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Madras High Court · body

2015 DIGILAW 1817 (MAD)

C. Rajendran v. S. Nirmala

2015-04-07

P.R.SHIVAKUMAR

body2015
Judgment :- 1. The first defendant in the Original Suit is the appellant in the Second Appeal. The fight between the sister and brother over the property bequeathed by their mother on them has made them climb the steps of the trial Court, lower Appellate Court and now this Court being the Second Appellate Court. 2. The undisputed and admitted facts leading to the initiation of judicial proceedings culminating in the Second Appeal can be stated thus:- The plaint schedule property is the western half of the entire property which was made the subject matter of the bequest under the will of Saroja dated 02.05.1991 produced as Ex.B1. It is a registered will and its registration copy has been produced as Ex.A3. Saroja got it by way of a settlement from the original owner, namely her father Thamodharan Pillai under Ex.A2 settlement deed. The sale deed under which the Thamodharan Pillai purchased the property has been produced as Ex.A1. 3. It is also not in dispute that the plaintiff and the first defendant are the legatees under the will dated 02.05.1991. Though the testator Saroja did have one more daughter by name C.Latha Rani, she was not given anything under the will, since the testator was content with the customary seers were given to her at the time of marriage and further seers given by her father subsequent to marriage. The father of the respondent herein-plaintiff and the appellant herein-the first defendant (Chinnaiyan) was running a lathe workshop at a place situated at about 300 meters away from the disputed property. As admittedly the said workshop had been put up in such a way encroaching upon the road margin, he faced threat of eviction by the authorities concerned. Meanwhile, the father (Chinnaiyan) died and the workshop was taken over by his son namely, the first defendant who is the appellant in the second appeal. At that point of time, after his taking over the said business, he occupied a portion in the ground floor of the building coming within the western half of the entire property bequeathed under Ex.B1-will and located that lathe workshop therein. Admittedly, the area occupied by the lathe workshop in the western portion of the building is 800 sq.ft. 4. At that point of time, after his taking over the said business, he occupied a portion in the ground floor of the building coming within the western half of the entire property bequeathed under Ex.B1-will and located that lathe workshop therein. Admittedly, the area occupied by the lathe workshop in the western portion of the building is 800 sq.ft. 4. Claiming that the appellant herein (the first defendant) wanted the respondent herein (plaintiff) to permit him to occupy that portion and while seeking such permission, he made an offer to pay rent for that portion. But according to the respondent/plaintiff taking into account the cordial relationship alone, the respondent herein-plaintiff gave him permission on condition that he should vacate and hand over possession as and when required by the respondent herein-plaintiff and the subsequent circumstances forced her to revoke the permission and seek delivery of possession. Thus the respondent herein-plaintiff filed the suit in O.S.2019 of 2005 on the file of the II Additional District Munsif, Tiruchirappalli. The further averment made in the plaint is that five tenants who were arrayed as defendants 2 to 6 in the suit were occupying different portions bequeathed to her under the above said will; that the rent from them was collected by the appellant herein-the first defendant, on her behalf; that due to an understanding that the appellant herein-the first defendant could appropriate the rent towards the expenses incurred by their father for the marriage of the respondent herein-plaintiff. the appellant herein-the first defendant was collecting rents and appropriating the same towards the said purpose and that after collection of rent thus collected equaled the expenses incurred for her marriage, the appellant herein-the first defendant started sending the rent collected from the said tenants after deducting expenses towards maintenance and payment of public outgoings. 5. The suit was filed for the relief of recovery of possession of the entire property bequeathed on the respondent herein-plaintiff under Ex.B1-will and for recovery of damages for use and occupation on the premise that after revocation of the permission, the appellant herein-the first defendant did not hand over possession and he failed to collect and pay the rent from other tenants. 6. 6. The suit was resisted by the appellant herein-the first defendant, initially denying the very will propounded by the respondent herein-plaintiff and contending that the lathe business was a family business; that pursuant to oral family arrangement, the appellant herein-the first defendant was running the said family business namely, lathe workshop in a portion in the ground floor of the suit premises and that therefore, the claim of the respondent herein-plaintiff on the basis of permissive possession should be rejected as unsustainable. The other contention raised by the appellant herein-the first defendant in the trial Court was that though the will recited that the entire property bequeathed under the said will was demarcated into the western half and eastern half allotting the western half to the respondent-plaintiff and eastern half to the appellant herein-the first defendant since the land is uneven in shape, the dividing line could not be identified and actual division by metes and bounds did not take place to enable the respondent herein-plaintiff to claim exclusive right to a portion identified by her as the portion that fell to her share as per the terms of the will. In short, the contention of the appellant-the first defendant is that the will had simply provided the mode of division, but the actual division by metes and bounds had not taken place; that hence, the occupation of a portion in the entire property, which was the subject matter of the will, by one of the legatees could not be construed as a permissive occupation of the portion of the other legatee and that the remedy open to the other legatee is to file a suit for partition. 