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2004 DIGILAW 1615 (MAD)

Sri Varadharaja Perumal Temple v. Jeyakumar

2004-11-30

M.THANIKACHALAM

body2004
Judgment :- The appellant/plaintiff, though was successful before the trial Court in getting a decree for injunction, failed before the first appellate court, when the same was challenged by the defendant and the result is the second appeal. 2. The suit property measuring 78 cents which is equivalent to 0.31.0 hectare, in Survey No.19/2 situated at Kuthapakkam village belongs to the plaintiff/appellant temple. According to the plaintiff, this property was in the possession and enjoyment of Kothandapani as lessee and on his surrender on 30.3.1990, the plaintiff temple is in possession and enjoyment of the suit property in its own right. It seems, the defendant, who has no right or interest in the suit property, attempted to trespass into the suit property, with a view to grab the temple property and in order to prevent the trespass and to protect the possession of the suit property, a suit has been filed by the temple, for permanent injunction. 3. The respondent/defendant admitting the title of the plaintiff temple in respect of the suit property, opposed the case of the plaintiff, denying the allegations in the plaint and setting up lease hold right in his favour, claiming possession traceable to the legal origin, which cannot be labeled as trespass, thereby praying for the dismissal of the suit. 4. The learned Principal District Munsif, Cuddalore, considering the oral evidence of P.Ws.1 & 2 as well as D.W.1, in addition evaluating Exs.A1 to A4 and Exs.B1 & B2, came to the conclusion, that the plaintiff as the owner of the suit property is in possession and enjoyment of the same, in which the defendant/respondent has no possession or right to be in possession. Thus concluding, a decree has been granted as prayed for, in favour of the plaintiff on 31.1.1992, which was challenged by the defendant before the Sub Court, Cuddalore in A.S.No.60/1992. 5. When the appeal was pending, the defendant as appellant filed an application under Order 41 Rule 27 C.P.C. to receive some documents as additional evidence. Both the I.A. and the appeal were heard by the learned Additional Subordinate Judge and he felt that the documents filed as additional evidence are necessary to decide the dispute between the parties. 5. When the appeal was pending, the defendant as appellant filed an application under Order 41 Rule 27 C.P.C. to receive some documents as additional evidence. Both the I.A. and the appeal were heard by the learned Additional Subordinate Judge and he felt that the documents filed as additional evidence are necessary to decide the dispute between the parties. Further, due to unavoidable reasons or otherwise, the defendant was unable to file the documents, condoning the same, he ordered those documents to be received as additional evidence, which are marked as Exs.B3 to B5. After considering the effect of Exs.B3 to B5, as well as considering the evidence available on record, the learned Additional Subordinate Judge, unable to agree with the decision rendered by the learned Principal District Munsif, set aside the finding, concluding that the defendant was in possession and enjoyment of the suit property, on the date of filing of the suit as tenant and that possession cannot be described as unlawful, labeling the defendant as trespasser. Thus concluding, the appeal was allowed upsetting the decree and judgment granted by the trial Court, which favoured the appellant/plaintiff. Aggrieved by the decision of the appellate Court, the plaintiff temple is before this Court as appellant. 6. This Court, while admitting the second appeal, had formulated the following substantial questions of law for consideration. (1) Whether the lower Appellate Court was in error in relying on the self-serving recital in the notices issued by the defendant to a third party about his alleged possession as a cultivating tenant as admission against the plaintiff, when as per Section 21 of the Evidence Act admission cannot be proved by or on behalf of the person who makes it? (2) Whether the lower Appellate Court was right in not casting the burden of proof on the defendant to establish that he was a tenant under the plaintiff, as falsely contended by him. 7. Heard the counsel for the appellant, Mr. Kannan and the learned counsel for the respondent, Mr. A. Thamizharasan. 8. (2) Whether the lower Appellate Court was right in not casting the burden of proof on the defendant to establish that he was a tenant under the plaintiff, as falsely contended by him. 7. Heard the counsel for the appellant, Mr. Kannan and the learned counsel for the respondent, Mr. A. Thamizharasan. 8. The learned counsel for the appellant argued that the first appellate Court has committed an error in allowing the I.A.No.358/92, thereby permitting the defendant to produce additional evidence, which is against law, that the learned Additional Subordinate Judge has failed in not appreciating the case of the parties in its proper perspective, since the defendant has failed to prove the tenancy, which duty is cast upon him, as per the Evidence Act and that the plaintiff being the owner of the property is entitled to be protected from the trespasser, which was not considered by the first appellate Court though it was fairly and properly legally considered by the trial Court. Thus questioning the findings of the first appellate Court, praying for the restoration of the trial Court's judgment, inviting my attention to the pleadings as well as the evidence also to certain extent, a strenuous submission was made for allowing the appeal. 9. The learned counsel for the defendant/ respondent opposing the above arguments, would contend, that the plaintiff temple had miserably failed in proving the alleged surrender of possession by the erstwhile tenant from whom the defendant took the property on lease and the documents produced before the appellate Court very well establish not only the possession of the defendant, but also the right to be in possession, which were properly considered by the first appellate Court, while upsetting the findings of the trial Court, which does not warrant any modification or upset by the interference of this Court. 