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2016 DIGILAW 1962 (MAD)

T. S. M. Thummuni (died) v. Doulat Nisha

2016-06-22

R.MALA

body2016
JUDGMENT : R. Mala, J. 1. The plaintiffs/appellants who lost the legal battle in both the Courts, have come forward with the Second Appeal, challenging the Decree and Judgment passed in A.S. No. 18 of 1997, dated 27.07.1999 by the Additional District Court – Chief Judicial Magistrate Court, Ramanathapuram, by confirming the Decree and Judgment made in O.S. No. 338 of 1986, dated 30.09.1996 by the Principal District Munsif Court, Ramanathapuram. 2. Heard the learned counsel for the appellants, the learned Counsel for the respondents and perused the materials available on record. 3. The plaintiffs/appellants have filed a suit in O.S. No. 338 of 1986 for injunction restraining the defendants/respondents 1 to 3 not to remove, demolish or make a new construction and alteration in the suit properties by stating that the suit properties originally owned by their father and their predecessors on title and they have inherited the properties and made a construction. In the suit properties, Door No. 11 stands in the name of the second plaintiff and Door Nos. 11A and 11B stand in the name of the first plaintiff and the assessments stand in their name and they are paying the house tax. 4. The first defendant is the tenant in Door No. 11 and the second defendant is the tenant in Door No. 11A and the third defendant is the tenant in Door No. 11B and they paid monthly rent of Rs. 30/- and have taken the signature of the second plaintiff in the pocket note book. After August 1986, they have not paid their rent. Now the plaintiffs came to know that the defendants 1 to 3 want to remove the superstructure, demolish the same and put up a new one. Hence, the plaintiffs were constrained to file the suit for the above stated relief. 5. Resisting the same, the defendants 1 to 3 filed a written statement and raised the defence by stating that the suit properties are not belonging to the plaintiffs/appellants and the first defendant has no way connected with this suit. The suit is bad for misjoinder of parties. The plaintiffs/appellants have no right over the suit properties and the assessments have not been stood in the name of the plaintiffs. They are not the tenants under the plaintiffs. The suit is bad for misjoinder of parties. The plaintiffs/appellants have no right over the suit properties and the assessments have not been stood in the name of the plaintiffs. They are not the tenants under the plaintiffs. The defendants/respondents 1 to 3 had put up the thatched house in the Government Poromboke land and they are enjoying the properties. Even it is admitted that they are the tenants under the plaintiffs, they are not entitled to restrain the defendants/respondents 1 to 3 from enjoying the suit properties. Hence, he prayed for dismissal of the suit. 6. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and dismissed the suit by stating that the defendants had proved that the properties are Government Poromboke lands and they are in possession and "B" memos have been issued to them. So that, the plaintiffs are not entitled to the relief sought for in the plaint. 7. Against the judgment and decree passed by the trial Court, the plaintiffs/appellants preferred an appeal in A.S. No. 18 of 1997, which was also dismissed by the lower Appellate Court, by confirming the decree and judgment passed by the trial Court, stating that the suit is not maintainable, since the plaintiffs/appellants have not sought for declaration of title of the properties and without the prayer of declaration of title, the suit itself is not maintainable and hence, the first Appellate Court has dismissed the same. Once title has been denied and the plaintiffs/appellants have not proved the prima facie title and possession, they are not entitled to any relief. On that basis, the appeal has been dismissed. Against which, the present Second Appeal has been preferred. 8. At the time of admission of the Second Appeal, the following Substantial Question of Law has been framed: "Whether the respondents who admit their tenancy under the appellants are not estopped from questioning the title of the appellant in the light of Section 116 of the Indian Evidence Act?" 9. The learned Counsel appearing for the appellants/plaintiffs would raise a point that the defendants 1 to 3/respondents 1 to 3 had admitted their tenancy under the plaintiffs and now they estopped by questioning the title of the landlords. The learned Counsel appearing for the appellants/plaintiffs would raise a point that the defendants 1 to 3/respondents 1 to 3 had admitted their tenancy under the plaintiffs and now they estopped by questioning the title of the landlords. The learned Counsel would further submit that even though the plaintiffs/appellants filed a suit for bare injunction, now they came to know that the properties are Government Poromboke lands and they impleaded the fourth respondent Government as party and they are claiming possessory right and the defendants 1 to 3 are the tenants under them. Hence, they are entitled to have the injunction restraining the defendants 1 to 3, not to make any alteration, demolition and new construction. The learned Counsel would also submit that the respondents 1 to 3 have submitted an application before the Tahsildar for claiming patta, in that they were admitting their tenancy under the plaintiffs/appellants herein. Now they estopped from disputing the title to the appellants in the light of Section 116 of the Indian Evidence Act. Hence, he prayed for setting aside the judgment and decree passed by both the Courts below. 