S. Jaganathan Rao v. M. G. Vital Rao — 1996 DIGILAW 1252 (MAD)

Judgment :- 1. The defendants in O.S. No.7922 of 1982 on the file of the 18th Assistant City Civil Judge, Madras, are the appellants herein. The respondent herein filed the suit for declaration of his title to the suit property, for recovery of possession and for mesne profits. The plaintiffs case is that he is the owner of the property and the first defendant is the tenant under the predecessor-in-title of the plaintiff. Defendants 2 to 5 are also in possession of the property as tenants. Since the first defendant denied the title of the plaintiff, the suit has been filed. The first defendant filed written statement claiming title to the suit property and the defendants 2 to 5 are the tenants under him. Defendants 2 to 5 also filed written statement contending that the first defendant is the owner of the property and they are the tenants under the first defendant. Further, they pleaded that they are entitled for the benefit of the Tamil Nadu Buildings (Lease and Rent Control) Act. The trial court by its judgment and decree dated 19.7.1994 has decreed the suit as prayed for, finding that the plaintiff is the owner of the property and the first defendant has failed to establish his case of adoption. As against this, the appellants herein preferred an appeal in A.S. No.237 of 1985 on the file of the City Civil Court, Madras. The lower appellate court also concurred with the findings of the trial court and dismissed the appeal by its judgment dated 29.11.1985 by modifying the decree of the trial court, whereby the first defendant was permitted to reside in the suit house for 2 1/2 years without paying any damages or mesne profits. Aggrieved by the same, the appellants herein preferred the second appeal and the respondent filed the cross-objections. 2. Pending the appeal, the first and fifth appellants were dead. C.M.P. Nos.8316 to 8318 of 1996 filed by the legal representatives of the first appellant to condone the delay in filing the application for setting aside the abatement, and to bring them on record as legal representatives as well as C.M.P. Nos.8313 to 8315 of 1996 filed by the legal representatives of the fifth appellants for the same reliefs, were dismissed by this Court by order dated 3.121996. In view of the dismissal of the above civil miscellaneous petitions, counsel for the respondent took preliminary objection stating that the respondent took preliminary objection stating that the decree of the courts below is a joint one against the appellants and since now the appeal is abated so far as the first and fifth appellants are concerned the entire appeal is liable to be dismissed and nothing survives in the appeal. On the contrary, counsel for the appellant contended that each of the appellants is in possession of the property and as such each one is liable to hand over possession. Hence, the decree cannot be said to be joint, so far as the remaining appellants are concerned, the appeal survives and argued the matter on merits. He contended that though the dispute of title is between the first appellant and the respondent herein, the other appellants have nothing to do with such dispute. They are only tenants in the suit property. The respondent had impleaded them as parties to the proceedings. The rights of the appellants as tenants have to be safeguarded. When once the appellants are admittedly tenants, eviction can be sought for only by invoking the provisions of the Rent Control Act and there cannot be a decree for recovery of possession and as such the decree of the courts below are liable to be set aside. 3. I carefully considered the contentions of both the counsel. The decree of the trial court is as follows: "TAMIL" From perusal of Clause 2 of the decree, it is clear that it is a joint decree against all the defendants directing them to hand over possession to the; plaintiff. Since the decree is joint, it cannot be divided and as such by the dismissal of the applications filed by the legal representatives of the first and fifth appellants, the appeal stands abated so far as the first and fifth appellants are concerned. When once the decrees is a joint one and the appeal is abated so far as some of the appellants are concerned, it is deemed to have abated against the other appellants also and hence nothing survives in the appeal. When once the decrees is a joint one and the appeal is abated so far as some of the appellants are concerned, it is deemed to have abated against the other appellants also and hence nothing survives in the appeal. It is worthwhile to refer to the principles laid down in some of the decisions of this Court viz., Muthuswamy alias Dronon v. Venugopalan viz., Muthuswamy alias Dronon v. Venugopalan viz., Muthuswamy alias Dronon v. Venugopalan 86 L. W. 105. “(10) The question whether consequent on the abatement of the appeal so far as one of the appellants is concerned, the entire appeal should be held to have abated, has to be decided with reference to the nature of the relief claimed and the terms of the decree. If the decree is joint against several defendants and if the decree has become final so far as one defendant is concerned on account of abatement on his death, the appeal by the other defendants should necessarily be held to be not maintainable because the success of the appeal would lead to the court coming to a decision which would be inconsistent with the decision between the deceased appellant and the respondent and that would lead to the court passing a decree which would be contrary to a decree which has already become final in respect of the same subject-matter between the deceased appellant and the respondent…” G.Kanthimathi and four others v. G. Lakshmi Ammal, etc. G.Kanthimathi and four others v. G. Lakshmi Ammal, etc. G.Kanthimathi and four others v. G. Lakshmi Ammal, etc. (1990)2 L.W. 448 : “…If the suit claim against the fourth