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2010 DIGILAW 3338 (MAD)

A. Issac v. Abdul Aziz

2010-08-04

M.VENUGOPAL

body2010
JUDGMENT :- 1. The Appellant/Plaintiff has filed this Second Appeal before this Court as against the Judgment and Decree dated 28.02.1997 made in A.S. No.45 of 1996 on the file of Learned First Additional District Judge -cum- Chief Judicial Magistrate, Erode. 2. The First Appellate Court viz. the Learned First Additional District Judge -cum- Chief Judicial Magistrate, Erode while passing the Judgment dated 28.02.1997 in A.S. No.45 of 1996 has among other things observed that the Appellant/Plaintiff has been helping his Father viz. Respondent/Defendant and when the Respondent/ Defendant (Father) has obtained the licence, then the Appellant/ Plaintiff is not entitled to claim the relief of injunction against the Respondent/Defendant and resultantly dismissed the Appeal without costs. 3. Before the Trial Court in the suit filed by the Appellant/ Plaintiff, two issues have been framed for determination. On the side of the Appellant/Plaintiff witnesses PW1 and 2 have been examined and Exs.A1 to A13 have been marked. On the side of the Respondent/ Defendant witnesses DW1 and 2 have been examined and Exs.B1 to B11 have been marked. 4. The Trial Court on an appreciation of oral and documentary evidence available on records has come to the conclusion that "though the Appellant/Plaintiff has been enjoying the suit property, since only the Respondent/Defendant has obtained the licence in his name and when the Appellant/Plaintiff has not established his right as against the Respondent/Defendant, the Appellant/Plaintiff is not entitled to claim any relief in the suit and consequently the suit has been dismissed, directing the parties to bear their own costs. 5. Being dissatisfied with the Judgment and Decree passed by the First Appellate Court viz. the First Additional District Judge -cum-Chief Judicial Magistrate, Erode in A.S. No.45 of 1996 dated 28.02.1997, the Appellant/Plaintiff has projected the Second Appeal before this Court. 6. At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law: "1. Is not the admission being the substantial evidence amount to Estoppel to deny the Appellants title? 2. Have not both the courts below committed an error of law in not holding that the above admission in the absence of withdrawal and explanation is binding on the Respondent/Defendant? 7. Is not the admission being the substantial evidence amount to Estoppel to deny the Appellants title? 2. Have not both the courts below committed an error of law in not holding that the above admission in the absence of withdrawal and explanation is binding on the Respondent/Defendant? 7. The Contentions, Discussions and Findings on substantial question of law 1 and 2: According to the Learned Counsel for the Appellant/Plaintiff, both the courts below have committed error in coming to the conclusion that the Appellant/Plaintiff is not a Licensee -cum- Lessee that the Municipality and as such is not entitled to the relief of injunction and this Finding of the courts below is contrary to Law and Evidence. 8. Advancing his arguments, the Learned Counsel for the Appellant/Plaintiff contends that both the courts have not given due weight to the admission made by the Respondent/Defendant (Father) that he has given up his interest in the shop and that the Appellant/Plaintiff alone has been in occupation by conducting the business exclusively and indeed, the said admission is fatal to the stand of the Respondent/Defendant and on that ground alone the suit ought to have been decreed by the courts below. 9. It the further contention of the learned counsel for the Appellant/Plaintiff that the licence standing in the name of the Respondent/Defendant (Father) is totally irrelevant among members of the one and the same family and that apart it is not open to the Respondent/Defendant (Father) to approbate and reprobate in the matter in issue. 10. The pith and substance of the contention projected by the Learned Counsel for the Appellant/Plaintiff is that both the courts below have not taken into account of the factual aspects of the matter in a proper perspective which has ultimately resulted in an erroneous Judgment being passed against the Appellant/Plaintiff and therefore prays for allowing the Appeal to prevent an aberration of justice. 11. 11. In response, the Learned Counsel for the Respondent/ Defendant submits that the Respondent/Defendant (Father) of Appellant/Plaintiff is the licensee of the mutton stall in the market and the licence stands in the name of only the Respondent/Defendant and when that being the factual position then, it is not open to the Appellant/Plaintiff to seek a relief of permanent injunction against the Respondent/Defendant in law and more over the courts below have taken note of the relevant facts and circumstances of the case in a conspectus fashion and arrived at a proper conclusion which need not be interfered with at this stage of the Second Appeal. 12. This Court has heard the contentions of the Learned Counsel appearing for the parties and noticed their contentions. 