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2008 DIGILAW 1959 (MAD)

K. N. Gopal (died) & Others v. A. Bhanumathy

2008-06-24

R.BANUMATHI

body2008
Judgment :- This Second Appeal arises out of the Judgment in A.S.No.48/1995 dated 20.04.1995 reversing the Judgment of the trial court and dismissing the Plaintiffs suit for Permanent Injunction. Unsuccessful Plaintiff is the Appellant in this appeal. Pending Second Appeal, Appellant K.N. Gopal died and his legal representatives wife, son and daughter were brought on record as Appellants 2 to 4. For convenience, the parties are referred as per their array in the suit. 2. Undisputed facts obtaining from the materials on record is that the deceased first Appellant/Plaintiff K.N. Gopal was a tenant of the shop under the Respondent/Defendant at No.5, Manali Road, Gopal Reddiar Nagar, Korukkupet, Madras-21 and he was carrying on business in the sale of Aluminium articles in the demised premises. Originally the rent was Rs.200/-which was subsequently increased. Plaintiff was regularly paying electricity and water connection charges. Defendant/Land lady sent ultimatum calling upon the Plaintiff to vacate the shop on or before 10.01.1990. Apprehending forcible dispossession, Plaintiff had filed the suit for Permanent Injunction restraining the Defendant from interfering with the possession and enjoyment of the tenanted shop. After filing of the suit, alleging dispossession on 28.01.1990, Plaintiff amended the plaint including prayer for delivery of vacant possession of tenanted shop. 3. Defendant/Land lady has filed written statement contending that the Plaintiff was tenant up to 21.01.1990 and that Plaintiff had taken a sum of Rs.5000/- from the Defendant on 21.01.1990 and voluntarily vacated the shop premises. On 22.01.1990 the shop premises was handed over to one D. Sugumaran for running business and on the same day possession was handed over to him. 4. On the above pleadings necessary issues were framed. Upon consideration of oral and documentary evidence, trial court held that while the relationship between the Landlady and the tenant was strange, Landlady would not have parted with money. Trial court disbelieved the version of the Landlady that the Plaintiff had voluntarily vacated the demised premises. Observing that when the court has already passed an order that the Plaintiff should not be evicted except under due process of law and that the Plaintiff was dispossessed after filing of the suit, trial court also decreed the suit for delivery of possession. 5. Observing that when the court has already passed an order that the Plaintiff should not be evicted except under due process of law and that the Plaintiff was dispossessed after filing of the suit, trial court also decreed the suit for delivery of possession. 5. In the appeal preferred by the Defendant, lower Appellate court held that even prior to the filing of the suit, on 21.01.1990 itself the Plaintiff was out of possession which was suppressed by the Plaintiff at the time of filing of the suit. The lower Appellate court disbelieved the version of the Plaintiff that the Defendant had taken forcible possession on 28.01.1990. Referring to Ex.A19 F.I.R. in Cr.No.125/1990, lower Appellate court held that possession of the tenanted premises was taken even on 21.01.1990 and while so, the Plaintiff could not have been dispossessed on 28.01.1990 as alleged by the Plaintiff. The lower Appellate court also pointed out that for the relief of possession, Plaintiff has not paid the court fee. 6. Being aggrieved by the Judgment of the first Appellate Court, the Plaintiff has preferred this Second Appeal. The following substantial questions of law were formulated for determination in the Second Appeal: "1. Whether the Lower Appellate Court is not in right in allowing the appeal without giving a finding that the tenant was forcibly dispossessed or he voluntarily surrendered as contended by the landlord? 2. Whether the Lower Appellate Court is not right in dismissing the suit though the relief sought for is possession without giving a finding that the plaintiff is not entitled to recover possession?" 7. Challenging the impugned findings, Mr. A. Venkatesan, the learned counsel appearing for the Appellants submitted that the lower Appellate court erred in ignoring the weight of evidence and the fact that the Landlady was anxious to some how evict the Plaintiff. The learned counsel for the Appellants further submitted that when injunction order was served on the Respondent and while so, pending suit and injunction order, Plaintiff was forcibly dispossessed from the suit property on 28.01.1990 and therefore, pursuant to the amended plaint the lower Appellate court ought to have confirmed the decree for delivery of possession. The learned counsel for the Appellants would further submit that as per Sec.6 of Specific Relief Act within six months from the date of dispossession, Plaintiff is entitled to maintain a suit for recovery of possession. The learned counsel for the Appellants would further submit that as per Sec.6 of Specific Relief Act within six months from the date of dispossession, Plaintiff is entitled to maintain a suit for recovery of possession. The learned counsel for the Appellants would further submit that when the lower Appellate court had not properly appreciated the oral and documentary evidence, exercising jurisdiction under Sec.100 C.P.C., High Court has to interfere with the perverse findings of the lower Appellate court. 