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2022 DIGILAW 721 (MAD)

Venu Reddiar v. Krishnasamy Reddiar

2022-03-22

R.HEMALATHA

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 13.11.2009 passed in A.S. No.69 of 2003, on the file of the Additional District Judge (Fast Track Court), Namakkal, upholding the decree and judgment dated 14.10.1999 passed in O.S. No.162 of 1997, on the file of the Additional District Munsif, Namakkal.) 1. The defendant in O.S. No.162 of 1997 on the file of the Additional District Munsif, Namakkal (the appellant in A.S. No.69 of 2003 on the file of the Additional District Judge, Namakkal) has filed the present second appeal. The plaintiff Krishnasamy Reddiar filed the suit through his Power of Attorney holder Rengasamy Reddiar for recovery of possession of the suit property which is a tiled house in D.No.1/56 A, situate in Survey No.259/12 of Muttanchetti village from the defendant Venu Reddiar. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated. 3. The case of the plaintiff is that the suit property originally belonged to his father Krishnasamy Reddiar through a registered sale deed dated 27.08.1908 (Ex.A2) and that the defendant was inducted as a tenant on a monthly rent of Rs.25/-. It is the further case of the plaintiff that the defendant committed willful default in payment of rents since September 1996 and that though several demands were made by the plaintiff in person, the defendant did not pay any amount towards rent. He, therefore, issued a legal notice dated 04.02.1997 (Ex.A5) calling upon the defendant to vacate and deliver vacant possession of the suit property within a month. Though the defendant received the said notice as evidenced by the postal acknowledgment card (Ex.A6), there was no response from him. Hence, he filed the suit through his Power Agent (Power of Attorney Ex.A1) for recovery of possession and for costs. 4. In the written statement the defendant had denied all the allegations of the plaintiff. In fact, his contention is that he constructed a superstructure in a Government land which is on the southern side of Survey No.259/12 (suit land). According to him he has been paying necessary tax to the superstructure and that a patta (Ex.B1) dated 09.10.1997 was also issued to him. He, therefore, prayed for the dismissal of the suit. 5. In fact, his contention is that he constructed a superstructure in a Government land which is on the southern side of Survey No.259/12 (suit land). According to him he has been paying necessary tax to the superstructure and that a patta (Ex.B1) dated 09.10.1997 was also issued to him. He, therefore, prayed for the dismissal of the suit. 5. The trial court after framing necessary issues and after full contest decreed the suit in favour of the plaintiff with costs vide its decree and judgment dated 14.10.1999 on the following grounds. 1) The defendant did not specifically deny the landlord-tenant relationship between him and the plaintiff in his written statement. 2) The plaintiff had filed the sale deed (E.A2) and tax receipts (Ex.A3 and Ex.A4) in respect of the suit property. 3) The defendant obtained patta Ex.B1 subsequent to the filing of the suit and therefore no credence can be attached to the said document. No proper procedure was also followed by the Revenue Officials before issuing Ex.B1 patta. 4) Though the Village Administrative Officer of Muttanchetti village was examined as P.W.2, his deposition that Survey Numbers 431/10 and 431/11 (Old Survey No.259/12) are vacant lands cannot be accepted for the simple reason that he did not produce any records from his office. The Adangal extract of the year 1986 produced by him shows that Survey No.430/10 is a vacant land. However, if a house was constructed subsequent to 1986 it would not find place in the Adangal of the year 1986. The chitta is also not useful to decide the case. 5) The defendant did not examine himself as a witness to prove his contentions in the written statement. 6) The D.W.1 could not state the door number of the house in which she is residing. 7) The defendant though received the notice (Ex.A5) under Section 106 of the Transfer of Property Act, he did not send any reply. 8) The boundary description found in Ex.A2 tally with the suit property and the advocate commissioner’s report and plan. 9) When there is a dispute with regard to the Survey Number and measurements of the suit property, the boundary description would prevail over the same. 6. Aggrieved over the same, the defendant filed an appeal in A.S. No.69 of 2003 before the Additional District Court (Fast Track Court), Namakkal. 9) When there is a dispute with regard to the Survey Number and measurements of the suit property, the boundary description would prevail over the same. 6. Aggrieved over the same, the defendant filed an appeal in A.S. No.69 of 2003 before the Additional District Court (Fast Track Court), Namakkal. The learned Additional District Judge, after analysing the oral/documentary evidence adduced on both sides, upheld the findings recorded by the trial court. 7. Now the present second appeal is filed on the following substantial questions of law. 1) Whether the courts below were right in decreeing the suit for possession when no acceptable evidence has been produced by the plaintiff that the superstructure described in the plaint schedule does exist on ground in the Survey Number given in the schedule and when no acceptable evidence is produced to show that the defendant was a tenant in the suit property? 2) Whether the courts below committed an error in granting a decree to the plaintiff when no measurements of the superstructure is given and when the actual extent of the suit property in the survey number is not given in the plaint schedule? 