Rajagopalan, learned Counsel for defendants 2 to 4 in the first place would contend that the defendants 2 to 4 are in possession of the suit property in their own right, Subsequent to the purchase of the building, furniture and utensils on 15.10.1975 under the receipt, Ex. B2 and when defendants 2 to 4 are in possession of the building etc., in their own right from 15.10.1975, the question of dispossession of the plaintiff on 19.6.1981 does not arise and, therefore, the suit filed under Section 6 of the Act is not maintainable. Learned Counsel heavily relied on the recitals in Ex. B2, Exs. B7 and A 24 in support of his contention that the defendants 2 to 4 purchased from the plaintiff all the rights with regard to the suit property which the plaintiff got under Ex. A1 from the first defendant. There is no merit in the above contention of the learned Counsel for defendants 2 to 4. The case of the defendants 2 to 4 is that the plaintiff wanted to sell the hotel including the site, building and movables, the second defendant negotiated with the plaintiff and entered into an agreement of sale under Ex. B1 for the purchase of the site, building and movables for a sum of Rs. 1,37,500 on 15.10.1975 and a sum of Rs. 25,000 was paid by the second defendant to the plaintiff as advance and when the second defendant came to know that the plaintiff is not the owner of the site, the second defendant negotiated for a fresh sale in respect of the superstructure, utensils and furniture for Rs. 60,000 and on the same day i.e., on 15.10.1975 it self the plaintiff passed a sale receipt, Ex. B2, in favour of the second defendant admitting parting with the possession of the building, furniture and movables in favour of defendants 2 to 4 after receiving a sum of Rs. 60,000 A perusal of Ex. B2 shows that in Ex. B2 there is no reference to the first agreement viz., Ex. B1 and the payment of Rs. 25,000 as advance for the sale agreement under Ex. B1. Further, in Ex. 2 there is no reference to the adjustment of the sum of Rs. 25,000 paid under Ex. B1 and the payment of the only balance of Rs. 35,000 for the second agreement in cash. The defendants 2 to 4 have not examined the attestors to Ex. B2 to speak about the circumstances under which Ex. B2 was executed and to prove the contents of Ex. B2. Exs. B3 to B5 are the partnership agreements entered into between the plaintiff, defendants 2 to 4 and others on 20.2.1977, 1.7.1988 and 6.4.1983 respectively. Exs. B3 to B5 came into existence long before the disputes arose between the parties. Exs. B3 to B5 show that the share capital contributed by the plaintiff is Rs. 4,000. There are clear and specific recitals in Exs. B3 to B5 to the effect that the plaintiff had granted permission to the partnership firm to use the building constructed by the plaintiff on the site which he got on lease from the first defendant under Ex. A1. Similarly, in Exs. A 12 to A. 19, the income-tax returns for the fifth defendant-firm for the years 1978-79 to 1985-86 it is stated that the right to use the premises upto 18.6.1987 was purchased by the partnership firm from the plaintiff. The recitals in Exs. B3 to B5 and A12 to A10 clearly go to show that the case of the defendants 2 to 4 that they have purchased the building itself on 15.10.1975 under Ex.B2 and they are in possession of the building in their own right cannot be true. On the other hand, they will only show that the plaintiff had granted permission to the partnership firm to use the building for the business of the firm. Reliance cannot be placed on Ex. A20 because, D.W. 2 in his evidence has admitted that only on his instructions it was mentioned in Ex. A20 that the building, and movables were purchased from the plaintiff. Again, in the notice, Ex. A4 dated 23.1.1987 issued by the first defendant to the plaintiff, the first defendant has admitted that the plaintiff is the owner of the building and he is in possession on the date of Ex. A4. On 6.6.1987, even before the expiry of the lease granted by the first defendant to the plaintiff under Ex. A1, the plaintiff issued a notice Ex. A8 to defendants 2 to 4 terminating the permission granted by him to sue the building for the business of the partnership firm. In the above circumstances, the lower court took into consideration the evidence on record and the probabilities of the case rightly held that the defendants 2 to 4 had not purchased the building under Ex. B2 and they are not in possession of the suit property in their own right and that the plaintiff alone was in possession of the suit property through the other partners of the firm and permitted the partnership firm to use the building for the partnership business.
