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2018 DIGILAW 3224 (MAD)

Rahmath Beevi v. Mohideen Abdul Khadar

2018-09-25

S.RAMATHILAGAM

body2018
JUDGMENT S. Ramathilagam, J. These Second Appeals arise out of common judgment an decree dated 13.2.2002 made in A.S.Nos.75 and 80 of 2001 on the file of Principal Sub Court, Tenkasi, confirming the common judgment and decree dated 02.07.2001 made in O.S.Nos.172 and 464 of 1995 on the file of Principal District Munsif Court, Tenkasi. 2. The appellant in both the appeals is the plaintiff, namely Rahmath Beevi (deceased, now represented by her L.Rs./appellants 2 to 7) in O.S.No.464 of 1995 and 2nd defendant in O.S.No.172 of 1995 on the file of the Principal District Munsif Court, Tenkasi, filed for the relief of mandatory injunction against the first defendant to remove the temporary structure made in the fourth schedule property which is the part of the second schedule property and to hand over the vacant possession of the same and also for mesne profits of Rs. 1083/- with accrued interest thereon and also for mandatory injunction against the second defendant to remove the temporary construction made in the third schedule property which is part of the second schedule property and to hand over the vacant possession and also for mesne profit of Rs. 216 with accrued interest thereon. 3. The brief facts of the case of the plaintiff, are as follows: The suit property and the property situated on northern side belongs to one Ameenal Beevi. The said Ameenal Beevi sold the first schedule property to the first defendant and the second schedule property to the plaintiff. The first schedule property is a vacant site. The portion situated on southern side of the second schedule property is the third schedule property. The said third schedule property was given to the second defendant for rent, over which the second defendant has constructed a temporary structure and he was paying rent to Ameenal Beevi. The remaining portion after giving rent to the second defendant, was given to the first defendant by Ameenal Beevi, over which the second defendant has constructed a temporary structure and he was paying rent to Ameenal Beevi. 4. It is also averred by the plaintiff that there is no permanent wall in between the shops of defendants 1 and 2 and in respect of the third and fourth schedule property, the defendants are paying monthly rent to Ameenal Beevi. The first defendant was paying rent for the first schedule property at Rs. 4. It is also averred by the plaintiff that there is no permanent wall in between the shops of defendants 1 and 2 and in respect of the third and fourth schedule property, the defendants are paying monthly rent to Ameenal Beevi. The first defendant was paying rent for the first schedule property at Rs. 50/- and the second defendant for the third schedule property, was paying rent at Rs. 50/- to Ameenal Beevi. But after purchase of the second schedule property from Ameenal Beevi by the plaintiff, the defendants are not paying the rent for the vacant site. 5. It is the case of the plaintiff that even the persons who are enjoying very meager extent of the land, are paying rent at Rs. 250/- whereas the first defendant is paying very less amount towards rent. If the fourth schedule property is given for rent to third persons, definitely he can get Rs. 250/- as rent. The first defendant has to pay Rs. 250/- per month from the date of purchase of the second schedule property. The defendants are also not vacating the second schedule property though demanded by the plaintiff. While so, the first defendant has filed a suit in O.S.No.172 of 1995, it is also grievance of the plaintiff that the first defendant, apart from the fourth schedule property, has occupied a portion adjourning the highways and he is liable to vacate the same, otherwise, the plaintiff will be put to difficulty to reach his property from the highways. 6. Aggrieved by the action of the defendants, the plaintiff issued legal notice to the defendants. For the said legal notice, the first defendant gave a reply notice containing false details and the second defendant did not make any reply. The property in which the first defendant has laid a temporary shed, is a part of the second schedule property and it is not the property which belongs to him by purchase. The plaintiff also denies the facts that the property given for rent to the second defendant is also a part of the first schedule property and it is the first defendant who has rented the same to the second defendant. Further, the claim of the first defendant that he is entitled for the relief under City Tenant Protection Act also denied by the plaintiff. Hence, the plaintiff has filed the suit for the said relief’s. 7. Further, the claim of the first defendant that he is entitled for the relief under City Tenant Protection Act also denied by the plaintiff. Hence, the plaintiff has filed the suit for