defendant is abated and the decree of dismissal and the finding of the trial court has become final, certainly there will be a conflicting decree in case if the appeals are allowed and the case of the plaintiffs and defendants 5, 7 and 8 is accepted. In the plaint the plaintiffs have prayed for a direction to defendants 4, 5 and to render an account of the income from the lorries run by them from 5.10.1972 till they are put in separate, possession of the same. In the plaint the plaintiffs have prayed for a direction to defendants 4, 5 and to render an account of the income from the lorries run by them from 5.10.1972 till they are put in separate, possession of the same. Defendants 4, 5 and 7 are jointly liable to render account in respect of the income from the lorries and that has not been apportioned and the claim is made jointly against defendants 4, 5 and 7 besides they are claiming for a decrees for 4/12th share, in the suit properties. It is not in dispute that this is a suit for partition and the legal representatives of the deceased fourth defendant should succeed to the estate of his divided share. As already stated, the liability of defendants 4, 5 and 7 with regard to the relief of accounting has not been apportioned, and the decree against the deceased fourth defendant has become final so far as he is concerned, as a result of abatement of the appeal. If a decree were to follow in favour of the plaintiffs as well as defendants 4, 5, 7 and 8 on the basis of their claim made in the plaint as well as in the written statement, the decree to be passed would be inconsistent with the decree as between the deceased fourth defendant, the plaintiffs and defendants 5, 7 and 8. The ratio laid down in the above decisions is on all fours applicable to the facts of this case and applying the ratio, we find this case and applying the ratio, we find much force in the contentions of the learned counsel for the respondents. The appeals cannot be proceeded with by the appellants in both the appeals” Pedda Kempaiah (deceased) and another v. Berappa and three others (1992)2 L. W. 494: “4. I am bound by direct judgments of the Supreme Court and a Division Bench of this Court in this matter. In Trichand v. Jagadish Pershad Trichand v. Jagadish Pershad Trichand v. Jagadish Pershad A.I.R. 1966 S.C. 1427 it was held that the appellate court had no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or the defendants underO.41, Rule 4, C.P.C., when the decree proceeded on a ground common to all the plaintiffs or defendant, if all. the plaintiffs or defendants appealed from the decree and any of them died and the appeal abated so far as the said person was concerned. The Supreme Court placed reliance on its earlier decision in Rameshwar Prasad v. Shambehari Lai Rameshwar Prasad v. Shambehari Lai Rameshwar Prasad v. Shambehari Lai A.I.R. 1963 S.C. 1901. Applying the dictum of the Supreme Court in the said decision, a Divisional Bench of this Court has in Muthuswamy v. Venugopal (1973) 1 MLJ. 351 : 86 L. W. 105held that if a decree is joining against several defendants and if the decree has become final so far as one defendant is concerned on account of abatement on his death, the appeal by the other defendants should he held to be not maintainable because the process of the appeal would lead to the Court coming to a decision which would be inconsistent with the decision between the deceased appellant and the respondent and that would lead to the court passing a decree which would be contrary to a decree which has already become final in respect of the same subject-matter between the deceased appellant and the respondent. The decision of the Division Bench applies on all fours to the present case. If the second appeal is heard and allowed, the decree in the second appeal would be directly contrary to the decree which has become final as against the first defendant first appellant on the abatement of the appeal as against him. Hence the second appeal cannot be proceeded with further.” The principles laid down in the above judgments will be applicable in all force to the facts of the present case. Accordingly, the second appeal is liable to be dismissed as abated. 4. Even otherwise on merits also, the appeals are liable to be dismissed. On the admitted facts of the case, the defendants 2 to 5 had set-up title in the first defendant and claimed to be the tenants under the first defendant. Having denied the title of the plaintiff, it is not open to them at this stage to contend that only the provisions of the Rent Control Act are applicable and the eviction proceedings have to be initiated only under the Tamil Nadu Buildings (Lease and Rent Control) Act. Having denied the title of the plaintiff, it is not open to them at this stage to contend that only the provisions of the Rent Control Act are applicable and the eviction proceedings have to be initiated only under the Tamil Nadu Buildings (Lease and Rent Control) Act. When the defendants 2 to 5 had specifically denied the title of the respondent herein the, mere is no question of the existence of landlord and tenant relationship between the parties. To invoke the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act the first and foremost condition is the existence of the relationship of landlord and tenant. In the absence of the same, the plaintiff has filed the suit and established his title. So far as the title of the plaintiff is concerned, both the courts below have elaborately discussed the evidence available on record and factually found that the plaintiff has got title to the suit property and decreed the suit. Since the findings of the courts below are purely questions of fact, no substantial question of law is involved in the appeal and finally the second appeal is dismissed and the cross-objection is also dismissed. However, there will be no order as to costs, Consequently, the C.M.P are also dismissed.