Madras High Court
Soosaimariyaee vs S.Johnson on 12 December, 2019
Author: R.Subramanian
Bench: R.Subramanian
C.M.S.A(MD)No.40 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:12.12.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.S.A(MD)No.40 of 2017
and
S.A(MD)No.127 of 2018
and
C.M.P(MD)No.11873 of 2017
and
C.M.P(MD)No.3391 of 2018
C.M.S.A(MD)No.40 of 2017
Soosaimariyaee
Rep. by her Power Agent
J.Vasantha
W/o.D.Joseph,
No.49, West Street,
Vattakkarai,
Nagercoil, Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District. ...Appellant
Vs.
S.Johnson ...Respondent
PRAYER: Civil Miscellaneous Second Appeal filed under Order 9 of Tamil
Nadu City Tenant Act r/w 100 of Code of Civil Procedure, to set aside the
fair order and decreetal order dated 03.10.2017 in C.M.A.No.6 of 2016,
on the file of the I Additional Subordinate Judge, Nagercoil confirming the
fair order and decreetal order, dated 28.06.2016 in CTOP No.1 of 1998 in
O.S.No.469 of 1997, on the file of the Learned Principal District Munsif,
Nagercoil.
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C.M.S.A(MD)No.40 of 2017
For Appellant : Mrs.AL.Ganthimathi
For Respondent : Mr.G.Prabhu Rajadurai
for Mr.M.P.Senthil
S.A(MD)No.127 of 2018
Soosaimariyaee
Rep. by her Power Agent
J.Vasantha
W/o.D.Joseph,
No.49, West Street,
Vattakkarai,
Nagercoil, Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District. ...Appellant
Vs.
S.Johnson ...Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and Decree dated 09.02.2018 in
A.S.No.31 of 2017, on the file of learned Principal Subordinate Judge,
Nagercoil, confirming the Judgment and Decree, dated 10.03.2017 in
O.S.No.469 of 1997, on the file of the learned Principal District Munsif,
Nagercoil and thereby allow the present Second Appeal.
For Appellant : Mrs.AL.Ganthimathi
For Respondent : Mr.G.Prabhu Rajadurai
for Mr.M.P.Senthil
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C.M.S.A(MD)No.40 of 2017
COMMON JUDGMENT
Though the Second Appeal and Civil Miscellaneous Second Appeal have been directed to be heard together, it is conceded by the counsel on either side, the decision in the Civil Miscellaneous Second Appeal would govern the Second Appeal also. Hence, the Civil Miscellaneous Second Appeal is taken up for disposal first.
2. The facts that lead to the proceedings are as follows:-
One S.R.Manoharan, as plaintiff, laid a suit for ejectment in O.S.No.469 of 1997 against the appellant Soosai Mariyaee. It is claimed that the appellant's husband became a tenant in respect of the suit property, which belonged to the plaintiff S.R.Manoharan and was being administered by his mother Chellam Stephen through an un-registered lease deed dated 14.06.1967. In and by the said document, the appellant's husbad was also permitted to put up a construction not exceeding the cost of Rs.500/-. The monthly rent was fixed at Rs.100/- an advance of Rs.500/- was paid by the tenant. On 03.01.1968, the appellant's husband was permitted to put up a shed for the purpose of running a saw-mill in the suit property. The factum of lease and the permission granted are not now in dispute. The original plaintiff namely, S.R.Manoharan sought the eviction after terminating the tenancy by issuing a termination notice as required under Section 106 of Transfer of http://www.judis.nic.in 3/14 C.M.S.A(MD)No.40 of 2017 Property Act. On receipt of summons in the suit, the appellant, who was shown as defendant, since the original tenant Dasam Masilamony had died by then filed an application in CTOP No.1 of 1998 under Section 9 of the City Tenants Protection Act, 1921 (herein after referred as The Act) seeking a direction to the plaintiff/landlord to sell the property leased out to her since she has put up a construction with the permission of landlord. In the suit, namely, O.S.No.469 of 1997, the appellant filed a written statement admitting the tenancy and claimed that the suit notice being a month's notice is not valid inasmuch as Section 11 of the City Tenants Protection Act, 1921 requires three months notice for termination of lease. During the pendency of the suit, the appellant filed an application in I.A.No.1896 of 2003 seeking to amend the written statement. In the said I.A., the appellant chose to deny the title of original plaintiff namely, S.R.Manoharan and