Madras High Court
G.Krishnamurthy vs Sarangapani on 7 December, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 07.12.2012
CORAM
THE HONOURABLE MR.JUSTICE M.VIJAYARAGHAVAN
Second Appeal No.872 of 1999
and
Cross Appeal No.25 of 2006
S.A.No.872 of 1999
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1.G.Krishnamurthy
2.G.Lakshmanan
3.G.Ramadass .. Appellants
Versus
1.Sarangapani
2.P.Chakkravarthy (Given up)
(R2 given up vide order of
Court dated 27.9.2012 made
in S.A.No.872/1999) .. Respondents
Prayer: Appeal filed under section 100 of the Civil Procedure Code against the judgment and decree dated 26.4.1999 and made in AS No.21 of 1998 on the file of Principal District Judge, Pondicherry, confirming the judgment and decree dated 17.9.1997 and made in O.S.No.340 of 1990 on the file of II Additional District Munsif at Pondicherry.
CROSS Appeal No.25 of 2006
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Sarangapani .. Cross Appellant
Versus
1.G.Krishnamurthy
2.G.Lakshmanan
3.Chakravarthy .. Respondents
Prayer: Cross Appeal filed under Section 41 Rule CPC praying that this Court may be pleased to allow the cross appeal and decree the plaintiff suit for mesne profits and exemplary costs.
For Appellants : Ms.A.Sathyabama
(in S.A.and Respondents for Mr.T.R.Rajaraman
in Cross Objection)
For Respondent : Mr.V.Srikanth
(in S.A. And appellant for Mr.P.Nethaji
in Cross Appeal)
J U D G M E N T
This appeal arises out of the Judgement and Decree, passed by the First Appellate Court, in A.S.No.21/1998 dated 26.04.1999, in confirming the Judgement and Decree passed by the Trial Court, in O.S.No.340 of 1990, dated 17.09.1997.
2.For the better appreciation of this appeal, the brief averments in the plaint, as well as in the written statement are reproduced here under:
3.The brief averments in the plaint is as follows:
4.The dry land described in 'A' schedule property originally belonged to one Kumarasamy Gounder, who purchased the same by notaire sale deed, dated 9.1.1961 ,from one Saminatha Gounder and after the death of the said Kumarsamy Gounder, his son Pushpanatha Gounder was in possession and enjoyment of the same. The first defendant got the lease initially from the Pushpanatha Gounder a portion of 'A' schedule property to run workshop and a registered Sale Deed, dated 14.12.1968 was entered into with regard to 'B' schedule property and the lease was come into effect from 1/1/1969 for a period of ten years and the first defendant agreed to pay a monthly rent of Rs.15/- for the first year and Rs.20/- for the next five years and a Additional area was also leased out subsequently and the first defendant had subsequently subleased entire 'B' schedule property to the defendants 2 to 4, after making payment of Rs.25/- as monthly rent. The said Pushpanatha Gounder sold the 'A' Schedule property to the plaintiff by registered Sale Deed,dated 21.08.1988 and the Plaintiff took the possession of the same, barring the portion of 'A' schedule property detailed in the 'B'Schedule property which is in possession and enjoyment of the defendants 2 to 4. The Plaintiff requested the defendants to vacate the possession of the 'B'Schedule property to enable the Plaintiff's wife to expand educational activities i.e. School. The Plaintiff issued notice, dated 02.04.1989 terminating the tenancy of the defendants and demanded vacant possession on or after 1.1.1990, for which the defendants sent a reply disputing the landlord-tenant relationship, by stating that they are the absolute owners for more than thirty years for 'B'Schedule property. The plaintiff therefore prays to declare the plaintiff as the absolute owner of the 'A' Schedule property and direct the defendants 1 to 4 to deliver the possession of the 'B' Schedule property after removing superstructure and for costs and to pay future mesne profits at the rate of Rs.100/- per month from the date of plaint till delivery of possession.
