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2012 DIGILAW 4027 (MAD)

N. T. Suyamprakasam v. K. Gangadharan

2012-09-28

R.KARUPPIAH

body2012
JUDGMENT 1. The appellants/defendants have filed this Second Appeal against the judgment and decree dated 30-4-2001 made in A.S.No.17/2000, on the file of the learned Additional District Judge, Nagercoil, reversing the judgment and decree, dated 20.12.1999, made in O.S. No.202/1999, on the file of the learned Principal Subordinate Judge, Nagercoil. For the sake of convenience, the parties referred as in the suit is referred in the Second Appeal. 2. The respondent/plaintiff had filed a suit for preliminary decree for redemption of mortgage and for future mesne profits at the rate of Rs.10800/- per month. 3. Briefly the case of the respondent/plaintiff is that the suit property i.e. shop building, belonged to the plaintiff and the defendants 1 to 3 were lessees under the respondent/plaintiff from 02.08.1989 for the years and the rent was Rs.400/- per month and advance (Marayam) of Rs.30,000/-was also paid by the defendants. It is also stated in the plaint that when the lease was near termination by efflux of time, the plaintiff demanded vacant possession and defendants and their father agreed to vacate the property on or before 06.07.1992 with an undertaking on 14.06.1992, in which, the defendants 2 and 3 signed in the above said document for themselves and also as agent for first defendant since he was not available, but the defendants did not vacate the property inspite of the above said undertaking and in the meantime, the rent was also increased from Rs.400/- and Rs.700/-. It is also averred in the plaint that in the year 1996 the plaintiff issued a notice on 18.03.1996 to vacate the suit property, as per the undertaking but the defendants issued a reply raising untenable contentions. It was also stated in the plaint that, as per settlement arrived at in April 1996, the defendants agreed to vacate the scheduled mentioned property within five months i.e., August 1996 and till the time of settlement, the receipt of rent was kept in abeyance and after settlement, the plaintiff received the rent and issued receipts. 4. It is further stated in the plaint that the defendants did not honour the agreement and the defendants and their father approached and requested the plaintiff to give the property for one more year on mortgage and also requested the plaintiff to execute a mortgage for Rs. 4. It is further stated in the plaint that the defendants did not honour the agreement and the defendants and their father approached and requested the plaintiff to give the property for one more year on mortgage and also requested the plaintiff to execute a mortgage for Rs. 30,000/-, which had been already paid as Marayam towards the lease and the plaintiff agreed the same but demanded Rs.5000/-more for the mortgage and the defendants also agreed to pay Rs. 5000/-, as additional amount, on 02.09.1996. The leasehold right was surrendered and executed usufructuary mortgage (othi) and the defendants are in possession of the property as mortagages but with an ulterior motive, the defendants sent the rent by way of Money Order to the plaintiff’s wife and she refused to receive the same and therefore, the plaintiff issued notice to the defendants and the defendants sent reply notice refuting the mortgage and questioning the validity of the mortgage as sham documents. Since the one year mortgage period ends on 01.09.1997, issued a notice for redemption the mortgage dated 02.09.1997, but the defendants had filed a frivolous RCOP. No. 49/1996 alleging that they are tenants seeking the relief of depositing the rent into the Court. According to the plaintiff, the defendants are in possession of the plaint scheduled building under mortgage and the plaintiff was ready to deposit the mortgage money of Rs.35,000/- into the court and therefore, the plaintiff filed this suit for preliminary decree for redemption of mortgage. 5. The appellants/defendants have filed a written statement in which it is admitted that the lease commenced from 02.08.1989 for three years and Rs.30,000/- was given to the plaintiff as advance and also admitted that the rate of rent was increased from Rs. 400/-to Rs.700/- per month and the above said lease was again renewed on 01.03.1994 for further three years. 