Dr. A. K. Zainuddin v. Kalyanasundari — 1987 DIGILAW 258 (MAD)

Judgment :- 1. The respondent herein purchased the suit property on 8.7.1974 from one Kuppammal and filed H.R.C. No. 3293 of 1974 against Dr. Kareem, the father of the appellants 1 and 2 and the husband of the 3rd appellant for eviction on several grounds, including requirement for demolition and reconstruction. During the pendency of the eviction petition, Dr. Kareem died and the appellants herein filed the suit, out of which this Second Appeal arises, in November, 1977, for a declaration that they are entitled to the benefits of the Tamil Nadu City Tenants Protection Act in respect of the land measuring 2043 sq. ft. marked red in the plan annexed to the plaint and for a declaration that the Rent Controller had no jurisdiction to try H.R.C. No. 3293 of 1974 and for a permanent injunction restraining the respondent from interfering with the possession of the appellants. The matter before the Rent Controller was contested fully and he passed an order or eviction on 25.1.1978, overruling the objections raised by the appellants that the tenancy was of the land and not of the building. That order of eviction was confirmed on appeal by the appellate Authority on 25.9.1978. The appellants preferred a revision petition in this court which was numbered as C.R.P. No. 3006/1978, and it was dismissed on 20.11.1979. It is to be stated at this stage that certain documents relied on by the appellants as evidencing the tenancy of the land and the permission by the owner of the land to Dr. Kareem to construct buildings on the land were found to be not genuine by the Appellate Authority as well as by this Court in the revision petition. It was nearly four years after the disposal of the revision petition, the present suit was taken up for trial. 2. The trial court took the view that the Judgment of the High Court did not deal with one of the documents relied on by the appellants, namely, Ex. A15, and held that Ex. A15 was proved to be true by the evidence of P.W. 2 Appadurai, who was not examined in the proceedings before the Rent Controller. 2. The trial court took the view that the Judgment of the High Court did not deal with one of the documents relied on by the appellants, namely, Ex. A15, and held that Ex. A15 was proved to be true by the evidence of P.W. 2 Appadurai, who was not examined in the proceedings before the Rent Controller. The trial court also held that the buildings on the land were constructed by the tenant, namely, the father of the appellants 1 and 2 and therefore, the appellants were entitled to the benefits of the Tamil Nadu City Tenants Protection Act. Consequently, the suit was decreed, as prayed for, by the appellants. 3. On appeal, the learned First Additional Judge, City Civil Court, Madras, reversed the conclusions of the trial Court and held that the appellants were not entitled to the benefits of the Act as they had not proved that the buildings were constructed by the father of appellants 1 and 2. The learned Judge also held that the trial court was wrong in thinking that Ex. A.15 was not dealt with by this Court in the revision petition and pointed out that the judgment of this Court had dealt with all the three documents relied on by the appellants in support of their case. Consequently, the learned appellate Judge allowed the appeal and dismissed the suit. 4. This Second Appeal is filed against the said Judgment and Decree. When the Second Appeal was taken up for hearing on 14.8.1987, Mr. R. Shanmugam, appeared as a Senior Counsel, and argued the matter. When this Court pointed out that the decision in C.R.P. No. 3006 of 1978 would be res judicata in so far as the question whether the tenancy was of the land or the building was concerned by virtue of Explanation 8 to S. 11 C.P.C., learned counsel found it difficult to answer the same. Then learned counsel argued that on the basis of certain documents sought to be filed as additional evidence in the Second Appeal, the ownership of the property would vest with the appellants and not with the respondent. It was then pointed out by the Court that this would be against the appellants and the suit would not be maintainable on that ground itself. It was then pointed out by the Court that this would be against the appellants and the suit would not be maintainable on that ground itself. Learned Counsel took time for having consultation with his clients and decide the further course of action and the matter was adjourned to 17.8.1987. On that date, learned counsel on record came and represented to this Court that they are withdrawing their appearance from the case and that the parties would argue the matter in person. I permitted learned counsel to withdraw and the first appellant was permitted to argue the matter. Thereafter, the first appellant made his submissions. 