In the High Court of Judicature at Madras
Dated : 05.01.2010
Coram:
The Honourable Mrs. Justice R.BANUMATHI
Second Appeal No.90 of 2007
1.Mohammed Ibrahim
2.Habibunnisa .. Appellants
vs.
1. K.M.Ghani
2. Saroja Ammal
3. Rajendran
4. Ramu .. Respondents
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 16.06.2006 made in A.S.No.21 of 2005 on the file of Additional Sub-Court, Virudhachalam, confirming the judgment and decree dated 23.12.2004 made in O.S.No.18 of 2003 on the file of District Munsif-cum-Judicial Magistrate, Neyveli (Transferred suit in O.S.No.264 of 1984 District Munsif Court, Virudhachalam)
For Appellants : Mr.V.Anandhamoorthy
For Respondents : No appearance for R1 & R4
R2 and R3 - given up
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JUDGMENT
This second appeal arises out of judgment in A.S.No.21 of 2005 confirming judgment of trial Court decreeing plaintiff's suit for declaration and recovery of possession of the suit property from defendants 1, 2 and 8. Unsuccessful defendants 1 and 2 are the appellants. For convenience, parties are to referred to in their original rank in the suit.
2. Suit property relates to Door No.141 of Gangaikondon Village, Neyveli. Suit site belongs to Neyveli Lignite Corporation. Third defendant's husband Azhagappa Chettiar had trespassed into the suit property and constructed a building and he was in enjoyment of the same. There is no dispute between the parties that the suit property originally belonged to Azhagappa Chettiar.
3. Case of plaintiff is that Azhagappa Chettair sold the suit property to 9th defendant and 9th defendant sold the suit property superstructure under Ex.A1 sale deed (dt. 01.11.1978) in favour of plaintiff. Plaintiff has obtained proper licence from Neyveli Lignite Corporation and has been paying tax to Gangaikondon Panchayat. Plaintiff has let out suit building on 20.08.1980 on a monthly rent of Rs.120/- in favour of defendants 1 and 2. Defendants 1 and 2 are running a grocery shop under the name and style 'Habeep Traders'. Even though defendants 1 and 2 have agreed to surrender vacant possession of the building soon after expiry of tenancy period, they did not vacate and hand over possession. From 30.12.1985 defendants 1 and 2 are proclaiming that the suit property belongs to 8th defendant and that they are tenants under 8th defendant, which is legally not sustainable. Stating that defendants 1 and 2 are estopped from saying that 8th defendant is the owner of the property, plaintiff filed the suit for declaration of his title and also for eviction of defendants 1 and 2.
4. Resisting the suit, defendants 1 and 2 have filed written statement contending that Azhagappa Chettiar was indebted to one Govindasamy Padayachi son of Krishna Padayachi. According to defendants 1 and 2, after the death of Azhagappa Chettiar, the said Govindasamy Padayachi filed a suit in O.S.No.709 of 1981 against the legal heirs of Azhagappa Chettiar before District Munsif Court, Virudhachalam. The property belonging to Azhagappa Chettiar was brought to sale on 05.10.1983 and 8th defendant had purchased the property in Court auction and the sale was confirmed on 03.05.1985 and Ex.B1 sale certificate was issued in favour of 8th defendant. Defendants 1 and 2 pleaded that 8th defendant had become absolute owner of the property. According to defendants 1 and 2, first defendant purchased the suit property from 8th defendant under Ex.B3 sale deed (dt. 03.01.1986) and from then onwards, first defendant is in possession and enjoyment of the property and that the plaintiff has no right, title or interest over the suit property. Stating that rental agreement entered into between the plaintiff and the first defendant ceased and that there was no landlord and tenant relationship between them, defendants 1 and 2 prayed for dismissal of the suit.
5. Based on the above pleadings, seven issues were framed in the trial Court. Plaintiff was examined as PW1 and one Srinivasan was examined as P.W.2. On plaintiff's side, Exs.A1 to A6 were marked. On the side of defendants, first defendant was examined as D.W.1 and Exs.B1 to B23 were marked.