7. The third contention raised by the appellant herein-the first defendant is that the respondent-plaintiff agreed to release her right in the suit property in favour of the appellant herein-the first defendant for a consideration of Rs.30,000/- and that even after receiving the said amount the respondent-plaintiff turned around and made a claim which is in derogation of the said undertaking. 8. In the trial, in which the respondent-plaintiff has figured as P.W.1 and one Murugesan who was examined as P.W.2 and 10 documents were marked as Exs.A-1 to A-10 on the side of the plaintiff. On the side of the appellant herein-the first defendant, he alone figured as sole witness (D.W.1) and produced 3 documents marked as Exs.B-1 to B-3. 9. In the trial, in which the respondent-plaintiff has figured as P.W.1 and one Murugesan who was examined as P.W.2 and 10 documents were marked as Exs.A-1 to A-10 on the side of the plaintiff. On the side of the appellant herein-the first defendant, he alone figured as sole witness (D.W.1) and produced 3 documents marked as Exs.B-1 to B-3. 9. At the conclusion of trial, on an appreciation of evidence, the learned trial Judge, upheld the claim made by the respondent herein-plaintiff as against the appellant herein-the first defendant alone and granted a decree for vacating and handing over 800 sq. feet of the ground floor portion occupied by the appellant herein-the first defendant for his lathe workshop and to pay damages for the occupation at the rate of Rs.1,000/- per month. So far as the other five defendants are concerned, since they were admittedly tenants under the respondent herein-plaintiff, the suit as against them was dismissed observing that she could take steps for evicting them following due process of law contemplated in the Rent Control legislations. 10. As against the said disallowed portion namely, the dismissal of the suit as against the defendants 2 to 6, the respondent herein-plaintiff has not chosen to file any appeal or cross objection. The appellant herein-the first defendant alone preferred an appeal before the lower Appellate Court namely, Principal Subordinate Court, Thiruchirappalli in A.S.No.176 of 2008. 11. The learned lower Appellate Judge upon hearing the appeal and on a re-appreciation of evidence, concurred with the findings of the trial Court and dismissed the appeal, thereby confirming the decree granted against the appellant herein-the first defendant. The said decree of the lower Appellate Court dated 11.11.2010 made in A.S.No.176 of 2008 is the subject matter of challenge in the present Second Appeal. 12. The Second Appeal was admitted on 19.09.2011 identifying the following to be the substantial questions of law that have arisen in the Second Appeal:- “(a) Are the Courts below correct and justified in granting a decree for possession in granting a decree for possession without directing the plaintiff to resort to the provisions of Tamil Nadu Building (Lease and Rent Control) Act, 1960 admittedly, when the defendant/respondent is in possession of the suit property as tenant? (b) Are the Courts below correct and justified in granting a decree for possession when it has not been specifically pleaded about the measurements, area or specified boundaries or identifiable property regarding each defendant? Is the suit for possession maintainable?” 13. The arguments advanced by Mr. H.Lakshmishankar, learned counsel appearing for the appellant herein-the first defendant and by Mr. G.S. Asok Adhithyan, learned counsel appellant for the respondent herein-plaintiff are heard. The judgments of the Courts below and the materials available on record sent for from the Courts below are also perused and considered. 14. The facts in controversy have been narrated in the preliminary portion of this judgment and hence it shall be unnecessary to repeat it. Though the claim of the respondent herein-plaintiff based on Ex.B1-will has been disputed, in the written statement of the first respondent during the course of trial, D.W.1 has clearly admitted the genuineness and validity of Ex.B1-will and in fact, the original will and the parent documents to the said will have been produced by the appellant herein-the first defendant to be marked as Exs.B-1 to B-3. Therefore, it can be, without hesitation, stated that the appellant herein-the first defendant has given a go-bye to his initial stand made in the written statement regarding the genuineness and validity of the will. 15. The respondent-plaintiff has also taken a cautious approach by examining one of the testators of the will as P.W.2 in order to comply with the conditions stipulated in Section 68 of the Indian Evidence Act, 1872. The genuineness and validity of the will stands established by the evidence of P.Ws.1 and 2 and also by the admission of D.W.1. 16. According to the disposition made under Ex.B1-will, the entire property which was the subject matter of the disposition was shown divided into two parts namely, western half and eastern half. The western half was bequeathed in favour of the respondent herein-plaintiff and the eastern half was bequeathed in favour of the appellant herein-the first defendant. 17. The contention of the appellant herein-the first defendant that since the boundary is yet to be demarcated, the property should be construed to be a joint property and the only remedy available to the respondent herein-plaintiff shall be to file a suit for partition cannot be countenanced in the light of the admissions made by the appellant herein-the first defendant while deposing as D.W.1. Such admissions point out the fact that the legatees under Ex.B1-will were very well conscious of the dividing line of the eastern half and western half and there was no dispute regarding the demarcating line. D.W.1, in his evidence, clearly admitted that under Ex.B.1-will itself the property had been divided into two parts and named as eastern half and western half and that eastern half was bequeathed to the appellant herein-the first defendant and western half was bequeathed to the respondent herein-plaintiff. There is the further admission by D.W.1 that he is residing in the portion that was bequeathed to him under Ex.B.1-will and that in the ground floor portion in which he had set up a lathe comes within the western half bequeathed on the respondent herein-plaintiff. The further admission is to the effect that he collected rent from the tenants in respect of other portions bequeathed on the respondent herein-plaintiff and he had sent the same to the respondent herein-plaintiff after deducting the property tax, water tax and other public outgoings. 