5. It is contended by the first appellant that Exs. A.15 to A.17 prove their case that the tenancy was one of land and not of the building. In fact, the case, as set out in the plaint, is that originally Dr. Kareem took on lease two horse stables, from Basha Gramani who was the owner and later by a separate lease the land, behind the two horse stables and between the horse stables was taken on an additional rent of Rs. 5/- per month and that Basha Gramani had permitted Dr. Kareem to erect superstructures. It is the case of the plaintiffs that Dr. Kareem had spent about Rs. 9,000/- and constructed buildings on the land. It was on that basis the claim was made that the plaintiffs were entitled to the benefits of the Tamil Nadu City Tenants Protection Act. It is the case of the appellants that Exs. A15 to A17 prove the tenancy of the land in favour of Dr. Kareem. As regards Exs. A16 and A17, the trial court rejected the same on the ground that they were covered by the Judgment of this court in C.R.P. No. 3 006 of 1978. The trial court took up for consideration only Ex. A15 and held that it was proved to be genuine. Obviously, the trial court is wrong in thinking that the Judgment of this Court did not deal with Ex. A15. The Judgment of this Court in C.R.P. No. 3006 of 1978 has been marked as Ex. B1. The three documents Exs. A15 to A17, in the present proceedings were marked as Exs. R1 to R3 in the Rent Control Proceedings. Obviously, the trial court is wrong in thinking that the Judgment of this Court did not deal with Ex. A15. The Judgment of this Court in C.R.P. No. 3006 of 1978 has been marked as Ex. B1. The three documents Exs. A15 to A17, in the present proceedings were marked as Exs. R1 to R3 in the Rent Control Proceedings. Referring to the three documents together, this Court has observed as follows:— “In connection with this, the learned counsel relied upon Exs. R1 to R3 to establish that the original owner had permitted the father of the 1st petitioner to put up the superstructure in question.” “These documents were attacked by the respondent as forgeries and, therefore, not at all reliable. A comparison of the signature of Basha Gramani found in Exs. R1 to R3 with the admitted signatures in Exs. P1 and P2 reveal that the two signatures are different and not identical. Even the first letter ‘K’ is not the same in Exs. P1 and P2 and in Exs. R1 to R3. in addition, it is also found that in Ex. P1, Badsha Gramani had signed his name as such, whereas, in Exs. R1 to R3 he has signed as K. These signatures were perused by the learned counsel for the petitioners and he had also admitted that the signatures of the petitioners are very different and not the same. Apart from the dissimilarities in the signatures referred to above, there are also other circumstances which throw a grave suspicion about the permission said to have been granted to Kareem for the purpose of putting up a construction in the property. It is not in dispute that Basha Gramani executed a mortgage on 1.9.1947. It is, therefore, highly doubtful whether he would have executed Ex. R2, just one day before the execution of that mortgage, on 31.8.1947. That Ex. R3 also cannot be relied upon is evident from Ex. P27 wherein Kareem had filed counter in an application for fixation of fair rent filed by Kuppammal. Therein, it has been clearly stated: “The petition building constructed is only of the extent of about half a ground i.e., 1200 sq. ft., leaving out the open space and backyard of the petition premises where there is no construction. The statement of Kareem would disclose that Ex. Therein, it has been clearly stated: “The petition building constructed is only of the extent of about half a ground i.e., 1200 sq. ft., leaving out the open space and backyard of the petition premises where there is no construction. The statement of Kareem would disclose that Ex. R3 would not have been in exercise on the date mentioned therein when he filed the counter under Ex. P27 in the year 1973.” 6. The above observations clearly show that this court had considered all the three documents and came to the conclusion that they were not proved to be genuine. The mere fact that a witness has been examined in the trial court to prove the genuineness of the documents will not enable the appellants to get over the finding rendered by this Court in the Rent Control Proceedings. The finding that the tenancy was of the building and not of the land was necessary and essential for the disposal of the Rent Control Proceedings. It was on the basis of that finding, the Rent Controller proceeded to decide the eviction and passed an order of eviction which was confirmed by the appellate authority and this Court sitting in revision. Under Explanation 8 to S. 11 C.P.C., an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. It cannot be denied that to decide the issue whether the tenancy was of the land or the building, the