6. But the defendants have categorically denied the allegation in the plaint that on 14.06.1992 an undertaking was signed by the defendants 2 and 3 and contended that the above said document was forged one and the plaintiff never mentioned about the document in his registered suit notice dated 19.03.1996 and also falsified the above said undertaking in view of execution of renewed lease agreement dated 01.03.1994. The defendants further denied the averments in the plaint that the defendants had agreed to vacate the suit schedule building during August 1996 by stating that the defendants never entered into an ‘Otti’ transaction with the plaintiff and the defendants never signed in the documents or paid Rs. 35,000/- as ‘Otti’ amount to the plaintiff and it is falsely stated that the lease amount of Rs. 35,000/- is adjusted towards the ‘Otti’ transaction and the above said document was fraudulently created by the plaintiff and it was sham document and hence, not binding the defendants. The defendants have further stated in their written statement that the defendants are in possession in the plaint schedule property as lessees and never surrendered the leasehold right to the plaintiff on 02.09.1996 and the defendants are not enjoying the property as mortgages and hence, the suit is not maintainable in the civil Court and the plaintiff has to be approached the Rent Controller for eviction. Further, it is averred in the written statement that the plaintiff is not entitled to claim the possession of plaint schedule property from the defendants, who are lessees of the plaint schedule property and the plaintiff is also not entitled to deposit Rs. 35,000/- and therefore, prayed for dismissal of the suit with compensatory costs. 7. The learned trial Judge has framed as many as eight issues and on the side of the plaintiff has examined three witnesses as P.Ws.1 to 3 and marked eight documents as Exs. A1 to A8. On the side of the defendants have examined one witness as D.W.1 and marked eight documents as Exs. B1 to B8. 8. 7. The learned trial Judge has framed as many as eight issues and on the side of the plaintiff has examined three witnesses as P.Ws.1 to 3 and marked eight documents as Exs. A1 to A8. On the side of the defendants have examined one witness as D.W.1 and marked eight documents as Exs. B1 to B8. 8. The learned trial Judge has discussed in detail about the oral and documentary evidence on either side and finally held that the alleged lease release agreement Ex.A8, dated 14.06.1992, relied on by the plaintiff is not proved as true and valid document and it is a forged document and the alleged Ex.A1, mortgage deed, dated 02.09.1996 is also created document and the plaintiff has not proved it as genuine document and also relied on several decisions of the Supreme Court and finally held that the defendants, who are lessees are not surrendered the possession to the plaintiff as alleged in the plaint and therefore, the plaintiff is not entitled to the possession as prayed for in the plaint and therefore, the plaintiff is not entitled to the possession as prayed for in the plaint and dismissed the suit filed by the respondent/plaintiff. 9. The learned appellate court Judge has not at all discussed about the alleged document Ex.A8, the lease release agreement but discussed only about the alleged Ex.A1 mortgage deed, dated 02.09.1996 and it is stated that the plaintiff has proved the document by examining the witnesses and also stated that D.W.1 has deposed that he obtained the copy of the mortgage deed but he does not know whether the Advocate has filed application and then obtained copy and the above said fact only known to his advocate and hence, the first appellate court has held that the above said Ex.A1 mortgage deed is true document and set aside the decree and judgment passed by the trial Court and granted the relief as prayed for by the plaintiff. Aggrieved over the above said finding of the first appellate court, the defendants have preferred this second appeal. 10. This court admitted the second appeal and framed the following substantial Questions of Law for determination:- “1. Whether the finding of the lower appellate court that Ex.A1 was duly executed is opposed to the oral evidence on record? 2. Aggrieved over the above said finding of the first appellate court, the defendants have preferred this second appeal. 10. This court admitted the second appeal and framed the following substantial Questions of Law for determination:- “1. Whether the finding of the lower appellate court that Ex.A1 was duly executed is opposed to the oral evidence on record? 2. Assuming Ex.A is true and validly executed, does it automatically prove the end to the tenancy between the parties to the document?” 11. During pendency of the second appeal, on the side of the plaintiff has filed M.P. (M.D) No.2 of 2011 to receive a document i.e., copy of order passed in RCOP No.49 of1996 on the file of Additional District Munsif, Nagercoil, as Additional document under Order 41, Rule 27 of CPC. 12. Admittedly, the above said order was passed only on the basis of decree and judgment passed by the first appellate court relating to the suit in A.S. No. 17 if 2002 and therefore, from both sides argument it is clear that the petitioner /plaintiff has not proved the conditions under Order 41, Rule 27 of CPC and hence, the above said document cannot be received as prayed for by the plaintiff in the Second Appeal and therefore, the petition i.e., M.P. (MD) No. 2 of 2011, is liable to be dismissed. 