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2014 DIGILAW 1738 (MAD)

Rathna v. Executive Officer

2014-06-26

P.R.SHIVAKUMAR

body2014
Judgment P.R. Shivakumar, J. 1. Though the respondent was served with notice and the name of the respondent has been printed in the cause list, none appears on behalf of the respondent. The defendant in the Original Suit O.S. No. 150 of 2002 on the file of District Munsif, Cuddalore, who suffered a decree in the trial court, which was confirmed by the lower appellate court, namely II Additional Subordinate Judge, Cuddalore in A.S. No. 60 of 2004, has come forward with the present second appeal. 2. The suit was filed by Sri Padaleeswarar Devasthanam, Thirupapuliyur represented by its Executive Officer, the respondent herein, for recovery of the suit property belonging to the respondent Devasthanam, which, according to the respondent, had been rented out to the appellant herein/defendant under a registered Rental Deed dated 06.09.1991 for a period of three years from 01.07.1990 to 30.06.1993 on a monthly rent of Rs. 150/-. It was also the plea of the respondent herein/plaintiff that after the expiry of the said period found in the Rental Deed, the appellant herein/defendant continued as a tenant holding over the suit property and the Deputy Commissioner, HR&CE Department, Mayiladuthurai fixed the fair rent for the suit property at Rs. 1,000/- per month from 01.09.1997 by his order dated 30.09.1997. The further contention of the respondent herein/plaintiff is that the appellant herein/defendant was irregular in payment of rent and he had left an arrears of rent to the tune of Rs. 26,200/- which prompted the respondent herein/plaintiff to issue a notice terminating the tenancy and asking the appellant herein/defendant to vacate and deliver vacant possession of the suit property to the respondent herein/plaintiff. 3. The appellant herein/defendant, in her written statement, admitted that she became a tenant in respect of the suit property on a monthly rent of Rs. 150/- but disputed the other plaint averments. It was also contended that no notice dated 17.02.2000 as pleaded by the respondent/plaintiff was served on her. Based on the above said pleadings, the appellant/defendant prayed for the dismissal of the suit. 4. The learned trial judge framed two issues and one additional issue which are as follows:- Issues: "(1) Whether the plaintiff is entitled to the relief of delivery of vacant possession as claimed in the plaint? (2) To what relief the plaintiff is entitled?" Additional Issue: "(1) Whether notice under Section 106 of T.P. Act is necessary? 4. The learned trial judge framed two issues and one additional issue which are as follows:- Issues: "(1) Whether the plaintiff is entitled to the relief of delivery of vacant possession as claimed in the plaint? (2) To what relief the plaintiff is entitled?" Additional Issue: "(1) Whether notice under Section 106 of T.P. Act is necessary? If so whether the plaintiff has sent notice under Section 106 of T.P. Act to the defendant?" 5. After hearing, the learned trial judge held that after the period of tenancy as per the Rental Deed was over, the defendant was a tenant holding over and the said lease was sought to be terminated by issuing a notice dated 17.02.2000 calling upon the appellant herein/defendant to hand over vacant possession of the suit property. The learned trial judge held that the said notice satisfied the requirements of Section 106 of the Transfer of Property Act, 1882 and that the fact that the same was sent by registered post to correct address and was returned with postal endorsement "absent, left without instructions" could prove the compliance with the requirement of service of notice under section 106 of the Transfer of Property Act, 1882. Accordingly, the learned trial judge answered the additional issue and the other two issues also in favour of the respondent herein/plaintiff and granted a decree as prayed for. 6. The decree of the trial court dated 14.07.2003 was challenged before the lower appellate court in A.S. No. 60 of 2004. The learned II Additional Subordinate Judge, Cuddalore (lower appellate judge), after hearing, concurred with the findings of the trial court in all respects and dismissed the appeal confirming the decree passed by the trial court. However, while doing so, the learned lower appellate judge chose to make an observation that the appeal was not maintainable and no notice under Section 106 of the Transfer of Property Act, 1882 was needed to be given before the filing of the suit for recovery of possession. As against the said judgment and decree of the lower appellate court dated 29.07.2005, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal. 7. As against the said judgment and decree of the lower appellate court dated 29.07.2005, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal. 7. The appeal came to be admitted identifying the following to be the substantial question of law involved in the second appeal: Substantial Question of Law: "Whether the Courts below are right in granting a decree for possession in the absence of proof of service of notice under Section 106 of the Transfer of Property Act? 8. The arguments advanced by Mr. B. Jagannath, learned counsel appearing for Mr. A. Jenasenan, counsel on record for the appellant are heard. The materials available on record are also perused. 