Rent Controller was competent and consequently, the finding given in those proceedings will constitute res judicata in the present proceedings. That itself will be sufficient to dismiss the present suit as the suit is based only on the claim that the tenancy was of the land and the buildings were constructed by the tenant. Once it is held that the original tenancy was not of the land, but of the building, then the appellants cannot claim the benefits of the City Tenants Protection Act even if they are in a position to prove that some of the buildings found on the property were constructed by them. Once it is held that the original tenancy was not of the land, but of the building, then the appellants cannot claim the benefits of the City Tenants Protection Act even if they are in a position to prove that some of the buildings found on the property were constructed by them. But, in the present case, there is absolutely no evidence to prove that the buildings were constructed by the father of the 1st and second appellants. The lower appellate court has discussed the evidence in full and came to the conclusion that the buildings were not proved to be constructed by Dr. Kareem. 7. It has to be noted that apart from the paucity of evidence on the side of the appellants to prove that the buildings were constructed by Dr. Kareem, there are other clinching circumstances to show that this claim that the buildings were constructed by Dr. Kareem is false and put forward for the first time for the purpose of thwarting the eviction proceedings. The very first occasion on which this claim was made was on 30.10.1974 which was a reply notice issued by the plaintiffs Advocate to the defendants advocate. Before that there were several occasions on which it ought to have been made but it was not made. On the other hand, the appellants proceeded as if the tenancy was with respect to the building and not merely the land. Ex. B38 dated 13.11.1968 is the notice issued by Mr. T.R. Rajagopalan, Advocate, on behalf of Dr. Kareem, to Kuppammal who was the prior owner and the vendor of the present respondent. In that notice it was stated that Dr. Kareem was a tenant in respect of premises No. 111, Dr. Natesan Road, on a monthly rent of Rs. 65/-. There was no mention of two separate tenancies, one of the land and one of the building at any time. The notice reads as if it was only one tenancy and the rent fixed was at Rs. 65/- per month for the entire property. Another notice was issued on 25.11.1968 under Ex. B40. In that notice also, there was no mention about two tenancies. Similarly in Ex. B41 dated 4.5.1972, which is another notice issued by the same lawyer on behalf of Dr. Kareem. That also makes no reference to the two leases alleged in the present proceedings. Another notice was issued on 25.11.1968 under Ex. B40. In that notice also, there was no mention about two tenancies. Similarly in Ex. B41 dated 4.5.1972, which is another notice issued by the same lawyer on behalf of Dr. Kareem. That also makes no reference to the two leases alleged in the present proceedings. There was one other notice, Ex. B43 dated 16.6.1972 which was on the same lines. Ex. B45 is the counter statement filed by Dr. Kareem in H.R.C. No. 2911 of 1973, which is a proceeding instituted by Kuppammal for fixation of fair rent. In that counter, Dr. Kareem had stated that the buildings were more than 100 years old and that the petitioner was not entitled to any rent more than Rs. 65/- per month which was already being paid by him. There was no whisper in that counter statement that the buildings were constructed by Dr. Kareem with the permission of Badsha Gramani or that the lease was of the land from Badsha Gramani. In fact, in paragraph 6 of the counter, it is stated as follows:— “The petitioner is well aware that in the building let out to the respondent herein mentally sick persons are looked after and treated. While so, the building could by no stretch of imagination be treated as non-residential for fixation of fair rent.” This is a clear admission on the part of Dr. Kareem that the subject matter of the tenancy was of the building and not of the land. Even as late as on 1.8.1974, counsel for Dr. Kareem had issued a notice to counsel for Kuppammal and there was no claim that the lease was of the land, but a claim was made in the notice that the tenant had put up water pipes and lines and improved the building. Thus, we see an improvement in the case being made by the tenant. The next improvement that was made was to claim that the lease was only of the land and the building was entirely constructed by the tenant. That was made in Ex. A1 dated 30.10.1974. Even before that, there was another notice dated 29.8.1974 by Dr. Kareems Advocate in which also the only claim put forward was that Dr. Kareem had improved the property during the course of his tenancy. 