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Madras High Court · body

2009 DIGILAW 5189 (MAD)

K. Lakshmiammal v. M. P. Naveen Kumar & Others

2009-11-30

R.BANUMATHI

body2009
Judgment : The Second Appeal arises out of concurrent findings of Courts below decreeing respondents’/plaintiffs’ ejectment suit and also granting permanent injunction restraining first defendant from putting up any unauthorized construction. Unsuccessful first defendant is the Appellant. For convenience parties are referred in their original rank in the suit. .2. Civil Revision Petition is directed against the order in I.A.No.16791 of 1999 dismissing the petition filed under Section 9 of the City Tenants Protection Act which was confirmed in C.M.A.No.38/2006. Unsuccessful first defendant has filed this Revision Petition. 3. In the first Appellate Court, both Appeal and Civil Miscellaneous Appeal (arising out of I.A.No.16791 of 1999 in O.S.No.8449 of 1996) were heard together and disposed by common Judgment. Since common questions arise for consideration both Second Appeal and Civil Revision Petition were heard together and both shall stand disposed by this common Judgment. 4. Suit property relates to No.10, Valmiki Street, T.Nagar, Chennai-17, T.S.No.4793, about 350 sq.ft. The entire suit property was purchased by Vummidi Padmavathi Ammal under registered sale deed dated 111. 1940. The said Vummidi Padmavathi Ammal settled the property in favour of her daughter Vummidi Brinda Devi under registered settlement deed dated 01.07.1963. As per settlement deed, settlee to enjoy the suit property till her life time and after her death shall be taken absolutely by her children in equal shares. The said settlee Vummidi Brinda Devi died on 12. 1974. Vummidi Brinda Devi had three children and two children passed away and first plaintiff is the only surviving son. Second plaintiff is the husband of Vummidi Brinda Devi. After death of Vummidi Brinda Devi, mutation of Revenue and Municipal Corporation records were effected and Plaintiffs are absolute owners of the suit property. .5. Further case of the Plaintiffs is that Madhavan Nair, husband of first defendant became tenant in the suit property on a monthly rent of Rs.75/- in respect of asbestos roof shed under the said Vummidi Padmavathi Ammal. The said Madhavan Nair had been paying rent till his life time. After his death first defendant did not pay the rent and has not attorned the tenancy. First defendant has no right to put up any construction in the property belonging to Plaintiffs. In 1988, second defendant Corporation issued notices under Sections 256(1) and 256(3) of Madras City Municipal Corporation Act, calling upon the second Plaintiff to remove the unauthorized construction. After his death first defendant did not pay the rent and has not attorned the tenancy. First defendant has no right to put up any construction in the property belonging to Plaintiffs. In 1988, second defendant Corporation issued notices under Sections 256(1) and 256(3) of Madras City Municipal Corporation Act, calling upon the second Plaintiff to remove the unauthorized construction. Plaintiffs informed the officials that they have not put up any construction and that only first defendant is only attempting to put up unauthorized construction without planning permission. The second defendant Corporation did not initiate any proceedings for such illegal construction. Alleging that the first respondent has neither paid rent from January 1985 nor attorned the tenancy right with the Plaintiffs, the Plaintiffs filed suit for recovery of possession and also damages for three years at Rs.36,000/- (at the rate of Rs.1,000/-per month). 6. Resisting the suit, first defendant filed written statement contending that first defendant’s husband Madhavan Nair became a tenant in respect of vacant site to an extent of 600 sq.ft under Vummidi Brinda Devi and the said Madhavan Nair had put up superstructure and has been running tea stall from 1941. The said Madhavan Nair died on 312. 