the said relief’s. 7. The first defendant, in his written statement, has stated that the first schedule property was purchased by him on 16.08.1989 from Ammenal Beevi and the averment that the third schedule property was obtained from Ameenal Beevi for rent is denied by the first defendant. It is the contention of the first defendant that the third schedule property lies on the northern side of the first schedule property and the said first schedule property was purchased by the first defendant, the second defendant taken the third schedule property on rent and he paying the rent to the first defendant and the temporary shed in the third schedule property was put up by the first defendant and he is also paying tax in respect of the said property. On any occasion, no permanent structure in the third schedule property was put up by the second defendant. The first defendant further states that the vacant site measuring North-South 15 feet and East-West 15 feet in the second schedule property was taken by the first defendant for rent. Accordingly, the first defendant in the said vacant site has made permanent walls and also permanent structure by putting asbestos roof. The first defendant was also paying water tax to the Kadaiyanallur Municipality and he was also paying Rs. 50/- as rent to Ameenal Beevi. Hence, the first defendant is claiming relief under the Tamil Nadu City Tenants Protection Act. The first defendant also denied the sale of the plaintiff dated 30.05.1995. The first defendant need not to pay any rent to the plaintiff at the rate of Rs. 250/-. Originally the first defendant was paying rent to Ameenal Beevi at the rate of Rs. 50/- and subsequently the sons of Ameenal Beevi received the rent and made entry in the book and the first defendant also paid rents from 1992 to 1995, whereas the said book was retained by Ameenal Beevi, when he offered the rent in the year 1995 April. The said Ameenal Beevi also demanded the first defendant to resale the property to him, but the demand of the Ameenal Beevi was refused. 8. The said Ameenal Beevi also demanded the first defendant to resale the property to him, but the demand of the Ameenal Beevi was refused. 8. The first defendant also filed a suit in O.S.No.172 of 1995 against the plaintiff/appellant and Others for declaration and permanent injunction in respect of first schedule property and permanent injunction in respect of second schedule property. 9. Both the suits were tried together, wherein, the appellant/plaintiff herself was examined as DW.1 apart from examining one Ameenal Beevi as DW.1 and got marked Exs.B1 to B7 and the first defendant was examined himself as PW.1 apart from examining one Mohamed Sahib as PW.2 and got marked Exs.A1 to A7. 10. The trial Court, on the basis of pleadings and averments, framed common issues and on evaluation of evidence both oral and documents, decreed the suit in O.S.No.464 of 1995 while the suit in O.S.No.172 of 1995 was partly decreed, granting the relief in respect of first schedule property and rejecting the relief in respect of second schedule property. Challenging the same, the appellant/plaintiff preferred the present appeals. 11. The present Second Appeals were admitted on the following respective substantial questions of law: S.A.No.576 of 2002: (i) Whether the lower Appellate Court is right in holding that notice issued under Section 106 of the Transfer of Properties Act is not valid? (ii) Whether the lower Appellate Court is right in dismissing the appeal after seeing that the respondent tenant is not entitled to the benefits of the City Tenancy Protection Act? (iii) Whether the lower Appellate Court is right in holding that the Appellant cannot have the relief of recovery of possession of the plaint schedule property notwithstanding the appellant purchased the property under Exhibit B1, the Sale Deed? 12. S.A.No.2 of 2005: (i) Whether the lower Appellate Court is right in holding that the respondent is not a tenant under the appellant in respect of the plaint second schedule property? (ii) Whether the lower Appellate Court is right in setting aside the judgment of the trial Court having found that the appellant herein is the lawful owner of the plaint second schedule property? 13. For the sake of convenience, the parties will be referred to as per their nomenclature in O.S.No.464 of 1995. 14. (ii) Whether the lower Appellate Court is right in setting aside the judgment of the trial Court having found that the appellant herein is the lawful owner of the plaint second schedule property? 13. For the sake of convenience, the parties will be referred to as per their nomenclature in O.S.No.464 of 1995. 