8. That was made in Ex. A1 dated 30.10.1974. Even before that, there was another notice dated 29.8.1974 by Dr. Kareems Advocate in which also the only claim put forward was that Dr. Kareem had improved the property during the course of his tenancy. 8. Thus it is clear that the case of the appellants that the buildings were constructed by Dr. Kareem has not been proved by any evidence worthy of acceptance. 9. As considerable reliance is placed upon Ex. A15, it has to be mentioned that apart from the fact that this court had found Ex. A15 to be a suspicious document and not reliable, there are other circumstances to show that Ex. A15 cannot be accepted as a genuine document. What stares at the face of a person who looks into Ex. A15 is that the signature of Badsha Gramani has disappeared. It was there when this court examined the document and compared it with the other admitted signatures of Badsha Gramani while disposing of the civil revision petition. Subsequently, documents were taken return of by the appellants and produced before the trial court to be marked as exhibits. The first appellant was examined as P.W. 1 and his chief-examination started on 5.4.1983. The documents were produced on 13.4.1983. Before that he had produced the certified copies which were marked as Ex. A7 to A9. When the original documents were produced and marked as Exs. A15 to 17, it was seen that the signature of Badsha Gramani in Ex. A15 had been erased. It is rather strange that the trial court had accepted this document to be a genuine one even in the absence of the signature of Badsha Gramani. The trial court had not given any attention to the fact that the signature which was in existence at the time when the revision was disposed of by this Court had disappeared when the document was produced before the trial court in the suit. The first appellant has given evidence in Chief examination to the effect that he was present when Exs. A15 and A17 were signed by Badsha Gramani, but in the course of cross-examination, be has admitted that he does not know personally how Exs. A15 to A17 came into existence. Reliance is placed upon the evidence of P.W. 2. Appadurai who is stated to be one of the attestors of Ex. A15. A15 and A17 were signed by Badsha Gramani, but in the course of cross-examination, be has admitted that he does not know personally how Exs. A15 to A17 came into existence. Reliance is placed upon the evidence of P.W. 2. Appadurai who is stated to be one of the attestors of Ex. A15. Though it is the case of the appellants that Ex. A15 was brought into existence after mediation was effected by panchayatdars who had signed Ex. A15 as attestors, P.W. 2 does not speak a word about the alleged panchayat. The signature in Ex. A15 reads as Appadurai Nadar, but in his deposition he had only signed as Appadurai. He had given an explanation that he has changed the mode of signature according to the modern trends. The learned Appellate Judge has given proper reasons for rejecting the evidence of P.W. 2 as not acceptable. I do not see any justification for rejecting that reasoning as wrong. 10. Even assuming for arguments sake that Ex. A15 is a genuine document, that will not help the appellants to prove that the tenancy was of the land and not of the building. The language in Ex. A15 does not go to show that the original tenancy was only of the land. 11. It is next contended by the first appellant that the respondent had purchased under Ex. B5 a building of an extent of 800 sq. ft., only. But in the plan filed by her before the Rent Controller, she had shown an extent of 2,000 sft. of building area. I do not know how this circumstance would help the appellants to prove their case of tenancy of land. Even assuming that the respondent had conflicting versions in the document of purchase and the plan that would not in any way help the appellants. Thirdly, it is submitted by the first appellant that the respondent had claimed rent only for door No. 113 which belonged to him. There may be confusion because the door numbers had been changed admittedly from 110 to 113 and 111 to 114. That would not also help the appellants. It was next contended that the mortgages executed by Badsha Gramani would show that he was in difficult circumstances and that he could not have had the funds to construct the buildings. That is not a circumstance which can be relied upon by the appellants. That would not also help the appellants. It was next contended that the mortgages executed by Badsha Gramani would show that he was in difficult circumstances and that he could not have had the funds to construct the buildings. That is not a circumstance which can be relied upon by the appellants. It is for them to prove by positive evidence that the buildings were constructed by Dr. Kareem. As I have pointed out already, that will not be sufficient for them to claim the benefits of the Act. Unless it is proved that the original tenancy was of the land they cannot get the benefits of the Act even if the buildings had been constructed by Dr. Kareem. 