13. With regard to main appeal is concerned, both sides and admitted that the suit property i.e., Door No. 95 A1 Shop building belongs to the plaintiff and from 02.08.1989 onwards the defendants are in possession as lessee in the above said building under Ex. B6 rental agreement for three years and the monthly rent originally at Rs. 400/- and it is further admitted by both sides that the defendants are in possession as tenant in the suit property till 02.09.1996 and the rent was also increased to Rs. 700/- and paid by the defendants. 14. The case of the plaintiff is that even before expiry of three years lease period, the defendants and their father agreed to vacate the suit property on or before 06.07.1992 and to that effect the defendants 2 and 3 executed an undertaking in the style of lease release agreement on 14.06.1992 and in which it is agreed to vacate the property on 06.07.1992 but the defendants did not vacate the property and then the rent was increased from Rs. 400/- to Rs. 700/- and they are in possession upto 02.09.1996 as lessees and on 02.06.1996, the defendants have surrendered the leasehold right and on execution of Ex. A1 mortgage deed dated 02.09.1996, the defendants are in possession of the property as usufructuary mortgages and therefore, after the expiry of one year the suit has been filed for redemption of mortgage of the above said Ex. A1, mortgage deed. 15. On the side of the appellants/defendants have categorically denied the above said alleged document Ex.A8 lease release agreement dated 14.06.1992 and also denied the alleged Ex. A1 mortgage deed, dated 02.09.1996 and the defendants have specifically pleaded that all the three defendants are in possession as lessees in the suit property and therefore, the plaintiff is not entitled to any relief as prayed for in the plaint. 16. On the side of the plaintiff has filed this suit on the basis of Ex.A8, agreement of lease release deed and Ex.A1 mortgage deed. Both the documents are specifically denied by the defendants. Therefore, the onus is on the plaintiff to prove the above said documents are true and valid documents. With regard to Ex.A8, lease release agreement is concerned, it is not signed by all the three defendants, who are admittedly lessees in the suit property and only two defendants viz., Radakrishanan and Murugesan alleged to have signed in the document. Except the plaintiff’s witness, no other witness has been examined to prove the above said documents. Further, in the above said documents, it is specifically stated, as if the defendants have received the advance amount of Rs. 30,000/-and under took to vacate the premises on or before 05.07.1992. 17. In the instant case, the plaintiff has not stated the above said advance amount of Rs. 30,000/- alleged to be paid by him to the defendants as stated in the above said documents, and also it is contrary to the averments made in Ex.A8. The plaintiff has stated in oral evidence that she has not received the above said Rs. 30,000/- as stated in Ex. A8 and it is falsely stated in the above said document and the above said mistake was known to the plaintiff even at the time of execution of the documents. The plaintiff has stated in oral evidence that she has not received the above said Rs. 30,000/- as stated in Ex. A8 and it is falsely stated in the above said document and the above said mistake was known to the plaintiff even at the time of execution of the documents. Further, the above said mistake was not stated in the subsequent notice issued by the plaintiff and only at the time of cross-examination itself, she has stated she has stated that by mistake it is stated as if Rs.30,000/-received by the plaintiff in Ex. A8 documents. If Ex. A8 document is true, the averments made in the subsequent document relied on by the plaintiff i.e., Ex.A1, are all false. 18. The learned trial Judge has discussed in details about Ex.A8 document and finally held that the above said document is forged document and not true document but the learned first appellate court Judge has not at all discussed about Ex. A1 document relied on by the plaintiff and only discussed about the subsequent document viz., Ex.A1, usufructuary Mortgage deed and therefore, Ex.A1 document was created by the plaintiff, as rightly contended by the learned counsel for the appellant. 