Madras High Court
Johnson vs Chathan Eravi Ollittar Trust on 4 December, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/12/2007 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.637 of 2007 and M.P.(MD).No.1 of 2007 Johnson ... Appellant Vs. 1.Chathan Eravi Ollittar Trust, Urithiran Kalkandan Sasthankoil Family Trust, Rep. by its Trustees, Rajakkamangalam, Agasteeswaram Taluk, Kanniyakumari District. 2.R.Subramonia Pillai, Father's name not known, Trustee Chathan Eravi Ollittar Urithiran Family Trust, Rajakkamangalam, Agasteeswaram Taluk, Kanniyakumari District. 3.C.Manikandan ... Respondents PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the decree and judgment dated 30.01.2006 made in A.S.No.87 of 2005, on the file of the Second Additional Subordinate Judge, Nagercoil, confirming the decree and judgment dated 30.03.2005 made in O.S.No.255 of 2001 on the file of the Principal District Munsif, Nagercoil. !For Appellant ... Mr.K.P.Narayana Kumar ^For Respondents ... Mr.E.V.N.Siva :JUDGMENT
The plaintiff who lost his case in both the Courts below has preferred this second appeal against the judgment and decree of the Second Additional Subordinate Judge, Nagercoil, dated 30.01.2006 made in A.S.No.87 of 2005 by which the decree of the trial Court, namely the Principal District Munsif Court, Nagercoil dismissing O.S.No.255 of 2001 by its judgment and decree dated 30.03.2005, was confirmed.
2. The appellant herein had filed the original suit praying for the relief of permanent injunction restraining the respondents 2 and 3/defendants 2 and 3 from interfering with the plaintiff's possession and enjoyment of the suit properties which are five in number, presumably based on his claim of protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955. Admittedly, the appellant/plaintiff is a tenant in respect of the suit properties. The suit properties are agricultural lands and the same have been leased out to the appellant/plaintiff for the purpose of cultivation. The following are the plaint averments:
(i) The first respondent trust is the owner of the suit properties and the father of the appellant/plaintiff, by name Annaprakasam, who took the suit properties on lease from the trust, was cultivating the same from the year 1982 till his death in the year 1995. Though the then trustees of the first respondent trust used to collect the rent in kind, namely paddy at the threshing floor itself, they did not issue any receipt for the same. The said practice continued till the year 1998 in which year the appellant/plaintiff insisted upon passing a receipt for the rent collected by the trustees. Therefore, for the subsequent crops, receipts were issued on 05.03.1998, 16.10.1998, 27.03.1999, 28.09.1999 and 04.03.2000 by the then trustees.
(ii) In the month of August 2000, the appellant/plaintiff informed the trustees of the first respondent trust, by a letter dated 29.08.2000 addressed to them, to come and collect the rent. But the trustees, in turn, against the practice which had been followed till then directed the plaintiff to pay the rent in the trust office. As the transportation of paddy involved incurring cost for the same, the plaintiff insisted upon measuring the paddy at Kakamoor itself. But the same was not done.
(iii) While so, the respondents 2 and 3, who are the present trustees of the first respondent trust, issued a notice on 20.09.2000 through their counsel containing false allegations. As there was no positive response after a suitable reply was given, the plaintiff was constrained to sell the paddy to be paid as rent for a sum of Rs.7,000/- and sent it by way of a demand draft on 05.12.2000 to the second respondent. For the subsequent crop, the rent (bottom) was measured at Kakamboor on 08.03.2001 for which he got a receipt from the third respondent/third defendant.
(iv) While so, with an ulterior motive, the respondents 2 and 3/defendants 2 and 3, with a view to swallow a sum of Rs.12,000/- which had been remitted by the appellant/plaintiff as deposit, instructed the appellant/plaintiff to hand over the property without assigning any reason on 22.04.2000 at 12.00 noon. As the same was done with an intention of inducting strangers as tenants in the suit properties and steps were taken by the respondents 2 and 3 in that direction, the plaintiff had to approach the Court for a bare injunction against the respondents 2 and 3/defendants 2 and 3 restraining them from interfering with the plaintiff's possession and enjoyment of the suit properties.
3. The suit was resisted by the respondents/defendants denying the plaint averments regarding the extent of the property leased out to the father of the plaintiff and the averment that the rent had been paid by the appellant/plaintiff after the death of his father till the year 1998. The rent receipts produced by the appellant/plaintiff were also challenged as documents brought out pursuant to a collusion between the appellant/plaintiff and the erstwhile trustees who had not handed over any books of account or other relevant records of the trust to the present trustees, namely the second and third respondents. It was the further contention of the respondents/defendants that since the appellant/plaintiff was a defaulter in payment of rent and huge amount was due towards payment of rent, the respondents had to file a suit in O.S.No.707 of 2000 on the file of the Court of the Principal District Munsif, Nagercoil for recovery of the amount and the present suit was filed as a counter-blast for the above said steps taken by the respondents/defendants. It was the definite contention of the respondents/defendants that the appellant/plaintiff, being a defaulter in payment of rent, shall not be entitled to the equitable relief of injunction and that hence the suit should be dismissed.
4. The trial Court framed necessary issues and conducted trial. At the conclusion of trial, on an appreciation of evidence, the trial Court held that the cause of action for the suit was not proved and hence the plaintiff was not entitled to the relief of permanent injunction and based on the said finding, dismissed the suit. On appeal, the learned Second Additional Subordinate Judge, Nagercoil confirmed the judgment and decree passed by the trial Court and dismissed the appeal in A.S.No.87 of 2005 by his judgment dated 30.01.2006. Aggrieved by the same, the present second appeal has been preferred.