12. Reliance is placed upon Ex. A20, which is an order of the Collector of Madras passed on 16.5.1983 cancelling the patta issued to the respondent for R.S. No. 107/3. This document was produced by the appellants after the cross-examination had proceeded to a considerable length. He was being cross-examined from 21.4.1983 and as the summer vacation intervened, cross-examination was continued on 14.6.1983 after the reopening of the court. This document was produced on 26.7.1983 by the appellants. In his evidence, he has stated thus: “The Collector of Madras held an enquiry regarding discrepancies in the boundaries between D. No. 113 and D. No. 114. The Tahsildar and Special Officer attached to the Collectorate visited the spot. I was told that the defendant was aware of the proceedings and that she filed a statement through her counsel. Ex. A20 is the order passed by the Collector of Madras”. The first appellant has given his evidence very cautiously to the effect that he was told by somebody that the defendant was aware of the proceedings. But a perusal of the order of the Collector shows that the defendant could not have been aware of those proceedings. The order does not refer to any notice having been issued to the defendant before the proceedings were held; nor does the order refer to any enquiry having been made by the Collector between the parties. But a perusal of the order of the Collector shows that the defendant could not have been aware of those proceedings. The order does not refer to any notice having been issued to the defendant before the proceedings were held; nor does the order refer to any enquiry having been made by the Collector between the parties. A perusal of the order shows that an application was made by the 1st appellant on 10.8.1981 on which the Collector directed the Tahsildars, Mylapore-Triplicane to make a report and the Tahsildar had made a report that the boundaries mentioned in the document under which the respondent purchased the property did not tally with the actual position on the South and western portions and the Tahsildars had himself suggested that the patta in respect of R.S. No. 1071/3 should be cancelled. It is to be noted at this stage that the application filed by the first appellant was made nearly two years after this Court dismissed the civil revision petition holding that there was a tenancy of the building and confirming the order of eviction passed against the appellants. The order of the Collector proceeds to state that he made a personal inspection of the land in R.S. No. 1071/3 and found that possession of the land was with the 1st appellant for the past 45 years and that there was a technical error of overlapping of this structure in two survey numbers. This itself lets the cat out of the bag. The order begins with saying that there was a discrepancy with regard to the boundaries of the survey number. But the order proceeds to state that the appellants were in possession of the land for the past 45 years as if that gives them the right of ownership to that land. It was not the business of the Collector to rely upon the fact of possession of the land for the past 45 years even if it was so to draw any inference therefrom without adverting to the fact that the appellants were only tenants under Badsha Gramani and thereafter under Kuppammal and the present respondent Kalyanasundari. It is not known from the Collectors order whether he was informed of the fact of the order of eviction having been made against the appellants. It is quite obvious that the Collector would not have been informed of the same. It is not known from the Collectors order whether he was informed of the fact of the order of eviction having been made against the appellants. It is quite obvious that the Collector would not have been informed of the same. It appears to be strange that the Collector proceeds to direct cancellation of the patta on the basis of the two circumstances mentioned above. He directed the Tahsildar to restore the registry in the name of the original registered holder Badsha Gramani in respect of R.S. No. 1071/3. At the bottom of the order, it is made to appear that copies were sent to the respondent, Kalyanasundari, and to the Tahsildar. There is no evidence on record to show that the copy of the order of the Collector was actually sent to the respondent. Even assuming that it was sent, it was only an information of fait accompli and it would not amount to a notice by the Collector for any enquiry to be held by him. It is quite clear from the order of the Collector that no enquiry was made by him before passing that order. At any rate, the respondent was not heard before the order was passed. I am not in a position