1984 and thereafter first defendant became a tenant in respect of the said land and she has paid the rent up to April 1992. First defendant has also transferred the licence for tea stall in her name. According to first defendant, in April 1992, Plaintiffs refused to receive the rent from the first defendant and have filed ejectment suit. 7. Case of first Defendant is that being wife of Madhavan Nair she has every right to continue the business of her husband and therefore her possession is not illegal and the suit for recovery of possession is not maintainable. The superstructure put up by the deceased Madhavan Nair in 600 sq.ft was removed and now only 450 sq,ft. superstructure is available and therefore, first defendant is entitled to purchase 600 sq.ft under Section 9 of the City Tenants Protection Act. First defendant further averred that she has paid rent up to April 1995, but the Plaintiffs are not in the habit of issuing receipts for the same. superstructure is available and therefore, first defendant is entitled to purchase 600 sq.ft under Section 9 of the City Tenants Protection Act. First defendant further averred that she has paid rent up to April 1995, but the Plaintiffs are not in the habit of issuing receipts for the same. First defendant had also taken defence plea that since the land and superstructure was let out to Madhavan Nair, remedy available to the Plaintiffs in only Tamil Nadu Buildings (Lease and Rent) Control Act and therefore suit as framed is not maintainable. 8. On the above pleadings as many as five issues were framed in the trail Court. In the suit, first defendant has filed I.A.No.16791 of 1999 seeking the benefit of Section 9 of City Tenants Protection Act. In the said application, both parties adduced oral and documentary evidence. On the side of first defendant, PW1 was examined and Exs. P1 to P17 were marked and on the side of Plaintiffs RW1 was examined and Exs.R1 to R22 were marked. In addition, Exs.C1 to C3 were also marked. .9. Holding that first defendant has not produced any document to show that first defendant is in enjoyment of the property as tenant from 1984 to 1992 and pointing out that first defendant did not pay the rent nor attorned tenancy, the trail Court held that first defendant would not be entitled to the benefit of Section 9 of the City Tenants Protection Act. Holding that no document was filed to prove Landlord and Tenant relationship between Plaintiffs and first defendant, the trail Court dismissed the application in I.A.No.16791 of 1999 and held that first defendant is not entitled to the benefit of Section 9 of the City Tenants Protection Act. While dismissing Section 9 application in I.A.No.16791 of 1999 on 10.01.2003, on the same day, trail Court decreed the suit directing delivery of possession and also ordering payment of damages of Rs.36,000/- to the plaintiffs at the rate of Rs.1000/-per month from 01.03.1989 to 31.03.1992. 10. Challenging dismissal of the suit and dismissal of Section 9 application in I.A.No.16791 of 1999 first defendant filed A.S.No.264 of 2003 and CMA.No.39 of 2006 respectively. 10. Challenging dismissal of the suit and dismissal of Section 9 application in I.A.No.16791 of 1999 first defendant filed A.S.No.264 of 2003 and CMA.No.39 of 2006 respectively. Pointing out that first defendant has not produced any document to show that she continued to be tenant even after 1984, the lower Appellate Court confirmed the judgment and decree of the trail Court and also the order of dismissal in I.A.No.16791 of 1999. The lower Appellate Court held that first defendant has not adduced evidence to prove her ownership to the superstructure. 11. Challenging the concurrent findings of Courts below, first defendant has filed Second Appeal and Revision. With consent of both the counsel, even in the admission stage, Second Appeal itself was taken up for final hearing. Learned counsel for Appellant advanced arguments on the following substantial questions of law:- 1. Whether or not the First Appellate Court is correct in dismissing the Appeal in AS. No.264/2003 and CMA No.38/2006 by way of common judgment without framing proper issues as provided under Order 41 Rule 25 of CPC? 2. Whether or not the first Appellate Court is correct in disposing the Appeal without framing an issue whether the suit is maintainable on the face of the plea raised by the plaintiff that a superstructure was leased out to one Madhavan Nair between 1941 to 1984 and the said Madhavan Nair who is none other than the husband of the Appellant? 