14. Issue Nos.1 and 2 of S.A.576 of 2002 and Issue No.1 of S.A.2 of 2005: It is not in dispute that the first schedule property in both the suits are one and the same. The second schedule property is shown with the measurements 15x15 ft. in O.S.No.172 of 1995, whereas, according to the plaintiff in O.S.464 of 1995, it is 15x18. The first defendant claimed that he entered into a lease deed with Ameenal Beevi as regards second schedule property vide Ex.A2 on 20.03.1985 and he made permanent construction over it and that he has been paying rent to the in respect of the said property to the sons of Ameenal Beevi and therefore, according to him, he is entitled to the protection under City Tenants Protection Act. While so, it is pertinent to note that the plaintiff purchased the second schedule property from the original owner Ameenal Beevi by way of sale deed dated 30.05.1995 under Ex.A1 and after purchase, she issued quit notice dated 1.10.1995 under Section 106 of the Transfer of Property Act to the defendants 1 and 2. It is also pertinent to note that the first defendant has purchased the first schedule property from Ameenal Beevi, in respect of which, he claimed declaration of title, which was rightly granted by the trial Court. The first defendant only claims tenancy rights over the second schedule property and sought for protection under City Tenants Protection Act. According to the first defendant, the sale deed executed by the Ameenal Beevi in favour of the plaintiff under Ex.A1 dated 30.05.1995 in respect of second schedule property, is not legally valid and it is not binding upon him. However, in order to prove the same, the first defendant has not produced any documents nor he proved that the original owner Ameenal Beevi had not sold the property to the plaintiff. However, in order to prove the same, the first defendant has not produced any documents nor he proved that the original owner Ameenal Beevi had not sold the property to the plaintiff. Therefore, after purchase the second schedule property from Ameenal Beevi, the plaintiff has rightly issued the quit notice under Section 106 of the Transfer of Property Act to the defendants 1 and 2 which, in the opinion of this Court, is valid since the plaintiff stepped into the shoes of Ameenal Beevi after having purchased the second schedule property and after issuing quit notice, she also terminated the tenancy. Hence, the first defendants is not entitled to the benefits under City Tenants Protection Act. Accordingly, these issues are answered in favour of the plaintiff and against the defendants. 15. Issue No.3 of S.A.576 of 2002 and Issue No.2 of S.A.2 of 2005. There is no dispute as regards first schedule of property, which was admittedly purchased by the first defendant from Ameenal Beevi and both the Courts below also granted declaration of title and permanent injunction over the said property. As regards the second schedule property is concerned, according to the plaintiff she purchased from Ameena Beevi, measuring 15x 18 feet which is situated on northern side of fist schedule property. However, according to the first defendant, 3rd schedule property measuring East-West 6 feet 2 inches and South-North 6 feet 9 inches and 4th schedule property measuring East-West at North point 15 feet and South point 8 feet 10 inches and South North at West point 11 feet and 3 inches and East point 18 feet. Therefore, according to the first defendant, the total measurement of the 3rd schedule and 4th schedule property, which are part of the second schedule property, is higher than the extent of second schedule property, for which, the plaintiff has no right or title and she cannot claim recovery of possession of the same. 16. The Advocate Commissioner was appointed by the trial Court to inspect the suit property. He filed a report along with a plan. In the report, it is observed that the major portion of the third schedule property falls in the first schedule property and it is kept vacant. 16. The Advocate Commissioner was appointed by the trial Court to inspect the suit property. He filed a report along with a plan. In the report, it is observed that the major portion of the third schedule property falls in the first schedule property and it is kept vacant. The Advocate Commissioner has mentioned the measurements of the first schedule property as North-South 11 feet 6 inches and 1 feet 6 inches as width and the second schedule property measurement has been shown as North South 14 feet. In between the first schedule and the second schedule property measure 6 feet and 9 inches. There was no objection raised either by the plaintiff and the defendants over the report of the Advocate Commissioner. The plaintiff has purchased the property from Ameenal Beevi, situated on North South 15 feet and the first defendant purchased the property situated on North South 18 feet and this has been accepted by both the plaintiff and the first defendant. Leaving the third schedule property, the plaintiff's property North-South measurement shows 11+ feet and the first defendant's property North-South measurement shows 14 feet. Further the Commissioner report also reveals the fact that on the South side of the first