10. Resisting the same, the learned Counsel appearing for the defendants/respondents 1 to 3 would submit that the suit properties are Government Poromboke lands and now only they came to know that the properties are Government poromboke and hence, Section 116 of the Indian Evidence Act is not applicable to the facts of the present case. Since the plaintiffs/appellants are the owners of the suit properties, they are not entitled to any relief. Admittedly, the plaintiffs/appellants have not proved their title and they are in possession of the suit properties, that factum was rightly considered by the first Appellate Court and dismissed the first appeal. Hence, he prayed for dismissal of the Second Appeal also. 11. Considering the rival submissions made by both sides and on perusal of typed set of papers, it would show that admittedly, the defendants/respondents 1 to 3 are in possession of the suit properties. The Documents viz., Exs. A.17 to A.19 have shown that the defendants/respondents 1 to 3 are in possession and enjoyment of the suit properties. They are under the impression that the plaintiffs/appellants are the owner of the suit properties, they paid Rs. 30/- p.m. as ground rent. Now only the defendants/respondents 1 to 3 came to know that the properties are belonging to Government poromboke. They are under the impression that the plaintiffs/appellants are the owner of the suit properties, they paid Rs. 30/- p.m. as ground rent. Now only the defendants/respondents 1 to 3 came to know that the properties are belonging to Government poromboke. They had given an application for grant of patta. So, now this Court has to decide as to once the defendants/respondents 1 to 3 accepting the title of the plaintiffs/appellants under a lease agreement, whether they estopped under Section 116 of the Indian Evidence Act, subsequently they came to know that the suit properties are Government poromboke. 12. It is appropriate to extract Section 116 of the Indian Evidence Act which is hereunder: "116 : Estoppel of tenant ; and of licensee of person in possession: No tenant of immovable property or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given." 13. The estoppel does not operate if the denial of the tile of the landlord, subsequent to the commencement of the tenancy. Here it is pertinent to note that as soon as the defendants/respondents 1 to 3 came to know that the properties are Government poromboke lands, they refused to pay the rents and then only the suit has been filed for injunction restraining the defendants/respondents 1 to 3 not to remove, demolish or make a new construction and alteration in the suit properties. It is pertinent to note that the plaintiffs/appellants, in the plaint, have stated that the defendants/respondents 1 to 3 entered as tenants in the year 1980, where as the documents filed by the defendants viz., Voter list Exs. B.75 and B.76 would show that the first defendant is in possession from 1975 onwards and the second defendant is in possession from 1979 onwards. Thus it shows that the plaintiffs have not come to the Court with clean hands. 14. B.75 and B.76 would show that the first defendant is in possession from 1975 onwards and the second defendant is in possession from 1979 onwards. Thus it shows that the plaintiffs have not come to the Court with clean hands. 14. Now at the time of filing the suit, they have stated that the properties are owned by their father and their predecessors on title and they have inherited the property, but admittedly, the properties are in possession of the defendants/respondents 1 to 3 and they are enjoying the properties from 1975 and 1979 onwards. Once the plaintiffs/appellants are denying the title, then they have to file a suit for declaration of title to the properties and injunction. Even though, they filed so many documents viz., 21 documents including the house tax receipts standing in their names, admittedly the possession of the properties is with the defendants/respondents 1 to 3. In their house tax receipts, only door number and assessment number has been mentioned. But merely because the properties have been assessed in the name of the plaintiffs/appellants, they are not entitled to the relief as sought for, because if they are claiming possessory title against the third parties and if they are in possession, they are entitled to file a suit for declaration of their possessory title of the suit properties and injunction. But admittedly, the possession is with the defendants/respondents 1 to 3. They entered into the premises as the tenants and subsequently "B" memos were issued in their favour during the pendency of the suit. But admittedly, the properties are Government Poromboke lands. In such circumstances, I am of the view that as a subsequent event, the plaintiffs/appellants are not the owner of the suit properties and when the defendants/respondents 1 to 3 came to know that the plaintiffs/appellants are not the owner of the suit properties, they are entitled to raise the plea viz., the plaintiffs/appellants are not the owners of the suit properties. Furthermore, the plaintiffs/appellants have sought discretionary relief, but they have not come to Court with clean hands and definite case. But in the plaint itself, the plaintiffs/appellants have stated that the properties are owned by their father and their predecessors on title and they have inherited the property, but at the time of arguments, they have stated that the properties are Government poromboke lands and they are having possessory right. But in the plaint itself, the plaintiffs/appellants have stated that the properties are owned by their father and their predecessors on title and they have inherited the property, but at the time of arguments, they have stated that the properties are Government poromboke lands and they are having possessory right. However, the plaintiffs/appellants will not go beyond the pleadings and no evidence can be looked into without pleadings. 