3. Whether the failure to pay the rent and attornment of tenancy by the Appellant on and after the death of Madhavan Nair, from 1984 will confer jurisdiction on the Civil Court to entertain a suit for recovery of possession of the suit property from the legal heirs of the said Madhavan Nair, on the face of ouster of jurisdiction under Section 9 of CPC. 4. Whether or not the first Appellate Court has failed to appreciate the evidence adduced by the Appellant in proper perspective? 5. Whether or nor the first Appellate Court is correct in dismissing the Appeal in CMA No.38/2006 without even giving a finding whether the Appellant is a tenant or not within the meaning of the City Tenants Protection Act. 6. Whether or not the first appellate Court is entitled to dismiss the Appeal in A.S.No.264/2003 for the sole reason that the application under Section 9 filed by the appellant is not maintainable? 7. 6. Whether or not the first appellate Court is entitled to dismiss the Appeal in A.S.No.264/2003 for the sole reason that the application under Section 9 filed by the appellant is not maintainable? 7. Whether or not the First Appellate Court is correct in decreeing the suit for recovery of possession, when there is no finding that this appellant is a trespasser and when the plaintiff has failed to establish the date of trespass? 12. Mr. K. Sukumaran, learned counsel for the Appellant submitted that when the Plaintiff has pleaded what was let out to Madhavan Nair was a superstructure, on the face of it civil suit is not maintainable. It was further submitted that even if the 1st Defendant denied the tenancy, the denial of tenancy by the 1st Defendant by itself will not oust the jurisdiction of Rent Control Courts. Placing reliance upon AIR 1965 SC 338 (Athmanathaswami Devastjanam v. K. Gopalaswami); (1981) 1 SCC 523 (Natraj Studios (P) Ltd. v. Navrang Studios and another); 1984 LW 172 (Lodd Balamukundas v. K. Kothandapani and others) and 1988 (1) LW 409 (Ariyakudi Kalayana Krishna Hospital Trust by managing Trustee, VR.RM.K.Ramaswami Chettiar and others), it was further argued that when the Courts below have dismissed application under Sec.9 of City Tenants Protection, suit ought to have been dismissed with a direction to the Plaintiffs to approach the Rent Control Court. 13. Mr. R. Thiagarajan, learned counsel for the Respondents 1 and 2/plaintiffs submitted that when the Appellant-1st Defendant denied title of landlord, under Sec.111 (g) of Transfer of Property Act, there is forfeiture of lease and Appellant has renounced her character as tenant and therefore, Civil suit was well maintainable. It was further argued that even though, evidence was recorded in I.A.No.16791/1999 under Sec.9 of CTP Act and when the trail Court held that 1st Defendant is not entitled to the benefits under Sec.9 of CTP Act, the suit was necessarily to be decreed. 14. The substantial question of law raised by the Appellant is whether failure to pay the rent and attornment of tenancy by the Appellant after the death of Madhavan Nair will confer jurisdiction on the civil court to entertain the suit for recovery of possession of the suit property. 14. The substantial question of law raised by the Appellant is whether failure to pay the rent and attornment of tenancy by the Appellant after the death of Madhavan Nair will confer jurisdiction on the civil court to entertain the suit for recovery of possession of the suit property. Learned counsel for the Appellant contended that the stand taken by the Appellant that she is the tenant in respect of vacant land owner of superstructure in the suit property will not confer jurisdiction on the civil Court to entertain the suit for recovery of possession. It was further argued that when Plaintiff has admitted that Madhavan Nair, husband of Appellant was a tenant in respect of superstructure, ejectment suit was not maintainable. It was mainly argued that the inconsistent plea taken by the Appellant1st Defendant cannot confer jurisdiction to entertain ejectment suit when the Plaintiffs have categorically pleaded that what was let out to Madhavan Nair was a superstructure. Learned counsel would further contend that having dismissed I.A.No.16791/1999-application under Sec.9 of CTP Act and when trail court concluded that what was let out was only a superstructure, trail court ought to have dismissed the suit as not maintainable and ought to have directed the Plaintiffs to file Rent Control Original Petition before the Rent Control Court. 