schedule property, there were road lines and in between the road lines and the first schedule property, there is a vacant site. The Commissioner has not measured the property with the boundaries, however, he measured the property from the constructed wall in the second schedule property. It has to be assessed that when both the parties admit that the property of the Ameenal Beevi lies on the North, the measurement has been taken by the Commissioner from the permanent construction of the wall. The Commissioner report also shows that the measurement of the second schedule property is 14 feet and the further Southern side the measurement has been shown as 6 feet 9 inches and as per the document, the first defendant North South measurement is 18 feet. The first defendant is entitled for 4 feet out of 6 feet 9 inches in the third schedule property, hence, the remaining 2 feet 9 inches belongs to the plaintiff. 17. The first defendant is entitled for 4 feet out of 6 feet 9 inches in the third schedule property, hence, the remaining 2 feet 9 inches belongs to the plaintiff. 17. It is pertinent to observe that the major portion of the third schedule property lies in the second schedule and the lesser area alone lies in the first schedule property, hence, the 3/4th portion of the third schedule property lies in the second schedule property. It is the evidence of the first defendant that he only constructed the permanent structure and the second defendant is paying rent to him. Further, it is also the evidence of the first defendant that the second schedule property was purchased by the plaintiff and the North South measurement is 18 feet and there were road lines on the Southern side of the first schedule property and the first schedule property is also a vacant site and it has been shown as a area with bushes. The first defendant has also deposed that he has omitted to state that the 6 feet on North South property given to Sahul Ahmeed (second defendant) for rent. It is also the clear evidence of the first defendant that there is no written document for giving rent to Sahul Hameed. Further, the said Sahul Hameed who was the tenant under first defendant, was not examined by the first defendant. Further, it is also observed that for the legal notice issued by the plaintiff, the second defendant who claimed to be his tenant has not made any reply. Hence, it has to be presumed that the second defendant Sahul Hameed was originally a tenant under the Ameenal Beevi and was never a tenant of the second defendant. 18. In fact, the original owner who was examined as D.W.2 Ameenal Beevi has clearly deposed that she has sold the property measuring North South 15 feet to the first defendant and the property furthern North measuring 18 feet North South to the plaintiff. The evidence of D.W.2 is different from the chief examination to cross examination regarding the occupation of Sahul Hameed. Ex.B2 is the rental agreement. In the said rent agreement, the measurement has been shown as 15 X 15 feet. It is the property which was rented to Sahul Hameed, hence, the measurement has been shown as 15 feet. The evidence of D.W.2 is different from the chief examination to cross examination regarding the occupation of Sahul Hameed. Ex.B2 is the rental agreement. In the said rent agreement, the measurement has been shown as 15 X 15 feet. It is the property which was rented to Sahul Hameed, hence, the measurement has been shown as 15 feet. Ex.A2 proves that the third schedule property is part of the second schedule property and part of the first schedule property. From the said observation and from the Commissioner Report and also Ex.A2, the lessor measurement has been shown by the first defendant regarding the North South measurement and the larger extent has been purchased by the plaintiff and the said Sahul Hameed is not a tenant of the first defendant and he is only a tenant under Ameenal Beevi. It is observed that the property shown as fourth schedule property has been purchased by the plaintiff from Ameenal Beevi and the same was admitted by the first defendant and the notice canceling the rent by the plaintiff and she is entitled to recovery of possession of the fourth schedule property, hence, the relief sought by the plaintiff with regard to third schedule property, she is entitled for the same. Accordingly, theses issues are answered in favour of the plaintiff and against the defendant. 19. In view of the above discussion, the plaintiff is entitled for recovery of possession of fourth schedule of property. Accordingly, the first defendant has to pay the rent at Rs. 100/- towards fourth schedule property and the second defendant has to pay Rs. 50/- and the plaintiff is entitled to mesne profits at Rs. 150/- from the date of the suuit till the date of judgment payable by the defendants 1 and 2. 20. In the result, the Second Appeals are disposed of accordingly. parties will bear their own costs.