5. Heard the submissions made by Mr.K.P.Narayanakumar, learned counsel appearing for the appellant and also by Mr.E.V.N.Siva, learned counsel appearing for the respondents and perused the material available on record including the judgments of both the Courts.
6. Admittedly, the appellant/plaintiff is in possession and enjoyment of the suit property as tenant. He has filed the suit praying for a decree of perpetual injunction against the respondents 2 and 3/defendants 2 and 3 not to disturb his peaceful possession and enjoyment. According to the appellant/plaintiff, respondents 2 and 3, being the present trustees of the suit properties, attempted to dispossess him with an intention to let out the suit property to some other person for a higher rent. It is not in dispute that the suit property is a trust property belonging to the first respondent/first defendant trust. It is also not in dispute that the respondents 2 and 3 are the present trustees. It is also not disputed that the respondents 2 and 3, as trustees of the first respondent trust and on behalf of the trust, filed a suit for recovery of arrears of rent from the appellant/plaintiff. The said suit O.S.No.707 of 2000 was decreed against the appellant/plaintiff as admitted by the plaintiff while deposing as P.W.1. According to the case of the respondents/defendants, the arrears of rent has accumulated to the tune of Rs.1,70,000/-. Whatever be the amount outstanding as arrears of rent, it is not in dispute that the appellant/plaintiff is a defaulter in payment of rent and the amount decreed by the Court in O.S.No.707 of 2000 also has not yet been paid. Under these circumstances, the Courts below have rightly held that the appellant/plaintiff being a defaulter in payment of rent, and having failed to pay even the decreed rent is not entitled to the equitable relief of permanent injunction against the trustees of the first respondent trust which is the real owner.
7. The Courts below have also rightly held that the appellant/plaintiff chose to file the suit only as a counter-blast for the suit instituted by the present trustees of the first respondent trust for the recovery of arrears of rent. There is no clear cut evidence adduced by the appellant/plaintiff that the defendants 2 and 3 are acting in their personal capacity and not as trustees of the first respondent trust in their alleged attempt to disturb his possession. As such, the suit filed seeking injunction against the respondents 2 and 3 alone and not against the first respondent trust, has been rightly held by the Courts below, as 'misconceived' and 'filed with ulterior motive'. Further more, there are evidence to show that the respondents 2 and 3 as present trustees of the first respondent trust, have taken steps for the recovery of arrears of rent that too through a Court of law. On the other hand, the alleged attempt to forcibly dispossess the appellant/plaintiff has not been substantiated by reliable evidence. The Courts rightly held that the alleged attempt constituting cause of action for the suit was not substantiated by the appellant/plaintiff. The concurrent finding of fact of the Courts below in this regard cannot be interfered with in this second appeal.
8. Apart from the finding that the appellant/plaintiff had not proved the cause of action for the suit, the Courts below have also assigned the following reasons for non-suiting the appellant/plaintiff. They are:
(i) The appellant/plaintiff has not proved him to be a cultivating tenant;
(ii) As per the scheme framed by the Court for the management of the properties of the first respondent trust, lease could be granted for one year period alone and for each year fresh lease deed should be executed, whereas it is not so in the case of appellant/plaintiff and hence he cannot legally claim to be a lessee; and
(iii) The appellant/plaintiff, being a defaulter in payment of rent, cannot get the equitable relief of injunction against the real owner.
9. The learned counsel for the appellant would contend that though the respondents are the real owners of the suit property, the appellant/plaintiff being admittedly a tenant in possession shall be entitled at least to a limited injunction not to dispossess except adopting due process of law, despite the fact that he has prayed for a blanket injunction. He has also contended that the existence of the scheme decree has also not been proved as no certified copy of the scheme decree was produced by the respondents. The lower Courts, on a proper appreciation of evidence, have clearly held that the existence of a scheme decree incorporating the conditions of lease has been clearly proved by the evidence of the witnesses examined by the respondents and the admission made by P.W.2 who is none other than a former trustee of the first respondent trust. The respondents have alleged collusion between the former trustees and the appellant/plaintiff. While so, the appellant/plaintiff has chosen to examine one of the former trustees as P.W.2. But P.W.2 has made clear admission to the effect that the trust is governed by a scheme decree passed in O.S.No.104/1128 (M.E.) and as per the said decree, lease could be granted for one year alone. On the other hand, P.W.2 would say that though there is a scheme decree, they got power to grant a lease for a longer period as they were authorized by the general body of the trust. But a copy of such resolution has not been produced. The Courts below have rightly held that the scheme decree cannot be altered by a resolution of general body. Further more, the Courts below have also rightly held that the appellant/plaintiff would not be entitled to the relief of injunction when it is not proved that the respondents have done anything except taking steps to recover the arrears of rent through Court. The Courts below have also rightly held that the appellant shall not be entitled to injunction against the landlord so as to pre-empt the landlord from taking steps to evict the appellant (tenant) on the ground that he is in arrears of rent and that the continuance of the lease is in violation of the scheme decree. Under these circumstances, the contention of the learned counsel for the appellant that the appellant should be granted at least a lesser relief, not to disturb his possession except following due process of law even though he has prayed for a larger relief, deserves to be rejected as untenable. There is no substantial question of law involved in the second appeal. Concurrent findings of fact of the Courts below cannot be disturbed. There is no merit in the second appeal and the same deserves to be dismissed.
10. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.
SML To
1.The Second Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.