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2012 DIGILAW 2320 (MAD)

Gnanammal v. Pappathi alias Arockiamary

2012-06-07

T.RAJA

body2012
Judgment :- 1. The present Second Appeals have been filed by Gnanammal and her legal heirs, questioning the correctness of the Judgment and decree, dated 20.10.2005, passed by the Principal Subordinate Court, Coimbatore, in A.S. Nos.134 of 2005 and 137 of 2005, confirming the judgment and decree, dated 10.02.2005, of the I Additional District Munsif Court, Coimbatore, in O.S. Nos.664 of 2001 and 1400 of 2004. 2. Gnanammal had filed Original Suit No.664 of 2001 on the file of the First Additional District Munsif Court, Coimbatore. A widow, struggling with her children under penurious circumstances for survival, she settled down in India during 1965 as a refugee from Burma. She pleaded that, expressing her pathetic position as a poor refugee from Burma, she had appealed to the Government of Tamil Nadu for allotment of a house site for dwelling, whereupon, Site No.13 in S.F. No.379/2 in Burma Colony, Saravanampatti, Coimbatore, was allotted to her and after constructing a house, she started living therein along with her children. She was issued with a communication letter, dated 02.11.1973, from the Director of Rehabilitation; Rehabilitation Certificate dated 17.07.1965 and also joint patta dated 19.09.2000 from the Zonal Deputy Tahsildar, Coimbatore. It was further pleaded that, while so, the defendant/Pappathi @ Arockiamary, who was serving as a housemaid at the plaintiff's house, on securing a job at Sankara Eye Hospital as Sweeper on a monthly salary of Rs.2,000/-, gave up the housemaid work, and sometime during January, 1999, she had approached the plaintiff to let out a room on rent for her stay during nights and holidays. Accepting her request, the appellant herein had let out to the defendant a portion of the house on the eastern side for a rent of Rs.200/- per month and the defendant agreed to pay the rent on or before the 5th day of every English calendar month and, on that basis, the defendant stayed as a tenant. But, only a few days after taking possession of the rented premises, the defendant started quarrelling with the plaintiff by using filthy language and behaving like the landlady of the premises let out to to her by the plaintiff. Further, in an endeavour to wrongfully assert that she was the landlady, the defendant started to construct a wall so as to prevent the plaintiff's ingress and egress and to stall the repair work carried out at the plaintiff's house. Further, in an endeavour to wrongfully assert that she was the landlady, the defendant started to construct a wall so as to prevent the plaintiff's ingress and egress and to stall the repair work carried out at the plaintiff's house. Left with no other alternative, the plaintiff had lodged a complaint with Saravanampatti Police Station on 21.2.2001. Since the defendant still endeavoured to usurp the property, the plaintiff ultimately filed the suit in O.S. No.664 of 2001 for delivery of peaceful possession of the suit property with a consequential prayer for the relief of permanent injunction restraining the defendant and her men from in any manner interfering with the suit property by way of construction or modification and also for a direction to the defendant to pay to the plaintiff damages for use and occupation of the suit property at the rate of Rs.500/-per month with effect from the date of institution of the suit until delivery of possession of the suit property to the plaintiff. 3. After filing of the aforesaid Suit in O.S. No.644 of 2001 by the appellant herein in April, 2001, the respondent herein/Pappathi @ Arockiamary as plaintiff had also filed a Suit in O.S. No.532 of 2001 (on the file of the Sub Court, Coimbatore) which was later transferred to I Additional District Munsif Court, Coimbatore, and numbered as O.S. No.1400 of 2004. The prayer therein was to pass a decree for partition of the suit property into two equal 1/2 shares and allot the plaintiff-Pappathi @ Arockiamary the eastern half enjoyed by her and to grant in her favour an order of permanent injunction, restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the eastern half of the suit property and also to award costs of the suit. 4. 4. After filing of written statements by both sides in the respective suits, the trial court/I Additional District Munsif Court at Coimbatore, tried both the suits together and, after considering the oral and documentary evidence adduced on both sides, by judgment and decree dated 10.02.2005, with categorical findings that the suit property originally belonged to one Vadivel; that neither the said Vadivel nor his legal representatives were brought on record; that Vadivel, after leaving Coimbatore during 1975, never returned back to claim the property and that the respective plaintiffs, who are appellants and respondent herein, have been in joint possession in Vadivel's property since 1981; ultimately, the trial court negatived the prayers of the plaintiffs for delivery of possession and partition, however, only based on the fact and evidence that the plaintiffs viz., Gnanammal - a Burmese Refugee & widow and Pappathy @ Arockiamary, a deserted lady by the husband, are continuously residing in portions of the property ever since 1981, granted the relief of permanent injunction alone to both the plaintiffs operating against each other in respect of the respective portions occupied and enjoyed by them. 5. The appellant herein challenged the verdict of the trial court before the Principal Sub Court, Coimbatore, by filing A.S. Nos.134 and 137 of 2005, and vide Judgement and decree dated 20.10.2005, by agreeing with the finding of the trial court that both the plaintiffs, one of whom is a Burmese Refugee and widow while the other is a deserted lady by the husband, have been continuously residing in their respective portions/tiled house put up by them since 1981 in the site belonged to one Vadivel, who after going to Madras never returned back, and by concurring with the ultimate verdict that the plaintiffs are entitled only for permanent injunction operating against each other in respect of the respective portions occupied by them, the lower appellate court affirmed the judgment and decree passed by the trial court; hence, the present Second Appeals. 