to pass any strictures against the Collector in these proceedings because the Collector is not made a party. Of course the Collector is not a necessary party to these proceedings and even this document will be wholly unnecessary and it will only cut at the root of the appellants case. But this document having been relied upon by the appellants and marked as an exhibit, I am obliged to make any observation which flows from it. Reliance is also placed upon the subsequent order of the Collector dated 27.11.1985. That document is sought to be filed as additional evidence in this Second Appeal. I had to peruse the document to find out the relevancy thereof to the matter in dispute. I find that the order of the Collector has directed the Tahsildar to grant patta to the first appellant and register the land in his name. There is no wonder that he passed such an order when he had already passed an order on 16.5.1983, cancelling the patta in favour of the respondent. I find that the order of the Collector has directed the Tahsildar to grant patta to the first appellant and register the land in his name. There is no wonder that he passed such an order when he had already passed an order on 16.5.1983, cancelling the patta in favour of the respondent. In the later order, the Collector has decided that the appellants had prescribed title to the property by adverse possession. The Collector had also purported to compare the boundaries described in the sale deed under which the respondent purchased the property and the boundaries given by the first appellant in his application for transfer of registry in his favour. The Collector came to the conclusion that the land for which the first appellant wanted the registry to be transferred was different from the land purchased by the respondent. On the face of the order, it is clear that no notice was issued to the respondent with regard to those proceedings. Nor was any notice issued to Badsha Gramanis legal representatives. On the other hand, the Collector observed that there was no claim from the legal representatives of Badsha Gramani. When the property had been sold by Badsha Gramani to Kuppammal, from whom the respondent had purchased it, it is not known how the legal representatives of Badsha Gramani could have made a claim. The only person interested in the property was the respondent and the Collector proceeded to order transfer of registry without issuing any notice to the respondent. 13. It is clear from the two orders of the Collector referred to above that the appellants, to say the least, are quite influential persons who arguable to procure orders from the Government Officials without following the proper procedure. In spite of the fact that this Court had passed the order of eviction against the appellants holding that they were tenants of the buildings and not of the land as pleaded by them, the appellants approached the Revenue Officials and got the registry mutated without informing those officials of the proceedings pending in Court and the orders obtained in such proceedings and sought to be relied in the civil court. The appellants did not realise that such orders in their favour obtained from the government officials would only cut at the root of their case as set out in the plaint. The appellants did not realise that such orders in their favour obtained from the government officials would only cut at the root of their case as set out in the plaint. In the present plaint, their claim is that they are tenants under the respondent and that they are entitled to get the benefits of the City Tenants Protection Act. The present orders on which reliance is placed by the appellants would be on the basis that appellants are the owners of the land. That will be exactly contrary to what has been stated in the plaint. If the appellants want to rely on the two orders passed by the Collector, they cannot get any relief in this suit. It was only when this aspect of the matter was brought to the notice of learned senior counsel who appeard for appellants, in the first instance before me, that he took time for discussing the matter with the appellants and coming to a conclusion whether the appeal should be proceeded with or not. But the appellants chose to dispense with the services of learned counsel and argue the matter themselves. I have no doubt that the appellants are capable of bringing into existence documents and procuring order of Revenue Officials in their favour for the purpose of the proceedings in Courts. 14. I hold that the learned appellate Judge is right in allowing the appeal before him and dismissing the suit in toto. The Second Appeal fails and is dismissed. In view of the findings, given by me already, I hold that the appellants are liable to pay exemplary costs to the respondent. I direct the appellants to pay a sum of Rs. 2,000/- by way of costs to the respondent.