15. Learned counsel for the Appellant placed reliance upon AIR 1965 SC 338 (Athmanathaswami Devastjanam v. K. Gopalaswami) wherein the Supreme Court has held that in tenancy matters only Revenue Court alone has the jurisdiction over the suit and therefore in ordering return of the Plaint for presentation to the proper Court. Contending that only Rent Control Court has exclusive jurisdiction to entertain the suit, learned counsel for the Appellant also placed reliance upon (1981) 1 SCC 523 (Natraj studios (P) Ltd. v. Navrang Studious and another). The said case arose out of Bombay Rent Control Act where the Supreme Court has held as under:- “16…….. Contending that only Rent Control Court has exclusive jurisdiction to entertain the suit, learned counsel for the Appellant also placed reliance upon (1981) 1 SCC 523 (Natraj studios (P) Ltd. v. Navrang Studious and another). The said case arose out of Bombay Rent Control Act where the Supreme Court has held as under:- “16…….. Section 28(1) of the Bombay Rent Act, positively, confers jurisdiction on the court of Small Causes to entertain and try any suit or proceeding between a landlord and tenant relating to the recovery of rent or possession of any premises or between a licensor and a licensee relating to the recovery of licence fee or change and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions, and negatively it excludes the jurisdiction of any other court from entertaining any such suit, proceeding or application or dealing with such claim or question.” The Supreme Court further held that- “18. ….. A person claiming to be landlord may sue his alleged tenant for possession of a building on grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit, the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of Court of Small Causes. If ultimately the court finds that the defendant is not a tenant the suit will fail for that reason. If the suit is instituted in the ordinary Civil Court instead of the court of Small Causes the plaint will have to be returned irrespective of the plea of the defendant. Conversely a person claiming to be the owner of a building and alleging the defendant to be trespasser will have to institute the suit, on the plaint allegations, in the ordinary Civil Court only. In such a suit the defendant may raise the plea that he is tenant and not a trespasser. The defendant’s plea will not straight away oust the jurisdiction of the ordinary Civil Court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. In such a suit the defendant may raise the plea that he is tenant and not a trespasser. The defendant’s plea will not straight away oust the jurisdiction of the ordinary Civil Court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other jurisdictional questions may have to be determined by the court where it falls for determination-be it the Court of Small Causes or the ordinary Civil Court. If the jurisdictional question is decided in favour of the Court of exclusive jurisdiction the suit or proceeding before the ordinary Civil Court must cease to the extent its jurisdiction is ousted.” .16. In 1984 LW 172 (Lodd Balamukundas v. K. Kothandapani and others), Plaintiff has come to the Court for Injunction restraining the sub-tenant from attorning directly to the landlord. Chief-tenant filed suit as against the owner/landlord restraining him from taking possession of the suit property. Since only vacant land was let out the chief-tenant and he had put up superstructure and claimed that he is entitled to claim benefits provided in City Tenants Protection Act. In such facts and circumstances of such case, this Court held that “Both the courts have come to the conclusion that what was leased out was not the vacant site only but the superstructures standing thereon and, therefore, the question of the first respondent claiming any protection under the Madras City Tenants Protection Act did not arise. On this finding of the courts below, the suit should have been dismissed and there was absolutely no scope for going into any other consideration”. Since, in the said case Courts have come to the conclusion that what was leased out was not vacant site; but the superstructures standing thereon, Court held that suit should have been dismissed. In the case on hand, Plaintiffs have come out with a definite case that the zinc shed along with vacant site was leased out to Madhavan Nair and therefore, the above decision relied upon by the learned counsel for the Appellant