10. The admitted position is that the appellant/ plaintiff temple is the owner of the suit property, a cultivable land. It is the case of the plaintiff that the suit property was originally in the possession of one Kothandapani, who surrendered the possession on 30.3.1990, which is evidenced by Ex.A2. 10. The admitted position is that the appellant/ plaintiff temple is the owner of the suit property, a cultivable land. It is the case of the plaintiff that the suit property was originally in the possession of one Kothandapani, who surrendered the possession on 30.3.1990, which is evidenced by Ex.A2. Thus claiming possession on and from 30.3.1990, labeling the defendant as a trespasser attempting to disturb the possession, the suit came to be filed, which was decreed, though the same was resisted by the defendant as if he is in possession and enjoyment of the property as tenant. In view of the admitted position, that the plaintiff is the owner of the suit property, it could be said, that it is entitled to protect its possession by an order of injunction. But there is no presumption under law, that the plaintiff is in possession of the property, since the suit property is a cultivable land. Therefore, irrespective of the title, which is conceded, the initial burden is upon the plaintiff to prove the possession, on the date of filing of the suit. In support of the above contention, aid is sought from Ex.A2 seeking further strength from the oral evidence of P.Ws.1 & 2. The learned Principal District Munsif, in my considered opinion, properly analysing the oral evidence of P.Ws.1 & 2, which is supported by the document executed by the admitted original lessee viz., Kothandapani, came to the conclusion, that the plaintiff is in possession and enjoyment of the property. In this view, it could be said even now, the plaintiff is entitled to be protected by the issue of an injunction order, unless the defendant establishes better interest and physical possession. 11. Section 109 of the Indian Evidence Act 1892 says when the question is whether persons are landlord and tenant, the burden of proving that, is on the person, who affirms it. Here the defendant/respondent claims that he is the tenant and the plaintiff temple is the landlord. Therefore, it is for the defendant to establish that he was enjoying the property as tenant, on the date of filing of the suit, in order to dislodge the case made out by the plaintiff as observed supra. Except the interested, uncorroborative oral testimony of the defendant and some payment of kist receipts, no other acceptable evidence has been let in, as rightly observed by the trial Court. Except the interested, uncorroborative oral testimony of the defendant and some payment of kist receipts, no other acceptable evidence has been let in, as rightly observed by the trial Court. In this context, we have to see the defence raised in the written statement also. 12. In the short written statement, I am unable to find the origin of tenancy and the terms of tenancy so as to say that in pursuance of the same, the defendant might have been in possession of the property, as tenant. The defendant has pleaded in the written statement as if he is in possession and enjoyment of the suit property since 1989, from the date of the lease to him. He has not stated the actual date of tenancy and also failed to say what is the premium or lease amount payable by him for the enjoyment of the suit property, recognising the right and title of the landlord. Thus, the written statement is eloquently silent regarding the terms of tenancy and therefore, on the basis of the pleadings, recognising the right of the defendant, as tenant, is out of question. Since there is no detailed plea regarding the tenancy, the oral evidence of D.W.1 also failed to inspire the mind of the trial Court, which resulted the dismissal of the defence, in which we cannot find out any error either on facts or on law. The payment of kist alone for the limited period, more or less when the dispute had commenced between the parties, will not prove the actual physical possession, since the revenue department is willing to receive the payment of kist, who ever pays irrespective of their interest in the property. It is not the case of the defendant, that he has been recognised as tenant, recorded so in the Adangal or in the cultivating tenancy records. It seems, only after the filing of the suit, an attempt is made by moving the authority concerned, to register his name as cultivating tenant, which is not done so far, as conceded before me. 13. From the above facts and circumstances of the case, it should be concluded, that in view of Ex.A2 also, the plaintiff alone is in enjoyment and possession of the property coupled with ownership. It is also admitted by the defendant that the suit property was in the possession of one Konthandapani, who had executed Ex.A.2. 13. From the above facts and circumstances of the case, it should be concluded, that in view of Ex.A2 also, the plaintiff alone is in enjoyment and possession of the property coupled with ownership. It is also admitted by the defendant that the suit property was in the possession of one Konthandapani, who had executed Ex.A.2. According to the plaintiff, in pursuance of Ex.A2, they took possession. If this document is to be challenged or to be negatived, the proper person, who can speak about the effectiveness or ineffectiveness of the document must be the said Kothandapani. In the absence of materials, considering Ex.A1 and the evidence of P.Ws.1 & 2, which are inspiring, the plaintiff/appellant's case has to be accepted, as did by the trial Court. 