Madras High Court
Nazir Mohamed ... Deft/Respt/ vs Jambarlal Jain (Died) on 6 November, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/11/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.(MD)No.64 of 2000 & S.A.(MD)No.558 of 2000 Nazir Mohamed ... Deft/Respt/Appellant (Appellant in S.A.64/2000) and (Respondent in S.A.558 of 2000) Vs. 1.Jambarlal Jain (died) 2.J.Kamala 3.S.J.Madanraj Jain 4.M.Vimala ... Pltfs./Appellants/Respts (Respondents in S.A.64 of 2000) and (Appellants in S.A.558 of 2000) (R2 to R4 are brought on record as LRs of the deceased sole respondent vide order of Court dt.13.10.2008 made in M.P(MD).No.1 of 2008.) PRAYER IN S.A.64/2000 Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the Subordinate Judge, Kumbakonam in A.S.No.16 of 1998 dated 17.09.1999 reversing the judgment and decree of the District Munsif, Valangaiman at Kumbakonam in O.S.No.169 of 1994 dated 22.01.1998 praying that the same may be set aside and that of the judgment of the trial Court be restored. PRAYER IN S.A.558/2000 Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 17.09.1999 passed in A.S.No.16 of 1998 n the file of the learned Subordinate Judge of Kumbakonam partly reversing the Judgment and Decree dated 22.01.1998 passed in O.S.No.169 of 1994 on the file fo the learned District Munsif of Valangaiman at Kumbakonam. !For Appellant ... Mr.T.Srinivasa Rahavan, Advocate (in S.A.64/2000 and Respondent in S.A.No. 568/2000) ^For Respondents... M/s.Sarvabhauman Associates (in S.A.64/2000 and Appellant in S.A.No. 568/2000) :COMMON JUDGMENT
Both the appeals have been directed against the decree and judgment in O.S.No.169 of 1994 on the file of the Court of District Munsif, Valangaiman at Kumbakonam. As against the dismissal of the suit in respect of the delivery of possession in respect of half share of the plaint schedule property, the plaintiff has preferred S.A.No.558/2000. In respect of a decree for one half share of the plaint schedule property the defendant has preferred the Second Appeal in S.A.No.64/2000.
2.The averments in the plaint in brief sans irrelevant particulars are as follows:-
The plaintiff is the owner of the house and the site bearing Door No.4 in R.S.No.120/13 at Mela Senia Street, Aduthurai, which is the plaint schedule property. The plaintiff's father had purchased the plaint schedule property under a registered sale deed dated 07.09.1940. The property was originally let out to the defendant's father Thiru. M.Abudul Aziz for a monthly rent of Rs.25/. After the death of the defendant's father M.Abudul Aziz, the defendant has attorned the tenancty in favour of the plaintiff for the same monthly rent of Rs.25/- and the defendant had agreed to pay the Panchayat Tax for the suit house. The defendant committed default in payment of rent. The arrears of rent come to the tune of Rs.1,225/- upto February- 1994. But the plaintiff restricted his claim for three years i.e., Rs.900/- only. Now, the defendant is making all efforts to get patta in his name. Hence, the defendant is liable to be evicted for denial of the plaintiff's title in respect of the suit property. The plaintiff has also issued a suit notice on 23.03.1994 demanding the defendant to pay the arrears of rent and also to vacate and handover the delivery of possession of the property. In spite of receipt of the said notice, the defendant refused to handover the delivery of possession but, has sent a reply with false contention. Hence, the suit for declaration and for possession.