would not apply to the facts of the case on hand. 17. In the case on hand, Plaintiffs have come out with a definite case that the zinc shed along with vacant site was leased out to Madhavan Nair and therefore, the above decision relied upon by the learned counsel for the Appellant would not apply to the facts of the case on hand. 17. Reliance was also placed upon AIR 1993 Bombay 1 (C.K. Talwar v. M/s. Rallis India Limited) wherein the Bombay High Court has held that “A person claiming to be a landlord may sue his alleged tenant for possession of a building on the grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of the Court of Small Causes. If ultimately the Court finds that the defendant is not tenant the suit will fail for that reason. If the suit is instituted in the ordinary Civil Court instead of the Court of Small Causes the plaint will have to be returned irrespective of the plea of the defendant.” For the same proposition that as against the tenant civil suit is not maintainable reliance was also placed upon AIR 1995 SC 2001 [Most Rev. P.M.A. Metropolitan and others etc. v. Moran Mar Marthoma and another etc.]: AIR 1996 SC 982 = 1997-2-L.W.259 (B.G. Kumaravelu and another v. K.R. Kanakarathnam Chetty and others); AIR 1996 SC 2664 (State of Gujarat v. Rajesh Kumar Chimanlal Barot and another) and 1996 (1) LW 689 (P. Rukmani v. R. Narayani and 6 others). .18. It was also contended that civil Court did not have jurisdiction to entertain the suit and therefore, the decree passed without jurisdiction is a nullity and that defect of jurisdiction whether it is pecuniary or territorial cannot be cured by consent of parties, reliance was placed upon (2002) 3 MLJ 404 = 2002-3-L.W. 720 (K. Narasimhan (deceased) and others v. K. Rajagopal). 19. It is well settled that when landlord sues the tenant inter alia for recovery of possession, suit will have to be brought in the Small Causes Court/Rent Control Court. 19. It is well settled that when landlord sues the tenant inter alia for recovery of possession, suit will have to be brought in the Small Causes Court/Rent Control Court. The catena of decisions relied upon by the learned counsel for the Appellant reiterate the well settled position that the landlord suing his tenant for possession of a building, suit will have to be brought in the Court of Small Causes/Rent Control Court which has been made the Court of exclusive jurisdiction. In such suit, Defendant may deny the tenancy, but denial by the Defendant itself will not oust the jurisdiction of Rent Control Court. If the suit is instituted in the ordinary civil Court instead of Rent Control Court, Plaint will have to be returned irrespective of the plea of the Defendant. 20. The above decisions are not applicable to the case on hand. In the case on hand, suit was filed by the landlord for eviction of legal heirs of the deceased tenant Madhavan Nair who became tenant of the superstructure. Suit has been filed for recovery of possession of zinc shed and also site thereon measuring about 600 sq.ft. Case of Plaintiffs is that 1st Defendant’s husband Madhavan Nair was inducted as tenant by the first Plaintiff’s grand mother. After the death of Madhavan Nair, Appellant did not attorn the tenancy nor paid the rent. Courts below recorded concurrent findings that at the time of filing of the suit, Appellant was not a tenant. In the written statement, 1st Defendant did not raise plea that what was leased out was only the building and 1st Defendant has not raised objection as to maintainability of the suit. On the other hand, in the written statement, 1st Defendant has only pleaded that after her husband’s death, 1st Defendant was a tenant of the vacant site under the Plaintiffs and having put up their own superstructure and 1st Defendant is entitled to rights under Sec.9 of CTP Act to purchase the land which is necessary for running business of 1st Defendant. .21. 1st Defendant claimed though originally the superstructure was put up for the entire extent of land in 600 sq.ft., at the time of attending to repair in 1992, about 150 sq.ft. of shed was removed and now 450 sq.ft. of shed is being used along with 150 sq.ft. of vacant land by the 1st Defendant and her sons. .21. 