9. Learned counsel for the appellant would simply contend that the notice purported to have been sent in compliance with Section 106 of the Transfer of Property Act, 1882 was addressed to a wrong address and hence the same was returned unserved and that the non-service of such notice sent to a wrong address should have led to the dismissal of the suit holding that the suit for recovery of possession without terminating the tenancy was not maintainable. It is the further contention of the learned counsel for the appellant that the learned lower appellate judge committed an error in law in holding that there was no necessity to serve a notice under Section 106 of the Transfer of Property Act, 1882 and that the appeal itself was not maintainable, because of the failure on the part of the appellant (tenant) to take steps for making payment of the fair rent, even though she might have expressed her willingness to pay the fair rent. 10. Of course, it is true that the above said observations made by the learned lower appellate judge are unwarranted and the same came to be made on an erroneous assumption that in case of a tenant preferring an appeal against the decree for possession, could not maintain the appeal without paying the admitted rent. 10. Of course, it is true that the above said observations made by the learned lower appellate judge are unwarranted and the same came to be made on an erroneous assumption that in case of a tenant preferring an appeal against the decree for possession, could not maintain the appeal without paying the admitted rent. Though the learned lower appellate judge took pains to reappraise the evidence to concur with the findings of the trial court that the notice dated 17.02.2000, which was marked as Ex.A2, would comply with the requirements of Section 106 of the Transfer of Property Act, 1882, chose to make an erroneous and unnecessary observation that service of notice under Section 106 of the Transfer of Property Act, 1882 was not necessary. Even though the said observation cannot be sustained, that alone shall not be enough to interfere with the decree of the lower appellate court confirming the decree of the trial court. If the said observations are expunged, then the remaining findings recorded by the lower appellate court shall be enough to sustain the confirmation of the decree passed by the trial court. 11. Of course, the learned counsel for the appellant has taken a plea that the purported notice under Section 106 was sent to a wrong address and the return of the same with postal endorsement would not be enough to prove service of such a notice, this court finds no substance in the above said contention of the learned counsel for the appellant. The door number of the residence of the appellant provided in Ex.A1-Rental Agreement is 13, Mission Lane, Thirupapuliyur, whereas the notice was sent to door No.30, Mission Lane, Lawrence Road, Thirupapuliyur, Cuddalore-2. The Rental Agreement came to be executed in the year 1991. Notice came to be issued in the year 2000. There is no plea and no evidence adduced on the side of the appellant herein/defendant that the address found in Ex.A2 was not her address. If at all the address was wrong, the postal endorsement would have been to the following effect: no such addressee. On the other hand, on several beats, the post-man was informed that the addressee had left without instructions and at last the cover containing the notice came to be returned with the endorsement absent, left without instructions. 12. If at all the address was wrong, the postal endorsement would have been to the following effect: no such addressee. On the other hand, on several beats, the post-man was informed that the addressee had left without instructions and at last the cover containing the notice came to be returned with the endorsement absent, left without instructions. 12. PW1 was not cross examined with any specific suggestion that the address found in Ex.A2-Notice and Ex.A5-Acknowledgment Card was not the address in which the appellant/defendant was residing. In fact, there was no suggestion to the effect that the notice was sent to a wrong address. In addition, the appellant's husband, who figured as the sole witness on her side also did not make any specific assertion that the appellant was not residing in the address to which the notice had been sent. Under the said circumstances, the courts below have arrived at a correct conclusion that the service of notice was enough. 13. The substantial question of law that was formulated at the time of admission was the one formulated by the appellant and incorporated in the grounds of appeal. It was couched in such a way that there was absence of proof of service of notice and hence the decree for possession could not be sustained. The question ought to have been one questioning the sustainability of the finding regarding the service of notice under Section 106 of the Transfer of Property Act, 1882. It should have been framed as "whether the finding of the courts below that the respondent had proved service of notice under Section 106 of the Transfer of Property Act, 1882 is perverse?" 14. The above said discussions will make it clear that the concurrent findings of the courts below regarding the said aspect cannot be termed either defective or infirm, much less perverse so as to enable this court to interfere with the same. For all the reasons stated above, this court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed. In the result, the second appeal is dismissed. However, there shall be no order as to cost, since the respondent has not chosen to appear to contest the appeal.