18. All these admissions make it clear that the property had already been divided and the parties were very much aware of this fact and that if any attempt is made by the appellant herein-the first defendant to contend that there is no division by meats and bounds, it would be only a ruse to deny the relief sought for by the respondent herein-plaintiff. 19. The next contention raised by the appellant herein-the first defendant is that since the respondent herein-plaintiff herself admitted the appellant herein-the first defendant to be a tenant filing a suit for recovery of possession without approaching the appropriate authority under the Tamil Nadu Building (Lease and Rent Control) Act, 1960 seeking eviction shall not be maintainable also has got to be rejected as untenable for the following reasons:- (a) The plea made by the respondent herein-plaintiff in her plaint is that facing threat of eviction from the encroached area, the appellant herein-the first defendant sought her permission to shift his lathe workshop to the suit property and that while making such a request he also informed that he was ready to pay rent. However, a reading of the plaint as a whole will make it clear that the respondent herein-plaintiff did not accept the said offer and on the other hand, she agreed to permit the appellant herein-the first defendant to use a portion in the ground floor of her building on condition that he should vacate and hand over possession whenever she would require the same. It is not even the case of the appellant herein-the first defendant that the rent was fixed at a particular rate and he was paying the same to the respondent herein-plaintiff. In fact, as per the plaint averments, the offer made by him was Rs.1500/- per month. But the claim of damages made by her for use and occupation is Rs.1000/- per month. However, it is an admission made by the appellant herein-the first defendant that the rent for the portion shall be Rs.2000/- to Rs.3000/- per month. The same will make it clear that there was no consensus and the contract of tenancy did not get clinched. (b) The appellant herein-the first defendant has also failed to take an unambiguous stand that he is a tenant under the respondent herein-plaintiff and hence, the Tamil Nadu Building (Lease and Rent Control) Act, 1960 is not attracted. On the other hand, he has taken conflicting and contradictory stands. First he took a plea of co-ownership. The second stand taken by him is the bar of civil suit on the ground that there is a landlord and tenant relationship. The third one is the alleged release of her right (ie.) promise to release her right for a consideration of Rs.30,000/- and on payment of the said amount, his possession would even tantamount to possession in part performance of the commitment. Such conflicting and contradictory stands had benefited the appellant herein-the first defendant not in subsistence but only in getting the evil day postponed by taking the case from the trial Court to the Appellate Court and from the Appellate Court to the Second Appellate Court. The first substantial question of law is answered accordingly. 20. Such conflicting and contradictory stands had benefited the appellant herein-the first defendant not in subsistence but only in getting the evil day postponed by taking the case from the trial Court to the Appellate Court and from the Appellate Court to the Second Appellate Court. The first substantial question of law is answered accordingly. 20. The second substantial question of law has been formulated on the basis of the contention that the area regarding which possession has been sought for from the appellant herein-the first defendant has not been clearly described with measurements and that the Courts below committed an error in granting the decree in favour of the respondent-plaintiff as against the appellant herein-the first defendant brushing aside the above said defect in the description of property. Of course, it is true that the description of property does not give the measurements of the area occupied by the lathe of the appellant herein-the first defendant. But there is no difference of opinion and the parties are not at variance regarding the fact that the entire area occupied by the lathe is in the property of the respondent herein-plaintiff described as the suit property. It is also an admitted fact that the lathe occupies an extent of 800 sq. ft., in the ground floor portion. As there is no dispute regarding identity of the portion regarding which the decree has been granted, the contention sought to be raised in this Second Appeal regarding the defect in the description of property has got no substance and the same has got to be rejected. Accordingly, the second substantial question of law is answered. 21. In view of the above discussions and the answers given to the substantial questions of law, this Court comes to the conclusion that the trial Court and the lower Appellate Court have not committed any error in law and none of the findings could be even termed perverse warranting an interference by this Court in exercise of its power of Second Appeal. There is no merit in the Second Appeal and the same deserves dismissal. 22. In the result, the Second Appeal is dismissed. However, considering the relationship of the parties, this Court refrains from passing any order regarding the costs. There is no merit in the Second Appeal and the same deserves dismissal. 22. In the result, the Second Appeal is dismissed. However, considering the relationship of the parties, this Court refrains from passing any order regarding the costs. The amount already deposited by the appellant herein-the first defendant towards damages as per the direction of this Court shall be withdrawn and appropriated towards the amount deemed as damages for use and occupation and the appellant herein-the first defendant shall be liable to pay outstanding, if any. 23. After the judgment was dictated, learned counsel appearing for the appellant made a request to grant six months time for shifting the lathe workshop and handing over the possession. Learned counsel appearing for the respondent does not have any serious objection for the same, provided the appellant herein pays the arrears of rent and continues to pay damages and also files an undertaking in this Court to the said effect. It is made clear that the undertaking should be filed within a week from today. Consequently, M.P(MD)No.1 of 2011 is closed.