claimed that the property belonged to Chellam Stephen, Mother of S.R.Manoharan and she died leaving behind other legal heirs hence the plaintiff S.R.Manoharan will be entitled to only 1/4th share. The said amendment application was rejected. Thereafter, the plaintiff filed an additional written statement in the suit on 06.07.2008 setting out the same case as pleaded by her in I.A.No.1896 of 2003. While things stood thus, the power agent of the original plaintiff S.Johnson, the respondent herein, filed applications in I.A.Nos.1410 & 1411 of 2002 seeking to implead himself as the second plaintiff in O.S.No. http://www.judis.nic.in 4/14 C.M.S.A(MD)No.40 of 2017 469 of 1997 and as the second respondent in CTOP No.1 of 1998 claiming that the original plaintiff S.R.Manoharan had executed a settlement deed in his favour on 09.03.2002. The said applications were resisted by the appellant contending that the settlement deed being a document executed during the pendency of the suit will not convey valid title to the power agent, who seeks to be impleaded as second plaintiff. The said applications were allowed by the trial Court. Aggrieved, the appellant herein, who was the defendant in the suit and the petitioner in CTOP No.1 of 1998 filed two revision petitions in C.R.P.(MD)Nos.711 & 712 of 2003 before this Court and in the revision petitions also, she reiterated her contention that the settlement deed is invalid. Accepting the said contentions, this Court had allowed the revision petitions and dismissed the applications in I.A.Nos.1410 & 1411 of 2002. Thereafter, applications were taken out by the parties to implead the legal heirs of S.R.Manoharan. It is also seen that the legal heirs of S.R.Manoharan, the original plaintiff, had filed the suit in O.S.No.272 of 2004 claiming certain rights over the property as his legal heirs. The applications so filed in I.A.Nos.607, 608 & 609 of 2007 were allowed by the trial Court.
3.Aggrieved, the respondent herein filed four revision petitions in C.R.P.Nos.1429 to 1432 of 2007. During the pendency of the said revision petitions, there was a compromise between the parties namely, http://www.judis.nic.in 5/14 C.M.S.A(MD)No.40 of 2017 the respondent herein and the legal heirs of the S.R.Manoharan. The legal heirs of the S.R.Manoharan conceded the title of the respondent herein and withdrew the suit filed by them in O.S.No.272 of 2004. Therefore, this Court allowed the Civil Revision Petitions and eventually the respondent herein was brought on record as the second plaintiff in the suit and the second respondent in CTOP No.1 of 1998. CTOP No.1 of 1998 was resisted by the respondent contending that having denied the title of the original owner, namely S.R.Manoharan and having denied the settlement deed, dated 09.03.2002 executed by S.R.Manoharan in favour of the respondent, the petitioner namely the appellant herein is not entitled to the benefits of protection under the City Tenants Protection Act, 1921.
4. The Courts below, on consideration of the evidence on record, concluded that the denial of title of S.R.Manoharan by the appellant, would disentitle her from seeking the benefits conferred on the tenant under the provision of the Tamil Nadu City Tenants Protection Act, 1921. On the said conclusion, the Courts below dismissed the application in CTOP No.1 of 1998. Though the question of validity of notice was challenged in the suit namely, O.S.No.469 of 1997, the Courts below have come to the conclusion that since the tenant/appellant herein has denied the title of the land owner as the landlord as well as his successor in http://www.judis.nic.in 6/14 C.M.S.A(MD)No.40 of 2017 interest, she would not be entitled to benefits of Section 9 and the tenant who is not entitled to the benefits of Section 9, cannot claim a notice under Section 11. It was also found that by filing application in CTOPNo.1 of 1998 seeking benefit under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921, the appellant/tenant has waived the notice under Section 11. On the above conclusion, the Court below dismissed the CTOP No.1 of 1998 and decreed the O.S.No.469 of 1997. Aggrieved by the said concurrent findings of the Courts below, the defendant in O.S.No.469 of 1997 and the petitioner in CTOP No.1 of 1998 has come up with these two appeals.