3.The defendant in his written statement would contend that the plaintiff is not the owner of the house and site bearing Door No.4, in RS.No.120/13, Mela Senia Street, Aduthurai. This defendant is not a tenant under the plaintiff in respect of the plaint schedule property. There was no attornment of tenancy in favour of the plaintiff by this defendant. This defendant is the absolute owner of the plaint schedule property, which was purchased by the defendant's father Abdul Aziz by a registered sale deed dated 17.02.1938 for a valuable consideration. The defendant is in possession and enjoyment of the plaint schedule property from the date of purchase of his father. The defendant is not in possession of the plaint schedule property as a tenant but as an absolute owner. The defendant has not paid any rent to the plaintiff or to his father. The suit property was never assessed in the name of the plaintiff's father but was assessed only in the name of the defendant's father Abdul Aziz. The defendant got this property from his father under a registered lease deed dated 24.03.1966. From that date onwards, this defendant is in enjoyment of the suit property with absolute right. The property tax has now been assessed in the name of this defendant. No question of denial of title arises in this case. The sale deed filed by the plaintiff should be in respect of some other property and not for the suit property. This defendant's father's sale deed is prior to the plaintiff's father's alleged sale deed. The plaintiff has not mentioned the date of commencement of tenancy and also the date of attornment. The defendant is not bound to deliver the possession of the suit property and he has also not liable to pay any amount towards arrears of rent. Hence, the suit is liable to be dismissed with costs. On the above pleadings, the learned trial judge had framed three issues for trial.
4.The plaintiff has examined himself as P.W.1 and exhibited Exs.A1 to A6. The defendant has examined himself as D.W.1 besides examining one Md.Ali, D.W.2. On the side of the defendant, Exs.B1 to B.34 were marked.
5.After meticulously going through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that there was no landlord tenant relationship between the parties, had dismissed the suit without costs. Aggrieved by the finding of the learned trial Judge, the plaintiff preferred an appeal in A.S.No.16/1998 before the Subordinate Judge, Kumbakonam. The learned first appellate Judge, after giving due deliberations to the submissions made by the counsel on both sides and after scanning the evidence both oral and documentary placed before the learned trial Judge, had partly allowed the appeal thereby declaring the plaintiff's one half right in respect of the plaint schedule property and dismissed the relief of recovery of possession and also relegated the question of mesne profit to a separate proceedings under Order 20, Rule 12 CPC with a direction that the plaintiff can claim mesne profits only in respect of three years prior to the date of filing of the suit with costs. The Defendant has preferred S.A.No.64 of 2000 against the said decree and judgment of the learned first appellate Judge and the plaintiff has preferred S.A.No.558 of 2000 in respect of dismissal of the suit for recovery of possession.
6.The following substantial questions of law are involved in this Second Appeal:-
"1.Whether the Lower Appellate Court is right in refusing the relief of possession especially when the Lower Appellate Court granted a relief of mesne profits till delivery of possession?
2.Whether the Lower Appellate Court is right in holding that the plaintiff is entitled to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title in the instant case.?"
7.Substantial Question of Law No.2:-
According to P.W.1, the plaint schedule property originally belonged to one Rajagopala Pattar under a Court sale from whom his (P.W.1's) father had purchased the same under Ex.A1, sale deed. Ex.A2 is the sale certificate, which reveals that in an execution of a decree in S.C.No.753/1931 half right in the house situated in Natham S.No.120/13, Mela Senia Street, Aduthurai, was sold in the Court auction in favour of Rajagopala Pattar, the auction purchaser, for a co-operative loan taken by the defendant. Ex.A3 is the delivery certificate for Ex.A2 sale certificate. It is pertinent to note that the defendant's father viz., Abdul Aziz Sahib is an attestor to Ex.A3, Sale Certificate. Ex.A1 is the sale deed in favour of the plaintiff's father dated 07.09.1940 executed by Rajagopala Pattar, the decree holder/Court auction purchaser of one half of the plaint schedule property, under Exs.A2 and A3 to discharge a loan under a promissory note, the said Rajagopala Pattar, had executed Ex.A1, Sale deed in favour of the plaintiff's father Suklal Chouhar, after referring the court sale in favour of him in E.P.341/92 in S.C.No.753/1931. But the recitals to the schedule of property sold under Ex.A1, the vendor had described the entire house in Natham S.No.120/13, Mela Senia Street, Aduthurai, instead of scheduling half of the property he had purchased under the Court auction sale under Exs.A2 and A3. Only under such circumstances, the learned first appellate