19. The learned counsel for the appellant would contend that Ex.A1 mortgage deed also created by the plaintiff for the purpose of filing this suit. The date of alleged mortgage deed Ex.A-1, is 02-09-1996, even prior to the above said documents, there is an enmity between the parties and that is why the plaintiff has sent legal notice to the defendants on 19.03.1996. In the above circumstances, the plaintiff has filed Ex.A1, Registration copy of the alleged mortgage deed dated 02.09.1996, as if the defendants have executed the mortgage deed. The above said document was specifically denied by the defendants. In the above circumstances, the plaintiff filed the suit on the basis of the above said document, to prove the above said contention and the plaintiff has not summoned the relevant Registrar from the Register Office to prove that the document is true. The learned counsel for the plaintiff would contend that the plaintiff has examined P.Ws.2 and 3 attesting witness and writer of the document and therefore, the plaintiff has proved the above said mortgage deed. P.W.3 is close relative i.e., brother- in-law of the plaintiff and P.W. 2 is document writer. The learned counsel for the plaintiff would contend that the plaintiff has examined P.Ws.2 and 3 attesting witness and writer of the document and therefore, the plaintiff has proved the above said mortgage deed. P.W.3 is close relative i.e., brother- in-law of the plaintiff and P.W. 2 is document writer. The learned trial court Judge has discussed in detail about the testimony of P.Ws. 2 and 3 finally held that both the witnesses are falsely deposed, since P.W.3 is close relative and P.W.2 unable to identify the photo of Second Plaintiff Radhakrishnan, who alleged to have present at the time of registration of mortgage deed. 20. According to the plaintiff, at the time of execution of Ex.A3 mortgage deed, the defendants have paid only Rs.5000/- and Rs. 30,000/-adjusted from the advance given at the time of rental agreement in the year 02.08.1989. But a perusal of Ex.A1 document reveals that all the three defendants have paid a sum of Rs. 35,000/-at the time of execution of Ex. A1 document. Further, in the above said document it is not stated, the defendants have surrendered the possession and then executed mortgage deed in favour of the plaintiff. In Ex.A1 document it is stated, as if the plaintiff has been in possession by paying kist receipts and only possession was given on 02.09.1996 under Ex.A1 mortgage deed. Therefore, the plaintiff has stated in the plaint and evidence completely contradictory with the averments made in Ex. A1 document. 21. Admittedly, all the three defendants signatures not found Ex.A1, since the above said alleged Ex.A1 document is only copy of mortgage. The plaintiff himself admitted the above said fact at the time of evidence also. As rightly discussed by the learned trial court Judge, if the above said document is true document, the defendants have spent the expenses of registration and affix their signatures to receive the above said document. The plaintiff has not stated the above said fact at time of evidence and therefore, the plaintiff has failed to prove the above said document is true and valid document, as rightly held by the learned trial court Judge. 22. The plaintiff has not stated the above said fact at time of evidence and therefore, the plaintiff has failed to prove the above said document is true and valid document, as rightly held by the learned trial court Judge. 22. The learned first appellate Court Judge has not at all discussed the above said Ex.A8 document relied on by the plaintiff and only considered the subsequent document viz., Ex.A1 and therefore, the reasoning for reversing the well considered judgment of the trial court has not at all valid in law, as rightly contended by the learned counsel for the defendants. 23. The learned counsel for the appellant would contended that even Ex.A1 the alleged mortgage deed is taken as true for the argument sake, admittedly, the defendants are lessees under the plaintiff even prior to the above said mortgage and no evidence to prove that the defendants have surrendered the possession to the plaintiff are entitled to continue in possession as lessee and to that effect several decisions are cited even before the trial court, first appellate court and before this court also. 24. The learned counsel appearing for the appellants/ defendants, in support of his contention, has relied on the following decisions:- (i) The decision of Honorable Supreme Court in Gambangi Applaswamy Naidu and Others Vs. Behara Venkataramanayya Patro and Others reported in ( 1984 (4) SCC 382 = (1984) 97 L.W. 186 S.N.). Wherein in paragraph No.9, it has been held as follows :- “9. In the result, we are of the view that the only effect of the execution of usufructuary mortgage deeds in this case was that the lessee’s rights were kept in abeyance and they revived upon the redemption of mortgage………” (ii) The decision of Division Bench of this Court in Elumalai Padayachi Vs. District Revenue Officer, Cuddalore reported in ( 1988 (1) MLJ 140 = 1988 -1-L.W.370) where in paragraph, No.3 it has been held as follows:- “3. There is no reference in this documents as to the surrender