5. I have heard Mrs.AL.Gandhimathi, learned counsel appearing for the appellant and Mr. G.Prabhu Rajadurai, learned counsel appearing for Mr.M.P.Senthil, learned counsel appearing for the caveator.
6. Mrs.AL.Gandhimathi, learned counsel appearing for the appellant would strenuously contend that the Courts below were not right in concluding that the appellant would not be entitled to the benefits conferred by the Tamil Nadu City Tenants Protection Act, 1921 on the ground that she has denied the title of the land owner. According to her, there is no denial of title, much less, wilful denial of title. She would contend that insofar as the appellant is concerned in the lease deed dated http://www.judis.nic.in 7/14 C.M.S.A(MD)No.40 of 2017 14.06.1967 was by Chellam Stephen and there was no indication that the title holder was S.R.Manoharan and not Chellam Stepehn. Therefore, according to her, the tenant/ appellant was under a bonafide impression that Mrs.Chellam Stephen had title and on her death by devolution her other legal heirs are also entitled to a share. Therefore, S.R.Manoharan, who is one of the children, is entitled to 1/4 th share and not the entire property. She would also point out that this plea was a bonafide plea taken by the the tenant. On the question of denial of title of the second plaintiff. Mrs.AL.Gandhimathi, learned counsel for the appellant would submit that the second plaintiff claimed title under settlement deed under S.R.Manoharan during the pendency of the suit, so she was well within her right to contend that a transfer pending suit is not valid. Therefore, according to Mrs.AL.Gandhimathi, there was no denial of title and hence the Courts below were not right in concluding that the so called denial of title would disentitle the appellant from claiming benefits of Section 9 of the Tamil Nadu City Tenants Protection Act, 1921,
7. Contending contra, Mr.G.Prabhu Rajadurai, learned counsel appearing for Mr.M.P.Senthil, learned counsel for the respondent would contend that none of the questions of law suggested by the appellant would arise in the case on hand. In the original written statement filed in the suit in the year 1998, the appellant had categorically admitted the http://www.judis.nic.in 8/14 C.M.S.A(MD)No.40 of 2017 title of S.R.Manoharan and also filed an application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 against him. However, subsequently, she chose to deny the title and sought to amend the written statement by including the denial of title. Even after rejection of the said application seeking amendment, the appellant persisted with the denial by filing an additional written statement setting up the title in Chellam Stepen and claimed that on her death, by devolution, her other legal heirs are entitled to a share. Mr.G.Prabhu Rajadurai would further point out that the appellant has not only denied the title of S.R.Manoharan, but she also denied the title of second plaintiff by disputing the settlement deed, dated 09.03.2002 and claiming that being a lis pendens transfer the same is not valid. Mr.G.Prabhu Rajadurai, learned counsel would draw the attention of this court that the definition of 'landlord' under Section 2 of the Tamil Nadu City Tenants Protection Act, 1921 which reads as follows:-
“Section 2 (3) 'Landlord' means any person owning any land, and includes every person entitled to collect the rent of the whole or any protion of the land, whether on his own account or on behalf of or for the benefit of any other person, or by virtue of any transfer from the owner or his predecessor in title or of any order of a competent Court or of any provision of law.”
8. According to Mr.G.Prabhu Rajadurai, a reading of definition would show that even a lis pendens transferee would become a landlord and a http://www.judis.nic.in 9/14 C.M.S.A(MD)No.40 of 2017 tenant, who denies the title of the landlord, is not entitled to the benefits of protection or benefits conferred under the Act.