6. This Court, at the time of entertaining the Second Appeal, formulated the following substantial questions of law for consideration:- (i) Whether the Courts below erred in law and misdirected themselves in non-suiting the appellant when the appellant has proved the factum of her title to the suit property by adducing necessary records viz., Ex.A1 and A2 documents of title, merely on the premises of lack of pleading? (ii) Whether the Courts below are correct in refusing to grant the relief of permanent injunction in favour of the appellant who is proved to have been the true owner of the suit property especially when the respondent has failed to prove her case of permissive occupation in a manner known to law? (iii) Is not the preponderance of probabilities of the case would prove that the respondent is only a tenant under the appellant herein with respect to the eastern side of the suit property and her tenancy is validly terminated under Ex.A17 notice? 7. While addressing on the substantial questions of law, learned Senior Counsel appearing on behalf of the appellants would submit that when the plaintiff/appellant has proved the factum of her title to the suit property by producing all necessary documents before the trial court as Exs.A1 and A2, unfortunately, both the trial and lower appellate courts committed a serious error in refusing to grant the relief in so far as the appellant, who clearly established her ownership over the suit property especially when the respondent herein failed to prove her case of permissive occupation in the manner known to law. It is further added that when the preponderance of the probabilities of the case would prove that the respondent herein/defendant in O.S. No.664 of 2001 is only a tenant under the plaintiff/appellant with respect to the eastern side of the suit property and her tenancy is validly terminated as evidenced by Ex.A17 Notice issued against the defendant/respondent herein, the courts below ought to have disbelieved the case of the defendant and should have decreed the suit filed by the appellant, dismissing the one filed by the respondent herein. 8. Learned counsel appearing for the respondent, while opposing the contentions of the learned Senior Counsel for the appellants, would submit that in the present appeal, there is no substantial question of law at all subsists for consideration. According to him, even though the plaintiffs/appellants and the defendant/respondent have been living in the suit property since 1981, without the owner of the property by name Vadivel being impleaded as one of the necessary parties, the appellants cannot seek for any relief. According to him, even though the plaintiffs/appellants and the defendant/respondent have been living in the suit property since 1981, without the owner of the property by name Vadivel being impleaded as one of the necessary parties, the appellants cannot seek for any relief. On that basis, when both the courts below have rightly rejected the case of the appellants, declining to grant the relief of permanent injunction exclusively to the favour of the plaintiffs/appellants herein, the concurrent findings based on sound reasoning cannot be interfered with. 9. Even at the outset, it must be pointed out that the aforesaid arguments advanced by the learned senior counsel do not carry any merit whatsoever for the following reasons. The suit property actually belonged to one Mr.Vadivel, an employee of Cheran Transport Corporation, Coimbatore, since he had purchased site No.13 measuring to an extent of 4250 sq. ft. from one Krishnasamy Gounder, who developed house sites in the land at S.F. No.319/2. The said Vadivel, who went to Chennai in or about 1975 subsequently never returned and he is said to have expired in the year 1980 and the property in question was lying vacant for years together. While so, the appellant herein who is a widow and a Burmese refugee and the respondent herein, who is a poor lady struggling even for subsistence after being deserted by her husband, had approached the President and Secretary of Burma Refugees Association and requested them to get a house site for their joint living. By taking into account their pathetic position, the Association allowed them to occupy Site No.13, the suit property. Subsequently, in the year 1981, when they jointly requested the Management of Immaculate Conception Convent/Institution, running School and Maternity Hospital to aid them in constructing a tiled house, they were granted an aid of Rs.15,000/-during 1981 and out of the said funds, the existing tiled house was constructed upon site No.13 jointly by both the plaintiff and the defendant. The trial court exhaustively gone into the factual aspects and the evidence adduced, and rendered a categoric finding that both the plaintiffs cannot seek for the relief either for delivery of possession or partition or for construction since none of the plaintiffs before the trial court was the actual owner but it was one Mr.Vadivel, who purchased the property from one Krishnasamy Gounder. The trial court, that is why, highlighted that none of the parties impleaded either the said Vadivel or his Legal representatives so as to decide the issues relating to partition and handing over of possession based on title. Ultimately, the trial court had no other option but to conclude that the parties are not entitled for any relief either for partition or for further construction or modification of the existing premises occupied by the respective plaintiffs. While recording an emphatic finding that the appellant did not prove her case that she is the true owner of the property in question, only based on the fact that both the plaintiffs have been continuously in possession from 1981 onwards, that the original owner never returned to claim the property and that one of the occupants/plaintiffs is a widow/refugee and the other one is a deserted lady without sufficient means to live, the trial court granted permanent injunction whereby the respective parties are restrained from interfering with the possession and enjoyment of each other. The lower appellate court, after completely re-examining the facts and evidence, failed to find any sound and valid reason calling for interference. This Court too does not find any error or flaw in the reasoning or the ultimate conclusion arrived at by the courts below. Thus, answering the substantial questions of laws against the appellant, the Second Appeals are dismissed as devoid of any merit, however, there will be no order as to costs.