8. Supporting the findings of the lower Appellate Court, Mr. R. Subramanian, the learned counsel appearing for the Respondent has submitted that the reversal Judgment of the lower Appellate court is based upon the evidence and materials on record and the same cannot be interfered with. 9. It is not in dispute that the tenancy commenced in January 1986 and the original rent was Rs.175/- per month which was later increased. For quite some time, relationship between the Landlady and the tenant was strained. The tenant has filed R.C.O.P. Praying to direct the Landlady to receive the rent and for amenities. There were also several police complaints by either side. 10. On 25.01.1990, Plaintiff had filed suit for Permanent Injunction alleging that he is in occupation of the tenanted premises and that the Defendant/Landlady is attempting to evict him. Upon analysis of the evidence, lower Appellate court held that the Plaintiff could not have been in occupation of the tenanted premises on 25.01.1990. 11. On 21.01.1990 Plaintiffs wife Uma, second Appellant herein had filed a complaint (Ex.A19) before H6 R.K.Nagar P.s. alleging that the Defendant and her men have forcibly broke open the lock and entered into the premises and evicted them. On the basis of the said complaint, a Criminal case was also registered in Cr.No.125/1990 under Secs.147, 448 and 427 I.P.C.(Ex.A19). In Ex.A19 F.I.R. it was clearly averred that the Landlady and her men have forcibly entered into the shop and thrown away the utensils and forcibly taken possession. When the Plaintiffs wife has averred that the Landlady had entered into the shop and evicted them, Plaintiff was not justified in saying that he was forcibly dispossessed on 28.01.1990. 12. On 23.01.1990, Plaintiff had given a complaint to H6 R.K.Nagar P.s. stating that the Landlady entered into the shop and demolishing the shop and attempting to put up construction for converting the shop as house. 12. On 23.01.1990, Plaintiff had given a complaint to H6 R.K.Nagar P.s. stating that the Landlady entered into the shop and demolishing the shop and attempting to put up construction for converting the shop as house. Referring Exs.A19 and A20, the lower Appellate court has rightly held that the Plaintiff was already out of possession. Suppressing the material fact that the Landlady already taken possession, Plaintiff had filed the suit and obtained interim injunction. Thereafter, alleging that injunction order was also served on the Defendant and during pendency of the suit Plaintiff was forcibly dispossessed from the suit property on 28.01.1990, Plaintiff had amended the plaint. On 28.01.1990, another complaint Ex.A21 was given by the Plaintiff alleging that the Defendants daughter has closed the shop. As rightly observed by the lower Appellate court that Ex.A21 must have been created only to show as if the Plaintiff was dispossessed only on 21. 1990. Based on Ex.A21, it cannot be said that the Plaintiff was forcibly dispossessed from the tenanted premises on 28.01.1990. 13. Referring to various police complaints, the lower Appellate court has held that the Plaintiff had not come to the court with correct facts. The lower Appellate court arrived at its conclusion that the Plaintiff could not have been forcibly dispossessed on 28.01.1990 and the same cannot be interfered with. 14. The learned counsel for the Appellants submitted that in Ex.A19 complaint given to the police only the Plaintiffs wife has averred that the Landlady and her henchmen had thrown out the articles of the Appellant and it does not result the Appellant on being dispossessed on 21.01.1990 and the lower Appellate court ought to have accepted the case of the Plaintiff. This contention does not merit acceptance. Apart from Ex.A19 complaint, Plaintiff had also given complaint on 21. 1990 alleging demolition of shop by the Landlady and altering the same as house. Viewed in the back ground of Exs.A19 and A20 as held by the lower Appellate court, the Plaint averments do not contain correct facts and that the Plaintiff had not disclosed all material facts. 15. In a suit for Permanent Injunction, in order to entitle the Plaintiff to decree, it is obligatory on the Plaintiff to prove his possession on the date of filing of the suit. If the Plaintiff fails to make out a case regarding his possession, then his suit must fail. 16. 15. In a suit for Permanent Injunction, in order to entitle the Plaintiff to decree, it is obligatory on the Plaintiff to prove his possession on the date of filing of the suit. If the Plaintiff fails to make out a case regarding his possession, then his suit must fail. 16. It is well settled that no person in possession of the land can sue for injunction against the true owner unless he is able to maintain that either under agreement or under a statute he is entitled to the said relief even as against the true owner. In this case when the Plaintiff was not in occupation of the suit property on the date of filing of the suit, Permanent Injunction restraining the Defendant/Landlady from interfering with the Plaintiffs possession would be completely unjustified. The trial court has ignored the weight of evidence and also ignored the conduct of the parties. Upon appreciation of evidence and materials on record, the lower Appellate court has rightly reversed the findings of the trial court. The Judgment of the lower Appellate court does not suffer from any perversity warranting interference. 17. In the result, the Judgment of the lower Appellate Court in A.S. No.48/1995 dated 20.04.1995 on the file of the IV Additional Judge, City Civil Court, Chennai (arising out of the Judgment in O.S. No.924/1990 dated 22.07.1994 on the file of the I Assistant Judge, City Civil Court, Chennai) is confirmed and this Second Appeal is dismissed. No costs.