9. I have considered the rival submission.
10. No doubt, in the original written statement filed in the suit, the appellant did not dispute the title of the original plaintif S.R.Manoharan. However, unfortunately for the appellant she thought that she had better legal advise to file an application seeking amendment of the written statement denying the title of the plaintiff/landlord and setting up a title in some other person. Though her attempt to amend was rejected by the Court, she persisted with the denial by filing an written statement in the said suit. At the same time, the petition in CTOP No.1 of 1998 was not sought to be amended, it shows that the appellant was taking an inconsistent stand. In fact, a specific allegation is made in the CTOP No.1 of 1998 to the effect that the lease of the property was obtained by the tenant from Mrs.Chellam stephen, the mother of the original first plaintiff, who was looking after the affairs of the first plaintiff at that time. Therefore, the appellant was aware of the fact that the Chellam Stephen was only representing the interest of S.R.Manoharan. Therefore, the claim of the learned counsel for the appellant that the lease deed did not disclose the interest of S.R.Manoharan in the property and therefore, she http://www.judis.nic.in 10/14 C.M.S.A(MD)No.40 of 2017 was justified in taking a stand that the property belongs to the Chellan Stephen and on her death, devolved on her four children and as such, he would get only 1/4th share in the property, cannot be countenanced as it smacks of malafides. Having averred that Chellan Stephen leased out the property as a representative of S.R.Manoharan in 1967 in CTOP No.1 of 1998 it was not open to the appellant to take a diametrically opposite stand in the suit and claim that the Chellam Stephen was owner of the property and S.R.Manoharan as son has only 1/4th share. It is settled law that denial of title of tenant would disentitle her/him from claiming the benefits conferred under the provisions of the Tamil Nadu City Tenants' Protection Act, 1921. The said legal position is not disputed by the counsel on either side. So the only question that arises for decision in this appeal is as to whether there was denial of title of original plaintiff by the tenant. As pointed out earlier, there was a denial and the denial was persisted with by the appellant. Both the Courts below had analysed the evidence in proper perspective and come to the factual finding that there was a denial of title of the original plaintiff by the appellant and as such, she would not be protected under Section 9 of the Tamil Nadu City Tenants' Protection Act, 1921. Despite her best efforts, the learned counsel for the appellant is unable to point out any non-consideration of evidence or mis-consideration of evidence on record by the Courts below in order to classify the findings as perverse and therefore, I am of the http://www.judis.nic.in 11/14 C.M.S.A(MD)No.40 of 2017 considered opinion that, this Court sitting in Second Appeal cannot interfere with the concurrent findings of the fact, which is not shown to be perverse. I do not find any question of law much less substantial question of law in order to enable me to entertain the appeal, hence the Civil Miscellaneous Second Appeal is dismissed without being admitted. No costs. Consequently, connected miscellaneous petition is closed. S.A.(MD)No.127 of 2018
In view of the dismissal of the Civil Miscellaneous Second Appeal concluding that the appellant is not entitled to the benefits Section 9 of the Tamil Nadu City Tenant's Protection Act, 1921 the suit for eviction will have to be necessarily decreed having been instituted after issuing a valid notice under Section 106 of Transfer of Property Act. The Courts below have also come to the conclusion that the claim for notice under Section 11 of the Act is not tenable and as such, notice issued terminating the tenancy is valid. Hence, the Second Appeal also fails and it is dismissed. However, there will be no order as to costs.
Index : Yes/No 12.12.2019
Internet : Yes/No
am
http://www.judis.nic.in
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C.M.S.A(MD)No.40 of 2017
To
1.The I Additional Subordinate Judge,
Nagercoil.
2.The Principal District Munsif,
Nagercoil.
3.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
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C.M.S.A(MD)No.40 of 2017
R.SUBRAMANIAN, J.
am
C.M.S.A(MD)No.40 of 2017
and
S.A(MD)No.127 of 2018
12.12.2019
http://www.judis.nic.in
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