of possession as a tenant on the cessation of the tenancy of relationship between the landlord and the tenant. District Revenue Officer, Cuddalore reported in ( 1988 (1) MLJ 140 = 1988 -1-L.W.370) where in paragraph, No.3 it has been held as follows:- “3. There is no reference in this documents as to the surrender of possession as a tenant on the cessation of the tenancy of relationship between the landlord and the tenant. Though the appellant was stated in the document as to enjoy the income from the property as an usufructuary mortgagee paying the Government kists, there is no reference to the earlier relationship of landlord and tenant ceasing and as and from the date of varthamanam letter, the appellant held the property as an usufuctuary mortgagee. There is nothing in document in our opinion, which imply surrender of the lessee’s right. There is also no terms fixed for redemption of the mortgaged property which means that it was open to the mortgagee to redeem the property at any time. The document considered by the Supreme Court in the decision in Appalasami v. Venkataramanayya (1984) 4 SCC 382 : A.I.R. 1984 S.C. 1728 also was some what similar though the document was not in the form of varthamanam letter, but as a regular mortgage deed. The deed did not however contain any term for redemption.” (iii) The decision of Honorable Supreme Court in Nemi Chand Vs. Onkar Lal reported in (1991) (3) SCC 464 = 1992 -1-L.W. 358), where in para 6, it has been held as follows:- “6. The decree for redemption only redeemed the mortgage and did not determine the lease. That is relationship which still subsists and is determinable according to law. See the principle stated by this Court in Nand lal v. Sukh Dev, Shah Mathuradas Maganlal & Co., v. Nagappa Shankarappa Malage and Sambangi Appalaswamy Naidu v. behara Venkataramanaya Patro.” (iv) The decision of Honorable Supreme Court in Gopalan Krishnakutty vs. Kunjamma Pillai Sarojini Amma and others reported in (1996) (3) SCC 424), wherein in paragraph No.6, it has been held as follows: “6. The High Court, in the present case, proceeded on the erroneous assumption in law that surrender of the lease by the lessee (defendant) must be implied from the fact of execution of the usufructuary mortgage in his favour by the lessor (plaintiff). As indicated, this is an erroneous assumption in law. The High Court, in the present case, proceeded on the erroneous assumption in law that surrender of the lease by the lessee (defendant) must be implied from the fact of execution of the usufructuary mortgage in his favour by the lessor (plaintiff). As indicated, this is an erroneous assumption in law. This question has to be decided on the contents of the deed since there is no other evidence of surrender of the lease by the defendant on execution of the mortgage…….” (v) The decision of Honorable Supreme Court in Nirmal Chandra Vs. Vimal and Chand reported in ( 2001 (5) SCC 51 = 2001 -3-L.W. 472), wherein in paragraph 8, it has been held as follows:- “8. From a perusal of the decisions of this court as indicated above, it clearly emerges that there is no automatic merger of two rights where mortgage is executed in favour of a tenant and on redemption of mortgage, the tenancy rights kept in abeyance would revive and entitle the tenant to continue in possession even after the redemption of the mortgage. On execution of mortgage, tenancy rights would terminate only if it is clear expressly or impliedly by conduct or other related circumstances that the parties had intended so which would be a question of fact. Thus as a normal rule except in intention being to the contrary, mortgage and lease operate independent of each other and on mortgage coming to an end by redemption, tenancy would revive.” 25. Per contra, the learned counsel for the respondent, in support of his contentions, has relied on the following decisions: (i) The decision of Honorable Supreme Court in Shah Mathuradas Maganlal Co. Vs. Nagappa Shankarappa Malage and Ors. Reported in ( AIR 1976 SC 1565 ), wherein in paragraph 19 it has been held as under:- “19. In the prevent case the terms of the deed show that the mortgage undertook to deliver possession of the property to the mortgagor on the expiry of a period of 10 years. The mortgage Deed shows that the tenancy was surrendered on 7 November, 1953 and thereafter the possession was only that of mortgagor. There would be no question of the tenancy being kept in abeyance of the tenancy reviving on the expiration of the period of mortgage.” (ii) The decision of Honorable Supreme Court in Tara Chand Vs. The mortgage Deed shows that the tenancy was surrendered on 7 November, 1953 and thereafter the possession was only that of mortgagor. There would be no question of the tenancy being kept in abeyance of the tenancy reviving on the expiration of the period of mortgage.” (ii) The