1st Defendant claimed though originally the superstructure was put up for the entire extent of land in 600 sq.ft., at the time of attending to repair in 1992, about 150 sq.ft. of shed was removed and now 450 sq.ft. of shed is being used along with 150 sq.ft. of vacant land by the 1st Defendant and her sons. Stating that 1st Defendant is entitled to purchase the land of an extent of 600 Sq.ft., 1st Defendant filed application in I.A.No.16791/1991 under Sec.9 of CTP Act. In the said Petition, 1st Defendant raised specific plea that the area leased out to Madhavan Nair was 600 sq.ft. vacant land and 1st Defendant’s husband was permitted to put up a superstructure and accordingly 1st Defendant’s husband put up the superstructure for the entire extent of 600 sq.ft. and was running a Tea stall with necessary licence from the authorities concerned. In the said application, 1st Defendant further averred that in order to deprive of her rights to purchase the land under Sec.9 of CTP Act, adopting short cut method, Plaintiffs have filed the suit as if her husband (Madhavan Nair) was tenant in respect of both the land and superstructure. 22. The averments in I.A.No.16791/1999 was reiterated during oral evidence recorded in I.A.No.16791/1999. In his chief-examination, PW1-Ananthakrishnan, son of 1st Defendant stated that his father Madhavan Nair became a tenant under the 1st Plaintiff’s grand mother Vummidi Padmavathiamma during 1941 and the area leased out to Madhavan Nair was 600 sq.ft. of vacant land and that his father was permitted by Vummidi Padmavathiamma to put up superstructure. Having taken specific stand that only vacant site was leased out and that Madhavan Nair had put up superstructure and having filed Petition under Sec.9 of CTP Act, 1st Defendant cannot turn round and contend that civil suit is not maintainable and that Plaintiffs ought to have approached the Rent Control Court/Court of Small Causes. 23. In so far as tenancy, definite case of Plaintiffs is that after the demise of Madhavan Nair in 1984, 1st Defendant disputed the tenancy and never attorned the tenancy infavour of Plaintiff nor paid the rent. When the 1st Defendant did not attorn the tenancy nor paid the rent, under Sec.111 (g) of Transfer of Property Act, 1st Defendant renounced her character as tenant. Sec.111 (g) of Transfer of Property Act reads as under:- “111. When the 1st Defendant did not attorn the tenancy nor paid the rent, under Sec.111 (g) of Transfer of Property Act, 1st Defendant renounced her character as tenant. Sec.111 (g) of Transfer of Property Act reads as under:- “111. Determination of lease.- a lease of immovable property determines ……………… (g) by forfeiture: that is to say,-(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may reenter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. .24. Considering the scope of Sec.111(g) of Transfer of Property Act in 1998 (2) LW 7 (Palani Ammal v. Viswanatha Chettiar (dead and others), the Supreme Court held as under;- .“16. ……Once the tenant incurs forfeiture of the lease under Cection 111 (g) of the T.P.Act by renouncing his character as tenant of the landlord by setting up a title in third person or in himself there would be no occasion for such a tenant to invoke Section 9 as Section 9 by itself pre-supposes that the tenant must accept the owner of the land as landlord and against whom he can claim appropriate relief by offering to purchase the land over which his structure stands on payment of price fixed by the court to such landlord who then has to convey his right, title and interest in the land in favour of such tenant owning the structure. Consequently it must be held that for operation of Section 9 an admitted relationship of landlord and tenant must exist. If the tenant alleges that landlord is not the real owner of the property, but somebody else is the owner or he himself is the owner, there would remain no occasion for him to offer any price of such land to such landlord whom he treats as a stranger to that land ………..” 