15. In such circumstances, I am of the view that the defendants/respondents 1 to 3, under wrong impression that the plaintiffs/appellants are the owner of the properties, have entered into the rental agreement and paid rents. As soon as they came to know that the properties are not belonging to the plaintiffs/appellants, they had not paid that amount. Then only the plaintiffs/appellants filed the suit for injunction restraining the respondents to make demolition and reconstruction of the building. But it is appropriate to consider the documents Exs. A.17, A.18 and A.19 in which it was stated that the defendants/ respondents 1 to 3 paid rents and subsequently they came to know that the properties are not belonging to them, they sought for patta. But in that it was specifically stated that they denied the tenancy. 16. If it is true that the defendants can raise the inconsistency plea, the plaintiffs/appellants must come forward with the definite case. But admittedly, the defendants/respondents 1 to 3 have proved that the suit properties were situated in Government poromboke lands. They have also given a letter to the Municipal Administrative Officer, Rameshwaram, wherein it was stated that Syed Ismail/first plaintiff was forcing him to vacate the premises and they further submitted that the construction has been made by them on the payment of Rs. 1,000/- and they have paid Rs. 30/- as ground rent. In Ex. A.19 – a copy of the petition addressed to the District Collector, Rameshwaram, it was specifically mentioned that the thatches has been paved two years back and now it was damaged. When they made a request to put a new thatches, but the plaintiffs/appellants refused to do so. Subsequently they came to know that the plaintiffs/appellants are not the owners of the suit properties and the lands are Government poromboke. 17. So, on considering the documents viz., Exs. When they made a request to put a new thatches, but the plaintiffs/appellants refused to do so. Subsequently they came to know that the plaintiffs/appellants are not the owners of the suit properties and the lands are Government poromboke. 17. So, on considering the documents viz., Exs. A.17 to A.19, it would clearly show that the plaintiffs/appellants wrongly informed that they are the owners of the suit properties and a sum of Rs. 30/- has been paid by the defendants/respondents 1 to 3 as monthly rent and they are enjoying the suit properties. When the defendants/respondents 1 to 3 intended to remove and modify the thatches, the present suit has been filed by the plaintiffs/appellants. In such circumstances, I am of the view that the change in subsequent events i.e., the suit properties are Government poromboke lands, the defendants/respondents 1 to 3 are entitled to deny the title of the landlords/plaintiffs, who inducted them into the tenancy and that will not cover the principle of estoppel. 18. In the case on hand, the appellants/plaintiffs would submit that after August 1986, the respondents are not paying the rent and now they are attempting to demolish, remove the thatches and make a construction. Hence, they are constrained to file a suit for the relief sought for in the plaint. It shows that the respondents denied the title and there is no tenancy in existence. Hence, the provision under Section 116 of Indian Evidence Act will not be applicable to the facts and circumstances of the present case. 19. The rule of estoppel so enacted has three main features: (1) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. 20. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. 20. So we say that the application of Section 116 of the Indian Evidence Act has been extended their application in accordance with the facts and circumstances of each and every case, the denial by the tenant on his landlords' title, where that denial rests upon certain facts which happens subsequent to the commencement of the tenancy. In the wrong impression, the defendants/respondents 1 to 3 have paid the ground rent as per Exs. A.17 to A.19. Now they came to know that the properties are in Government poromboke and they denied the tenancy and refused to pay the rent and they sought for patta for the properties. Recognising their possession "B" memos have also been issued. 21. In such circumstances, I am of the view that the plaintiffs/appellants are not in possession of the suit properties, not having the title of the properties, they are not entitled to any relief. Furthermore, the suit is for injunction restraining the defendants/ respondents 1 to 3 to alter or demolish the old superstructure and put up new one, since it is useless for residential purpose. In Exs. A.17 to A.19, it was specifically mentioned that the thatches have been damaged, which is not fit for inhabitation and that have to be removed and replaced. 22. In such circumstances, I am of the view that the first Appellate Court has rightly held that the suit properties are in Government poromboke and it was admitted by the plaintiffs/appellants themselves, so they are neither the owners of the suit properties nor in possession of the suit properties, they are not entitled to any relief in respect of the suit properties. Considering the subsequent events, the defendants/respondents 1 to 3 are entitled to deny the title. The estoppel under Section 116 of the Indian Evidence Act is not applicable to the facts and circumstances of the present case. The Substantial Question of Law is answered accordingly. 23. In view of the answer given to the Substantial Question of Law, the suit properties are belonged to Government as Government poromboke lands and the defendants/ respondents 1 to 3 are in possession and enjoyment of the suit properties. So, the plaintiffs/appellants are not entitled to the relief as sought for in the plaint. 23. In view of the answer given to the Substantial Question of Law, the suit properties are belonged to Government as Government poromboke lands and the defendants/ respondents 1 to 3 are in possession and enjoyment of the suit properties. So, the plaintiffs/appellants are not entitled to the relief as sought for in the plaint. Hence, the judgment and decree passed by the first Appellate Court is hereby confirmed. 24. Accordingly, the Second Appeal is dismissed. No costs. Appeal dismissed.