decision of Honorable Supreme Court in Tara Chand Vs. Sagarbai @ Chaiyalibai reported in (1998 (3) L.W. 322), wherein in paragraph 7, it has been held as under:- “7. ……. It is clear that there was nothing in the document to suggest the continuance of the relationship of landlord and tenant. In fact, the recitals clearly suggest implied cessation of relationship of landlord and tenant, and the positive commencement of the relationship of mortgagor and mortgage…….” (iii) In the decision of this Court in Arokiaswamy Odayar Vs. Ry. Nagoji Ramachandra Ghatgal Rao Saheb (died) and others, reported in (2001 (3) MLJ 183), wherein in paragraph 16, it has been held as under:- “16. In the present case, in Ex. A-3 document, the mortgage deed it has been agreed to delivery possession on payment of mortgage amount. If the said recital is there in the said document which was dealt with by the Apex Court, then the view would be different. So, on the basis of the recitals, we have to cull out the intention of the parties. The said intention is very clear that there was implied cessation of relationship of landlord and tenant.” (iv) In the decision of Honorable Supreme Court in Tara Chand Vs. Sagarbai @ Chaiyalibai reported in (2007 (3) L.W. 1077), wherein in paragraph 33 it has been held as under:- “33. In this case also, there is a clear intention on the part of the mortgage only to retain his interest in that capacity and not as a tenant. The parties altered their position, a new relationship was created. It was acted upon and in that view of the matte, we are of the opinion that the High Court was correct in its view……” (v) In the decision of this court in Josephine & another vs. Therasa Ammal reported in (2011 (5) L.W.336), wherein in paragraph 13 it has been held as under:- “13. It was acted upon and in that view of the matte, we are of the opinion that the High Court was correct in its view……” (v) In the decision of this court in Josephine & another vs. Therasa Ammal reported in (2011 (5) L.W.336), wherein in paragraph 13 it has been held as under:- “13. The effect of the decisions of the Supreme court referred to above, is that the actual agreement between the parties and the recitals in the document have to be taken into account before concluding as to whether the parties had intended relinquishment of the tenancy right……..” 26. A careful reading of all the decisions relied on by both sides would reveal that the parties should prove the surrender of the properties in favour of the lessee and also to be considered the recitals in the document, whether express or implied cessation of relationship of landlord and tenant and the positive commencement of the relationship of mortgagor and mortgagee and also reveals that the execution of mortgagee deed kept in abeyance the lessees right and after redemption of mortgagee the right was revived. 27. In the instant case, as already discussed, the above said Ex.A.1 mortgage deed was not proved, as genuine documents by the plaintiff and even if taken as true document, there is no averment made in the document regarding the admitted lease between the parties and no reference about the surrender of the lease on the same day, as alleged in the plaint and the plaintiff has not proved the alleged surrender of leasehold right in the suit property and therefore, the plaintiff miserably failed to prove the alleged two documents viz., Exs. A1 and A8 and therefore, the trial court has correctly discussed in detail and dismissed the suit filed by the plaintiff but the first appellate court has not at all discussed about Ex.A1 document and the findings regarding Ex.A8 also unreasonable, perverse and not supporting any evidence and therefore, the decree and judgment of the first appellate court is erroneous, illegal and perverse, as rightly contended by the learned counsel for the appellant. Therefore, the above said decree and judgment passed by the first appellate court is liable t be set aside and the decree and judgment passed by the trial court is to be confirmed. In view of the forgoing discussions, the substantial questions of law are answered accordingly. Therefore, the above said decree and judgment passed by the first appellate court is liable t be set aside and the decree and judgment passed by the trial court is to be confirmed. In view of the forgoing discussions, the substantial questions of law are answered accordingly. 28. In the result, the Second Appeal is allowed with costs and the Judgment and decree passed by the learned Additional District Judge, Nagercoil in A.S. No. 17 of 2000, dated 30.4.2001 is set aside and the judgment and decree passed by the learned Principal Subordinate Judge, Nagercoil in O.S.No.202/1997, dated 20.12.1999 is confirmed. Consequently, connected M.P. (MD) No.2/2011 is dismissed and M.P. No. 1 of 2011 and M.P. Nos.1 and 2 of 2012 are closed.