3) Whether the courts below erred in law in decreeing the suit when the superstructure is found to exist only in Survey No.431/11 which is a Government land as per the evidence of P.W.2 and when Ex.B1 patta has been issued in favour of the defendant’s wife in respect of the land in Survey No.431/11 and when no satisfactory evidence is available on record to show that Ex.A3 and A4 relate to the property of the plaintiff? 4) Whether the courts below misdirected themselves in granting a decree in favour of the plaintiff in the absence of the details regarding the extent of the property held by the plaintiff and in the absence of the evidence regarding the extent of the lands comprised in Survey No.430/10 and 430/11 which correspond to the old Survey No.259/12 and the extent of land held by the plaintiff in each of them? 5) Whether the courts below misconstrued the evidence on record and the findings rendered by them are perverse, illegal and not sustainable in law? 8. Heard Mr. S. Kalyanaraman, learned counsel for the appellant and Mr. C. Jagadish, learned counsel for the respondent. 9. Mr. 5) Whether the courts below misconstrued the evidence on record and the findings rendered by them are perverse, illegal and not sustainable in law? 8. Heard Mr. S. Kalyanaraman, learned counsel for the appellant and Mr. C. Jagadish, learned counsel for the respondent. 9. Mr. S. Kalyanaraman, learned counsel for the appellant contended that when no measurement of the suit property is given in the plaint schedule, both the courts below had decreed the suit filed by the plaintiff. He would further contend that though there is no specific pleading in the written statement filed by the defendant denying the landlord-tenant relationship, the same can be inferred from the pleadings. It is also his contention that the Village Administrative Officer (P.W.2) had specifically stated that Survey No.431/10 & 431/11 (Old Survey No.259/12) are vacant lands and therefore, the courts below had wrongly concluded that a house is situate in Survey No.431/10 as per commissioner’s report. 10. Per contra, Mr. C. Jagadish, learned counsel for the respondent contended that as per Order VII Rule 3 of the Code of Civil Procedure, where the subject-matter of the suit is an immovable property, the plaint shall contain a description of the property sufficient to identify it. His further contention is that there is no dispute in identifying the suit property and the defendant’s wife (D.W.1) also admitted the boundary description of the suit property. He would therefore contend that all the observations of both the courts below are based on facts and there is no substantial question of law involved in this case. 11. At the outset, it may be observed that no Survey Number is indicated in Ex.A2 sale deed executed in favour of the plaintiff’s father. However, the boundaries are described. The same boundary description is found in the suit schedule. Apart from this, measurements are indicated in Ex.A2 as South-North 52 cubit (arm length) and East-south 54 cubit (arm lenth). The advocate commissioner’s report shows a house in Survey No.431/11. It is also seen from the records that there is no other house in Survey No.431/11 and hence it can be safely concluded that Ex.A3 and Ex.A4 are the tax receipts in respect of the suit house. Ex.B1 patta was obtained by the defendant subsequent to the filing of the suit. However, he did not adduce any tax receipt for his house. Ex.B1 patta was obtained by the defendant subsequent to the filing of the suit. However, he did not adduce any tax receipt for his house. It is settled law that patta is not a document of title. Moreover, D.W.1 (wife of the defendant) also could not identify her house. The defendant did not specifically deny in his written statement that there was no relationship of landlord-tenant between him and the plaintiff. 12. In fact the defendant did not get into the witness box. He did not state the facts pleaded in the written statement on oath in the trial court and avoided the witness box so that he may not be cross examined. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh Vs. Gurdiar Singh & another reported in AIR 1927 Privy Council 230. 13. The plaintiff has given a valid notice of termination under Section 106 of the Transfer of Property Act (Ex.A5) to the defendant for which there was no response from the defendant. Both the courts below had analysed the evidence on record threadbare and I do not want to repeat the same here. Suffice it to say that all the observations made by both the courts below are based on sound principles of law and facts and by no stretch of imagination they can be said to be perverse warranting interference by this court. 14. Section 100 CPC is a jurisdiction confined to substantial questions of law only. In the decision in Madamanchi Ramappa and Another Vs Muthalur Bojjappa reported in (1964) 2 SCR 673 , the Apex Court observed as follows: “12. 14. Section 100 CPC is a jurisdiction confined to substantial questions of law only. In the decision in Madamanchi Ramappa and Another Vs Muthalur Bojjappa reported in (1964) 2 SCR 673 , the Apex Court observed as follows: “12. The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. ....................... If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.” 15. In the result, 1) The second appeal is dismissed. No costs. 2) The decree and judgment dated 13.11.2009 passed in A.S. No.69 of 2003, on the file of the Additional District Judge (Fast Track Court), Namakkal, and the decree and judgment dated 14.10.1999 passed in O.S. No.162 of 1997, on the file of the Additional District Munsif, Namakkal, are upheld.