13. A reading of the Plaint filed by the Appellant/Plaintiff shows that the Appellant/Plaintiff has produced some of the Counter Challans for the payment of licence under the Occupation of Prevention of Food Adulteration Act and fees for running of shop in daily market and he has taken the licence for the suit shop in respect of the year 1993-94 by paying the licence fee on 09.02.1993 etc. 14. According to the Appellant/Plaintiff, he is in possession and enjoying the suit mutton stall as tenant under the Erode Municipality through licence and the Respondent/Defendant (Father of Appellant/ Plaintiff) is not doing any business in the suit property. 15. It is also represented on behalf of the Appellant/Plaintiff that there is a dispute arising between the Appellant/Plaintiff (Son) and the Respondent/Defendant (Father) in regard to the payment of Seer etc. to his sisters and at the instigation of the sisters, the Respondent/Defendant (Father) is tried to disturb the Appellants/ Plaintiffs peaceful possession and enjoyment of the suit property. Further, the Respondent/Defendant has come along with rowdies to take forcibly the possession of the suit property from the Appellant/Plaintiff and this has resisted by the Appellant/Plaintiff with the help of neighbours. Hence, the Appellant/Plaintiff has filed the present suit praying for the relief of permanent injunction restraining the Respondent/Defendant his men, agent etc. from interfering into his peaceful possession and enjoyment of the suit property. 16. Hence, the Appellant/Plaintiff has filed the present suit praying for the relief of permanent injunction restraining the Respondent/Defendant his men, agent etc. from interfering into his peaceful possession and enjoyment of the suit property. 16. However, the Learned Counsel for the Respondent/ Defendant (Father) urges before this court that in another suit, the Respondent/Defendant (Father) has deposed that he has grown old and therefore he is unable to do any business and who is depending his son and such a deposition can never confer any right, title or interest in or over the license granted by the Erode Municipality and as such the Appellant/Plaintiff is not entitled to claim the relief of permanent injunction. 17. It is evident from Ex.A3 Deposition of the Respondent/ Defendant (Father in E.P. No.16 of 1992 on the file of the First Additional District Munsif, Erode) that he has been running the mutton stall business for the past 10 years and that presently his son is running the said business and that he has no independent income and that he has parted with the property that he received in favour of his wife as per Ex.B1 document etc. 18. It is the evidence of PW1 (Appellant/Plaintiff) that he has studied upto 8th standard and he and his father from the year 1985 have been running the mutton business and for running the mutton business one has to get licence from the Erode Municipality and in the year 1985 his Father has handed over the said mutton shop to him and on that time he has handed over all the Municipality receipts to him and per year a fee of Rs.110/- has to be paid and Ex.A1 relates to the payment of fee for the year 1993-94 and Ex.A2 is the receipt given by the Erode Municipality and from the year 1985 he has been in enjoyment of the suit property and at the time of filing of the suit his father has not been doing the mutton selling business. 19. PW1 in his cross examination has specifically stated that in the suit place for running the mutton stall, he does not know the year in which the Father has obtained a license and it is incorrect to state that he has obtained the licence for running the mutton stall before 40 years. 20. 19. PW1 in his cross examination has specifically stated that in the suit place for running the mutton stall, he does not know the year in which the Father has obtained a license and it is incorrect to state that he has obtained the licence for running the mutton stall before 40 years. 20. It is the candid evidence of PW1 that his Father has changed the licence of the suit shop in his favour, he does not know whether his Father has written anything to the Municipality and the shop licence in respect of the suit shop has been changed in his name when his father has orally informed and he has not filed any receipt from the year 1985 till 1993 to show that he has been running the shop and paying the fee. 21. PW2 in his evidence has stated that the Appellant/Plaintiff is running the mutton stall in the daily market bearing No.F30 and before the Appellant/Plaintiff his Father has running the said mutton stall for the last 10 years and the Appellant/Plaintiff is running the mutton stall. 22. DW1 (Appellants/Plaintiffs Father) in his evidence has deposed that he has obtained a licence for the suit shop 40 years ago and for running the mutton shop, he has obtained the said license and he has performed the marriage to the Appellant/Plaintiff 3½ years ago and after marriage, the Appellant/Plaintiff used to indulge in quarrel. If he has not paid the money for his expenses and the Appellant/Plaintiff knows that there is a loan of Rs.50,000/- in the mutton business and that loan has not been paid. 23. It is the specific evidence of DW1 that the licence has not been changed in the name of Appellant/Plaintiff and after filing of the suit, the Appellant/Plaintiff has come to beat them, for which a police complaint has been lodged and before the police, the Appellant/ Plaintiff has given any right that he will not come and create trouble. 