25. Once the 1st Defendant hasdenied the tenancy of superstructure and did not attorn tenancy under Sec.111 (g) of T.P. Act there is forfeiture of tenancy. Once the 1st Defendant hasdenied the tenancy of superstructure and did not attorn tenancy under Sec.111 (g) of T.P. Act there is forfeiture of tenancy. While so, placing reliance upon 1998 (2) LW 7 (Palani Ammal v. Viswanatha Chettiar (dead) and others), 1st Defendant cannot seek the protection under Sec.9 of CTP Act. 1st Defendant had not produced any document to show her continued tenancy after 1984. The documents produced by the 1st Defendant in I.A.No.16791/1999 were only the licence for running Tea Stall. Absolutely, there was no evidence to prove the subsisting tenancy. In fact, 1st Defendant herself did not get into the box and only her son aged 34 years was examined as PW1. As held by courts below, PW1 would not have had personal knowledge of commencement of tenancy and terms thereon. Courts below rightly held that 1st Defendant had not established her subsisting tenancy. .26. Evidence was recorded and documents were also produced only in I.A.No. 16791/1999 filed under Sec.9 of CTP Act. Holding that 1st Defendant is not entitled to the benefits under Sec.9 of CTP Act, trail court dismissed the application on 1. 1993. On the same day 1. 2003, suit was also decreed. On behalf of the Appellant, it was contended that when Sec.9 application was dismissed, separate evidence ought to have been recorded by the trail court. It was further submitted that upon dismissal of Sec.9 application, trial court automatically decreed the suit without recording the finding on each Issues. 27. The first question of law raised is that lower Appellate court did not frame proper Issues as provided under Or.41, R.25 CPC. It is incumbent on the lower Appellate Court which is the final Court of fact to consider independently the entire facts and law and give its own findings. Where trail court omitted to frame Issues, under Or.41, R.25 CPC, Appellate Court may frame Issues and refer them for trail to Court whose decree is appealed from. Or.41, R.25 CPC reads as under:- “R.25. Where trail court omitted to frame Issues, under Or.41, R.25 CPC, Appellate Court may frame Issues and refer them for trail to Court whose decree is appealed from. Or.41, R.25 CPC reads as under:- “R.25. Where Appellate Court may frame issues and refer them for trail to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trail to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore (within such time as may be fixed by the Appellate Court or extended by it from time to time)” If it appears to the Appellate Court that any fact essential for the right decision of the suit was to be determined, it could frame an Issue on the point and refer the same to the trail court and direct such court to give finding after recording additional evidence. By perusal of the materials, it is seen that Appellate Court did not insist for framing of any Issues in the suit and either for remanding the case to the trial court under Or.41, R.25 CPC or call for finding on any specific Issues. Appellant was only vigorously persuading C.M.A.No.38/2006 filed against the dismissal of application under Sec.9 of CTP Act. 28. Since the Appellant-1st Defendant did not prove her subsisting tenancy, Petition filed under Sec.9 of CTP Act was rightly dismissed by the trail court and lower Appellate Court. The concurrent findings of the Courts below do not suffer from any infirmity warranting interference. In a catena of decisions, Supreme Court has held that as general rule, where the findings of the courts below based on evidence and when the Courts below recorded concurrent findings of fact, High Court will not normally interfere with the concurrent findings of the Courts below exercising jurisdiction under Sec.100 CPC. (See 2009 (4) LW 125 Narayanan Rajendran and another v. Lekshmy Sarojini and others). (See 2009 (4) LW 125 Narayanan Rajendran and another v. Lekshmy Sarojini and others). The Revision filed by the Appellant in C.R.P.No.3277/2009 is liable to be dismissed. 29. S.A.No.1034/2007: In the result, the Judgment of the lower Appellate Court in A.S.No.264/2003 dated 31.08.2007 on the file of Additional District and Sessions Judge, Fast Track Court No.III, Chennai (arising out of the Judgment in O.S.No.8449/1996 dated 10.01.2003 on the file of II Assistant Judge, City Civil Court, Chennai) is confirmed and the Second Appeal is dismissed. No costs. Consequently, connected MPs. are closed. 30. C.R.P.No.3277/2009: In the result, the order in C.M.A.No38/2006 dated 31.08.2007 on the file of Additional District and Sessions Judge, Fast Track Court No.III, Chennai (arising out of the order in I.A.No.16791/1999 dated 1. 2003 on the file of II Assistant Judge, City Civil Court, Chennai is confirmed and the Revision is dismissed. No costs. Consequently, connected MPs. are closed.