5.The defendants 2 to 4 denied the plea of tenancy alleged by the Plaintiff. The first defendant was not a tenant in respect of the property in question and moreover these defendants were not sub-tenants under the first defendant as alleged. The Plaintiff is put to strict proof of the claim as that Saminatha Gounder was the real owner of the property. Neither Saminatha Gounder nor Kumarasamy had possession of the property and therefore ultimately the claim that Pushpanatha Gounder had the possession and leased it out to the first defendant initially some part of it and later it was expanded are without merit and sustainability. No rent was claimed and paid. These defendants are not sub-lessees of the first defendant and the first defendant never built anything in the land in question. These defendants on their own accord had put up a superstructure in the property which is in their possession and enjoyment for more than thirty years by their hostile enjoyment of the property as real owners for the last thirty years and thereby the title by prescription has accrued to them. These defendants are enjoying the property right from the time of their father and constructed a super structure at a cost of Rs.25,000/- to Rs.30,000/-carrying on the Motor repairing workshop. The plaintiff has no right or title or interest over the property and seeking relief of eviction over it. The defendants prays the suit to be dismissed with costs.
6. As against the concurrent Judgement of the Trial Court, as well as the First Appellate Court, the defendants 2 to 4 preferred this second appeal. The following questions of law are raised.
1)Whether the judgment of the courts below in granting the relief to the plaintiff is opposed to the very evidence of P.W.1 himself?
2)Whether the defendants have perfected their title by adverse possession?
7. The respondent/plaintiff in this Second Appeal has also filed a cross objection and the same was numbered as 25 of 2006 by raising the two questions of law:
1.Whether the non inclusion of the direction for mesne profits in the decree in conformity with the judgement not erroneous?
2.Whether the direction for payment of exemplary cost by the trial court could be interfered with by the appellate court even without assailing the same by specific valuation and payment of court fee?
8. Even though the Second Appeal was admitted and the cross objection Appeal filed was duly numbered, so far no question of law has been raised in the cross appeal. Hence, today this Court formulate the question of law.
9.No doubt with regard to the mesne profit, the Trial Court has affirmed the same and answered the specific issue in favour of the plaintiff and thereby the Trial Court also granted Judgement as prayed for by the Plaintiff. No doubt there is no clause incorporated in the decree drafted by the Trial Court and the same position is also in the decree drafted by the First Appellate Court. Eventhough the appeal was dismissed, after confirming the Trial Court Judgement & decree is an executable one, passed on the text, of the judgement delivered and any omission occurred while drafting the Decree by the officer of the Court concerned shall not deprive the parties about their right conferred in the judgement. Hence, absolutely there is no necessity to raise this first substantial question of law with regard to the inclusion of mesne profit in the decree as rightly granted by the Trial Court in its Judgement and affirmed by the First Appellate court Hence, the only one substantial question of law is raised by this Court, viz., "Whether the direction for payment of exemplary cost by the trial court could be interfered with by the appellate court even without assailing the same by specific valuation and payment of court fee?"