10. The second contention of the learned Counsel for the defendants 2 to 4 is that possession contemplated in Section 6 of the Act is actual physical possession and Section 6 of the Act cannot be invoked unless the defendants have deprived the plaintiffs actual physical possession and in this case when the plaintiff was not in actual physical possession, the question of dispossession will not arise and the suit filed under Section 6 of the Act is not maintainable. In support of this contention learned Counsel relied on the decision reported in Sana Mia v. Prokash Chandra A.I.R. 1940 Cal. 464. I am quite unable to accept this contention of the learned Counsel for the defendants 2 to 4. The relevant part of Section 6(1) of the Act is in the fallowing terms:
If any person is dispossessed without his constant of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
Section 6 of the Act says that if any person is disposed without his consent of immovable property otherwise than in due course of law either such person who is dispossessed of the immovable property or a person claiming through him can maintain a suit. The possession contemplated in Section 6 of the Act is not mere actual physical possession but it will also include constructive possession and a person, can also maintain a suit under the said section. In the case of a landlord and tenant the landlord is in possession of the demised land or building through his tenant and when the tenant, who is in physical possession is dispossessed either the tenant who is in physical possession or the landlord who is in possession of the property let out, through his tenant, can maintain a suit in his own name, under Section 6 of the Act. While referring to the provisions of old Section 9 of the Specific Relief Act in Ratanlal Cheladhai v. Amarsingh Roopsingh A.I.R. 1929 Bom. 467, a Division Bench of the Bombay High Court has observed as follows:
There is nothing in this section to show that possession is confined to actual physical possession. In the case of a landlord and tenant, the landlord is in possession through his tenant, and, as pointed out in Virjivandas Madfiavdas v. Mahomed Ali Khan I.L.R. 5 Bom. 208, the proper remedy where exclusive occupation of, immovable property is given to a tenant is for the tenant to file a suit for possession but the landlord, if he desires to sue immediately on the possessory right, can sue in the name of that tenant and further "for an injury to the reversion, the landlord can sue in his own name.
In Kumar Kalyan Prasad v. Kulannad Vaidik , a Division Bench of the Patna High Court considering the meaning of the term 'dispossessed' used in Section 6 held as follows:
In the first instance, a mere reference to the plain language of the provision aforesaid Would indicate that the word "dispossessed" has not been used in the narrowly constricted sense of the actual physical possession of immovable property. Indeed, it talks somewhat widely of dispossession of immovable property otherwise than in due course of law without the person's consent. If the Legislature intended to narrowly limit the word "dispossessed" there could have been no difficulty by specifying in terms actuality of physical possession as its necessary and vital ingredient. The word employed is the ordinary word "dispossessed." Plainly enough it would include within its sweep actual physical dispossession also but this is no warrant for holding that it necessarily excludes the violation of other forms of possession including a symbolical possession duly delivered by law and contumaciously violated by an aggressive trespasser. On principle I am not inclined to construe the word "dispossessed" in Section 6 in any hypertechnical sense and to push it into the procrustean bed of actual physical possession only. Indeed the intent of the Legislature in Section 6 to provide early and expeditious relief against the violation of possessory right, irrespective of title, would be equally, if not more, relevant where symbolical possession delivered by due process of law is sought to be set at forthwith. On a larger and liberal construction, therefore, it seems wholly unnecessary to limit or constrict the ordinary and plain meaning of the word 'dispossessed', which is obviously wide enough to include both actual physical possession and equally a symbolical possession of immovable property which is well recognised in the eye of law. The view that I am inclined to take would receive massive support from observations in the Full Bench Judgment in Jayagopal Mundra v. Gulab Chand Agarwalla . Therein after a close analysis of Rs. 35 and 36 of Order 21 of the Civil P.C. and relying on Juggobundhu Mukherjee v. Ram Chundrk Bysack (1880) I.L.R. 5 Cal. 584 (KB.), which was affirmed in Sri Radha Krishnan Chandrajee v. Ram Bahadur A.I.R. 1971 P.C. 197(2), and equally on a string of the judgment of this Court beginning with Maharaja Pratap Udai Nath Sahi Deo v. Sunderbans Koer A.I.R. 1923 Pat. 76, it has been concluded as under:
Thus, the legal position is well settled that symbolical delivery of possession against the judgment-debtor where oven actual possession could have been delivered amounts to actual delivery of possession.