Judge has correctly held that the plaintiff is entitled to a declaration of his title only in respect of half of the plaint schedule property under Ex.A1 and not in respect of the entire property. Per contra, it is the case of the claim of the defendant that his father had purchased the house and the site Door No.4 in Natham S.No.120/13 in Mela Seniar Street, Aduthurai, under the sale deed dated 17.02.1932, which is Ex.B1. Under Ex.B1, one Vasudeva Chettiar had executed the said sale deed on his behalf and also on behalf of his minor son Gopalan in favour of the defendant's father Sheik Abdul Aziz. Under Ex.B1 the house in RS.No.120/13, Mela Senia Street, Aduthurai with a measurement of 220 ft. east west, 16 ft north south was sold to the father of the defendant. Under Ex.A6, sale deed dated 05.06.1935 one Govindasamy Pillai had purchased the entire plaint schedule property from Srinivasa Patta and Panchanatha Pattar, the judgment debtors under Ex.A2. From the said Govindasamy Pillai, the defendant's father had purchased the property under the sale deed dated 13.09.1935. Under Exs.A2 and A3, Panchanatha Asari had no title in respect of the entire plaint schedule property to convey the same under Ex.A6 to Govindasamy Pillai, who is the vendor under Ex.B2, the sale deed, dated 13.09.1935 in favour of the father of the defendant viz., Abdul Aziz Sahib, in respect of the entire tiled house in Natham S.No.120/13 measuring 26 ft north south 206 ft east west (5369 Sq.ft) (Exs.A2 and A3, are of the year 1931). The subsequent document Ex.A6, in favour of Govindasami Pillai is in respect of the entire plaint schedule property by Panchanatha Pattar and Srinivasa Pattar. Under Ex.B2 executed by Govindasamy Pillai, the vendee under Ex.A6, to the father of the defendant viz., Abdul Aziz Sahib is entitled only in respect of one half of the property scheduled under those documents and not more than that. Further, it is pertinent to note that the defendant's father Abdul Aziz is an attestor to Ex.A3, delivery certificate, in respect of one half of the plaint schedule property. The defendant cannot plead ignorance about Exs.A2 and A3, Court auction sale, in respect of one half of the plaint schedule property. After taking into consideration of the above aspects only, the learned first appellate judge has come to a correct conclusion that the plaintiff is entitled to half share in the plaint schedule property and in consequence declared plaintiff's right in respect of half of the plaint schedule property, which does not require any interference from this Court.
Hence, Substantial Question of Law No.2 is answered accordingly.
8.Substantial Question of Law No.1:-
After declaring one half right in respect of the plaint schedule property, the learned first appellate Judge has refused the relief for recovery of possession on the ground that the defendants have produced the documents to show that they are in possession and enjoyment of the property (Ex.B9 to B.32). There is no pleadings in the written statement filed by the defendant that he has prescribed title by way of adverse possession in respect of the entire plaint schedule property. The learned first appellate Judge at one place has rejected the relief of delivery of recovery of possession in respect of the suit property has granted mesne profit for three years prior to the institution of the suit. Both the above said findings are diametrically opposite to each other. Once the recovery of possession is denied, then there is no question of granting any mesne profit arises. After declaring one half right in the plaint schedule property in favour of the plaintiff, the learned appellate Judge ought to have granted recovery of possession also in respect of one half share in the plaint schedule property. Both the courts below have concurrently held that there is no landlord-tenancy relationship between the plaintiff and the defendant. Under such circumstances, there is no question of mesne profit arises in this case. So as far as the refusal of the relief of recovery of possession in respect of the half of the plaint schedule property by the learned first appellate Judge, warrants interference from this Court. Substantial Question of Law No.1 is answered accordingly.
9.In fine, the Second Appeal No.558 of 2000 is allowed and the decree and judgment of the learned first appellate Judge in A.S.No.16/1998 on the file of the Court of Subordinate Judge, Kumbakonam is set aside in respect of dismissal of the suit for recovery of possession in respect of half of the plaint schedule property. The plaintiff is entitled to recover half of the plaint schedule property after identifying the same with the help of an Advocate Commissioner at the time of execution of the decree. In other respects, the decree of the learned first appellate Judge in A.S.No.16/1998 on the file of the Court of Subordinate Judge, Kumbakonam is hereby confirmed. Second Appeal No.64 of 2000 is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Time for delivery of half of the plaint schedule property is one month after the identification of the same before the executing Court.
Mpk To
1.The Subordinate Judge, Kumbakonam.
2.The District Munsif, Valangaiman at Kumbakonam.