10. It is the definite case of the Plaintiff that the 'A' schedule property was originally purchased from Saminathan in a registered Sale Deed, dated 09.01.1961 and the said Swaminathan sold the same to Kumaraswamy Gounder under Sale Deed, dated 13.01.1961, which is marked as Ex.A1 and the said Kumaraswamy Gounder, son of Pushpanatha Gounder leased out the entirely the 'B' Schedule property to the first defendant and thereafter subsequently extended the area and leased out the same and there is also lease agreement to that effect and thereafter the plaintiff got the sale deed of the 'A' schedule property under Ex.A3,dated 21.12.1988 and he is in possession and enjoyment of the 'A' schedule property, excepting the 'B' schedule property which is in possession and occupation of the first defendant entirely and thereafter by defendants 2 to 4 as lessor and lessee. No doubt the parental agreement of Sale Deed originally in the name of Kumarasamy Gounder has not been produced. But the registration copy of the same is produced and marked as Ex.A1, without any objection. Moreover, the sale deed obtained by the plaintiff from Pushpanatha Gounder, dated 21.12.1988 is also marked as Ex.A3 through P.W.1 and the said Pushpanatha Gounder was also examined as P.W.3 and he is also very well spoken about the execution of this document, original Sale Deed in favour of the plaintiff and nothing culled out from the oral evidence of P.W.3 in support of the case of the defendants. Moreover, it is also pertinent to note that the said P.W.3 has also spoken about the leased out of the 'B' schedule property to first defendant entirely and thereafter the said Chakravarthy brought the D2 to D4 to P.W.3 to lease out the said property and such lease transaction has been affirmed and adorned by P.W.3 and this important piece of evidence has not been shaken. Thus, there is also valid evidence on record both oral and documentary and nothing wrong in arriving the decision with regard to the title over the 'A' schedule property and the possession of 'B' schedule property, entirely by the first defendant and thereafter by the defendants D2 to D4 in their capacity as lessee. Eventhough, it is a strong case of the defendants 2 to 4 that they are in possession and enjoyment of the property from his father's time and subsequently in possession of the same for the past 30 years that too to the hostile of real owner and derived the title by way of adverse possession, absolutely there is no averment about who is the real owner of the schedule property according to them and no valid or cogent evidence is also produced to substantiate their claim of title over the property. Moreover, there is also evidence by P.W.5, the Assistant Engineer, Electricity Department and he had spoken about the electricity connection got in the name of the first defendant and continued to be in the name of the first defendant. It had also strengthened the case of the Plaintiff that originally the property was leased out to the first defendant and subsequently in possession and occupation of the defendants 2 to 4 as put forth by the Plaintiff.
11. The learned counsel for the respondent had submitted that the First Appellate Court has rightly come to the conclusion based on the evidence on record both oral and documentary and there is no error and hence this Court cannot substitute the opinion of the First Appellate Court and set pointed out the decision of the Hon'ble Supreme Court in Mst.Sugani Versus Rameshwar Das and another (2006(3) CTC 108).
12. In the above cited Judgement the Hon'ble Apex Court held as follows:
"23.It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witness accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal, when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law."
13. The above Judgement cited by the learned counsel for the respondent squarely apply to the facts and circumstances of the case and with due respect after following the same, this Court holds that the questions of law raised by this Court are not substantial questions of law, after taking into consideration the facts and circumstances of the case and since no question of law is involved in this appeal, the appeal deserves to be dismissed after confirming the concurrent finding of the Trial Court and the First Appellate Court.
14. No doubt, with regard to the mesne profit as rightly claimed by the Plaintiff in their plaint and granted by both the Trial Court and the First Appellate court has also been confirmed and no doubt during pendency of the second Appeal, this Court in C.M.P.No.8838 and 12255 of 1999, dated 24.08.1999, in allowing the stay application ordered the petitioner/appellant herein to deposit a sum of Rs.50,000/- before the Trial Court and also directed the petitioner to continue to deposit a sum of Rs.500/- per month till the disposal of the Second Appeal. There is also observation by this Court that the entitlement of the amount deposited will be decided at the time of disposal of the suit.
15. At this stage, this Court is not in a position to know under what circumstances a sum of Rs.500/- has been ordered and hence the mesne profit shall be decided in a separate application by the Trial Court and fix the rent and the parties are at liberty to adduce, the evidence in the proceedings to be initiated by the Trial Court. Moreover, the amount already deposited and continued to be deposited by the Appellant shall also be adjusted to the amount arrived at by the Trial Court. With regard to the substantial question of law raised in the cross objection/Appeal with regard to the compensatory cost awarded by the trial Court, the learned counsel for the respondent fairly admitted that he is not pressing the above question of law and in view of the same this question of law is decided as against him and answered accordingly. Six months time is granted for vacating and removing the superstructure and handing over the possession.
arr To
1.The Principal District Judge, Pondicherry
2.The II Additional District Munsif Pondicherry