Equally reference may also instructively be made to Ramanemma v. Basavayya A.I.R. 1934 Mad. 658, whilst keeping in mind that the provisions of Section 6 of the Specific Relief Act are virtually in pari materia with the old Section 9 of the repealed Act of 1877. It was observed in the aforesaid case that if the remedy is clear under the Specific Relief Act the parties should not be driven to the onerous remedy of another suit. By way of analogy in Manikayala Rao v. Narasinghaswami , it was observed in para 12 that the delivery of symbolical possession under Order 21, Rule 36(2) would amount to an interruption of the respondent's adverse possession, It seems to follow from the aforesaid precedents that the weight of authority seems to be a pointer to the view that symbolical possession is in no way out of the ambit of dispossession envisaged and sought to be remedied by Section 6 of the Act.
The decision reported in Sona Mia v. Prokash Chandra A.I.R. 1940 Cal. 464, is distinguishable on facts. In that case the plaintiff continued in physical possession of the land in. dispute and the grievance raised by the plaintiff in that suit was that the defendants had dispossessed the plaintiff only by realising tolls from shop keepers on market days of Mondays and Fridays. The question whether constructive possession comes within the purview of Section 6 the Act did not a rise for consideration in that case. I am inclined to follow the view taken by the Division Bench of the Patna High Court in the decision referred above that the 'dispossession' otherwise than by due course of law not only of actual but also of other forms of possession including that which was merely symbolical is remediable under Section 6 of the Act. Krishnaji v. Mahomed Hussain A.I.R. 1959 Mys. 127, the Mysore High Court has held as follows:
Where as a result of collusion between the agent of the tenant and the landlord, the landlord gets possession of the leased property, it is the tenant who is dispossessed of that property without his consent and otherwise than in due course of law. In such a case the tenant is entitled to bring a suit under Section 9 of the Specific Relief Act, in his own name. And the mere fact that the tenant has a remedy by way of a suit for compensation against his agent does not mean that he is incompetent to bring a suit under Section 9 of the Specific Relief Act if he is otherwise entitled to do so.
11. The evidence in this case discloses that the plaintiff granted only permission to the fifth defendant-partnership firm in which the plaintiff, the defendants 2 to 4 and others are partners, to carry on the partnership business in the suit property and that he was in possession of the suit property through the partners who are actually carrying on the business of the partnership firm. The evidence in this case also discloses that by the notice Ex. A-8 dated 6.6.1987 the plaintiff terminated the permission granted to the firm to use the building for partnership business and subsequently the partnership was dissolved. On 19.6.1987 the defendants 1 to 4 entered into lease agreements Exs. A-10 and A-11 in and by which defendants 2to 4 became tenants under the first defendant in respect of the suit property viz., the vacant land including the building. The first defendant by executing the lease agreements Exs. A-10 and A-11 in favour of defendants 2 to 4 deprived the plaintiff of his constructive possession of the suit property without his consent and in a manner otherwise than in due course of law. The execution of the lease deeds Exs. A-10 and A-11 by the first defendant in favour of defendants 2 to 4 amounts to an injury caused to the rights available to the plaintiff under Ex. A-1 and in such circumstances the plaintiff is entitled to the relief provided under Section 6 of the Act against the first defendant and defendants 2 to 4, who are claiming the suit property through the 1st defendant. Therefore, the lower court rightly held that the plaintiff is entitled to a decree for recovery of possession of the suit property under Section 6 of the Act.
12. The third contention of the learned Counsel for the defendants 2 to 4 in that the lower court is not correct in granting a decree for mesne profits in a suit filed under Section 6 of the Act. There is substance in this contention of the learned Counsel. It is a settled position of law that in a suit for recovery of possession filed under Section 6 of the Act, the plaintiff cannot get a decree for mesne profits. Dealing with this question a Division Bench of this Court in Thavasi and Ors. v. Arumugham and Ors. 30 M.L.J. 326, has held as follows:
Thus it follows that a claim for mesne profits ought not to be made in a suit for possession under the Specific Relief Act because the plaintiff who was forcibly dispossessed could not obtain a decree for mesne profits if the defendant who dispossessed him forcibly was the true owner of the lands, the question of title could not be directly decided in that suit and a relief which depends upon title (considered a part from possession) cannot be given in such a suit.
Following the above decision of the Division Bench of this Court I set aside the lower courts decree in so far it as it relates to mesne profits. In other respects, the decree of the lower court will stand.
13. In the result, the civil revision petitions are partly allowed and the decree of the lower court is modified by setting aside the lower court's decree so far as it relates to mesne profits. In other respects, the decree of the lower court is confirmed and the civil revision petitions are dismissed. No costs.