24. It is the specific evidence of DW1 that the licence has not been changed in the name of Appellant/Plaintiff and after filing of the suit, the Appellant/Plaintiff has come to beat them, for which a police complaint has been lodged and before the police, the Appellant/ Plaintiff has given any right that he will not come and create trouble. 24. DW2 in his evidence has stated that the Appellant/Plaintiff has been helping his Father as an Assistant and for the past one year, the Appellant/Plaintiff is running the shop and for the past 30 years, the Respondent/Defendant has been running the shop and he does not know for the past five or six years who is paying the licence fee in respect of the shop and for the past one year because of the trouble the Respondent/Defendant is not coming to the suit shop. 25. At this juncture, the Learned Counsel for the Appellant/ Plaintiff contends that in view of the admission made by the Respondent/Defendant in Ex.A3 deposition that presently his son is running the mutton stall, the said admission is the best form of evidence and to lend support to the said contention he relies on the decision of this Court R.Anandavalli vs Alagammal and others reported in 1993 1 MLJ page 15 wherein it is observed as follows: "Admission is the best form of evidence and the Plaintiff can certainly rely on it. In the present case, no attempt whatsoever has been made by the Defendants to show that the said admission was wrong. When the Defendants themselves have not given any explanation, the court cannot on some presumption think that the admission may not be true." 26. Merely because the Respondent/Defendant as RW1 in Ex.A3 has deposed that presently son is running the mutton stall, in the absence of any license in favour of the Appellant/Plaintiff in regard to the suit mutton stall, the Appellant/Plaintiff cannot take advantage of the said deposition of the Respondent/Defendant (Father) in the considered opinion of this Court. 27. Merely because the Respondent/Defendant as RW1 in Ex.A3 has deposed that presently son is running the mutton stall, in the absence of any license in favour of the Appellant/Plaintiff in regard to the suit mutton stall, the Appellant/Plaintiff cannot take advantage of the said deposition of the Respondent/Defendant (Father) in the considered opinion of this Court. 27. Also, it cannot be lost sight of that as far as the Erode Municipality is concerned, the Respondent/Defendant is the person who is a licensee and though the Appellant/Plaintiff has taken a stand that the licence for the suit shop has been changed in his name, but there is absence of proof in this regard and hence this Court is not accepting the plea of the Appellant/Plaintiff in this regard. 28. Further more, from Ex.B3 Memo it is clear that the Respondent/ Defendant has paid the licence fee for the year 1984-85, 85-86, 90-91 and 92-93. Even from Ex.B5, it is clear that the Respondent/Defendant has paid a sum of Rs.138/- for renewing the licence and even Ex.B6 relates to the payment of Rs.130/-towards licence fee for 3/94 year. 29. Moreover, when the fact remains the Respondent/Defendant has obtained the licence and later when he has renewed the same and as far as the Erode Municipality is concerned, it is quite clear that the Respondent/Defendant is the licensee and not the Appellant/ Plaintiff. Though a serious endeavour has been made on the side of Appellant/Plaintiff to show that the Respondent/Defendant has admitted in Ex.A3 deposition that his son is running the shop that statement/deposition will not enure to the benefit of the Appellant/ Plaintiff because of the simple fact that he has been only assisting the Respondent/Defendant viz. his Father and even otherwise when the Respondent/Defendant is the licensee then it is not open to the Appellant/Plaintiff to file a suit against his Father viz. the Respondent/Defendant and to claim the relief of permanent injunction 30. his Father and even otherwise when the Respondent/Defendant is the licensee then it is not open to the Appellant/Plaintiff to file a suit against his Father viz. the Respondent/Defendant and to claim the relief of permanent injunction 30. On an appreciation of the relevant facts and circumstances of the case mentioned supra and in short, looking at from any angle, it is quite evident from the evidence on record that the Respondent/Defendant has been running the mutton stall for the last 30 years and in the light of detailed discussions mentioned supra, this Court comes to inescapable contention that the Appellant/Plaintiff is not entitled to claim the relief of permanent injunction against the Respondent/Defendant and viewed in that perspective the two substantial questions of law are answered against the Appellant/ Plaintiff and resultantly the Second Appeal fails. 31. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court viz. Learned First Additional District Judge -cum-Chief Judicial Magistrate in A.S. No.45 of 1996 dated 28.02.1997 and the Judgment and Decree dated 08.03.1996 in O.S. No.341 of 1993 on the file of Principal District Munsif, Erode, Periyar District are affirmed by this Court for the reasons assigned by this Court.