14. In the first appellate Court, as herein before adverted, a petition has been moved under Order 41 Rule 27 C.P.C., for the production of additional evidence. The submission of the learned counsel for the appellant, that the first appellate Court ought not to have entertained this application, appears to be well founded, since the first appellate Court has not given any finding that the petitioner did come within the parameter prescribed under Order 41 Rule 27 C.P.C. It is also incumbent upon the first appellate Court, where an additional evidence is allowed to be produced, it shall record the reason for its admission. The reasonings recorded by the first appellate Court in paragraph-13 is not in accordance with Order 41 Rule 27 C.P.C. No finding is given as if the documents were sought to be produced before the trial Court, whereas the trial Court refused to admit the evidence, which ought to have been admitted. Further, I find no finding that the appellant/defendant in A.S.NO.60/92 was unable to produce the document despite the exercise of due diligence, such as the same was not within his knowledge or he was unable to produce the same, after the exercise of due diligence, etc. This being the position, by allowing the document, to be marked in the appellate stage, without giving an opportunity to the other side, to question the same by way of cross examination, the appellate Court deprived the right of opportunity to the plaintiff. This being the position, by allowing the document, to be marked in the appellate stage, without giving an opportunity to the other side, to question the same by way of cross examination, the appellate Court deprived the right of opportunity to the plaintiff. In this view, in my considered opinion, the admission of the additional evidence viz., Exs.B3-B5 are not legally sustainable, which alone appears to be the basis for allowing the appeal. Exs.B3 to 5 are not the documents emanated between the parties and it seems, the notice and reply notice is not connected with the plaintiff temple. This being the position, the plaintiff temple should have been given an opportunity to explain under what circumstances these documents might have come into existence, such as the documents are prepared for the occasion or the recitals if any, adverse against the temple are not binding upon the temple. etc. Thus, depriving the right of the temple, as if these documents are all admitted documents, a finding given by the learned Additional Subordinate Judge, Cuddalore, is legally not sustainable. Even taking into account that these documents could be admitted as evidence, as submitted by the learned counsel for the appellant, the alleged admission contained therein or the recitals, could not be taken as the monumental proof to establish the relationship between the parties, as landlord and tenant. 15. The learned Subordinate Judge, while discussing Exs.B3 & B4, had observed in paragraphs 16 & 17 of the judgment, that as if there are admissions, admitting the status of the defendant and his possession of the suit property, which, as rightly submitted by the learned counsel for the plaintiff/appellant, appears to be disastrous one and against the Evidence Act. 16. Section 17 of the Indian Evidence Act defines 'Admission', which reads: "An admission is a statement, oral or documentary, or contained in electronic form which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, hereinafter mentioned." If the definition for admission has to be applied in this case, it should be shown that it is an admission by a party to the proceeding or his agent or by suitor in representative character or by party interested in subject matter or by person from whom interest derived. If the admission is made by the above category of persons, and proved, those admission are relevant, they could be considered to decide the facts in issue. 17. Ex.B3 is the notice issued on behalf of Shri C.V. Sundaram and C.V. Srinivasan to five persons, including the defendant by name P. Jayakumar, wherein it is said that Jayakumar is in possession of items 7 & 8, in the notice, which is said to be the subject matter of the suit. This document is not marked to the plaintiff temple and the plaintiff has no knowledge about this document also. For this notice, the defendant replied under the original of Ex.P.4, repudiating the contentions in the notice, claiming that the properties are standing in the name of Perumal koil, situated in Thirupapuliyur and the defendant is in possession as a lessee. There also, the terms of lease has not been stated, as rightly submitted by the learned counsel for the appellant. Ex.P.4 is a self serving document emanated more or less after the dispute had arisen between the parties. Therefore, the self proclamation of Jayakumar that he is in possession of the property, as tenant under the temple, without knowledge to the temple, cannot be described as admission, as understood under law. If the copy of the notice had been sent to the temple and the temple having the opportunity to deny the same, failed to do so, then it could be said to some extent that by silence, the temple admitted the self proclamation of Jayakumar, thereby taking this to some extent, within the definition of admission. Unfortunately, without considering these aspects, how the self proclamation of Jayakumar, would bind the temple, the first appellate Court has come to the conclusion, as if the averments in the reply notice are admissions, based its erroneous conclusion, as if the defendant is a tenant. Only on the basis of the alleged admission, the proved and admitted document viz., Ex.A2 was not believed. Though, the defendant claimed that he is the tenant from 1989, admittedly not even a single pie has been paid or attempted to be paid as lease amount to the temple. Without considering all these facts, the learned Subordinate Judge, has recorded perverse findings against the evidence available on record, that too against the Evidence Act, which are liable to be disturbed, by the interference of this Court. 18. Without considering all these facts, the learned Subordinate Judge, has recorded perverse findings against the evidence available on record, that too against the Evidence Act, which are liable to be disturbed, by the interference of this Court. 18. Though the learned counsel for the respondent/defendant contended, that the there is landlord and tenant relationship between the plaintiff and the defendant, except the oral assertion, there is nothing on record to support the same, which was not properly considered, depending upon the burden of proof. For the foregoing reasons, the appeal deserves acceptance, and the substantial questions of law are answered accordingly. In the result, the appeal is allowed with costs throughout, setting aside the decree and judgment of the first appellate Court in A.S.No.60/1992 dated 20.7.1993, restoring the decree and judgment of the learned District Munsif, Cuddalore in O.S.No.355/1990 dated 31.1.1992.