6. Upon consideration of oral and documentary evidence, trial Court held that Ex.A1 sale deed (dt. 01.11.1978), which is prior in point of time, will prevail over the Court auction sale in favour of 8th defendant. Trial Court further held that plaintiff's sale deed Ex.A1 being earlier in point of time, on the date of Court auction i.e. on 05.10.1983, judgment debtor-Azhagappa Chettiar had no saleable interest in the property and therefore, the auction purchaser had no valid title to claim under Ex.B1 sale confirmation certificate (dt. 03.05.1985). Trial Court further held that defendants 1 and 2 having become tenants under plaintiff, cannot deny the title of the plaintiff and on those findings, decreed plaintiff's suit for declaration of title and delivery of possession.
7. Being aggrieved by decreeing of suit, defendants 1 and 2 filed an appeal in A.S.No.21 of 2005. Referring to the evidence of D.W.1, lower appellate Court held that defendants 1 and 2 having become tenants under the plaintiff, are estopped from denying the ownership of the plaintiff. In so far as the Court auction sale in O.S.No.709 of 1981 is concerned, lower appellate Court held that the plaintiff is not a party in the said proceedings and therefore decree in O.S.No.709 of 1981 and the subsequent execution proceedings are not binding upon the plaintiff. In so far as Exs.B4 to B21 are concerned, lower Appellate Court held that all the documents are after the present suit in O.S.No.264 of 1986, which was re-numbered as O.S.No.18 of 2003, and those documents cannot have precedence over Ex.A1 sale deed in favour of the plaintiff. Confirming the judgment of the trial Court, lower appellate Court dismissed the appeal preferred by the contesting defendants 1 and 2.
8. Being aggrieved by the concurrent findings of Courts below, appellant/defendants 1 and 2 filed the Second Appeal. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:-
"1. Whether the Courts below are correct in law in decreeing the suit merely on the basis of Ex.A1 wherein the plaintiff was not able to trace out his anterior title by producing necessary evidence, while so the Courts below ought to have drawn adverse inference under Section 114(g) of the Evidence Act?
2. Whether the findings of the Courts below in rejecting the purchase made by the appellants from the Court auction purchaser under Ex.B3 dated 03.01.1986 is acceptable one because the said findings would amount to nullifying the decree granted in O.S.No.709 of 1981 and the consequential execution made in E.P.No.390 of 1983?
3. Whether the suit for declaration and recovery of possession is maintainable in law without impleading the Neyveli Lignite Corporation as party defendant in the present suit particularly when the NLC is a proper and necessary party to this proceedings?
4.Whether the plaintiff has discharged the burden of proof to get declaration and recovery of possession especially when the execution proceedings in E.P.No.390 of 1983 had obtained finality, and furthermore, there was no objection of obstruction recorded at the time of taking delivery in E.P.No.390 of 1983 at the instance of the plaintiff or the 9th defendant."
9. Respondents 1 and 2 were served, but they have not entered appearance. Their names were printed in the cause list. Heard the arguments of the learned counsel for the appellants Mr.V.Ananthamoorthy.
10. Learned counsel for the appellants contended that the plaintiff never objected to the possession of defendants 1 and 2 and the plaintiff has not chosen to produce any valid document and therefore, based on Ex.A1 sale deed alone, he cannot succeed. It was further contended that the lower appellate Court erred in saying that appellants have not proved the genuineness of Exs.B1 to B3, which are sale certificate dated 03.05.1985, certified copy of auction receipt dated 10.09.1985 and sale deed dated 03.01.1986 executed by 8th defendant pursuant to sale confirmation certificate. It was further contended that when execution proceedings had attained finality, Ex.A1 sale deed in favour of plaintiff cannot prevail over Exs.B1 to B3. Placing reliance upon 2006 (4) CTC 79 (Hero Vinoth (minor) v. Seshammal), it was submitted that even though Courts below recorded concurrent findings, those findings being erroneous, High Court can very well interfere with the same by exercising jurisdiction under Section 100 C.P.C.
11. There is no dispute that suit property in Door No.141, Gangaikondan Panchayat in R.S.No.250 was originally in enjoyment of Azhagappa Chettiar. There is also no dispute that the said Azhagappa Chettiar had sold the superstructure to 9th defendant Velmurugan and the said Velmurugan sold the same to the plaintiff under Ex.A1 sale deed (dt. 01.11.1978). Even though sale deed in favour of D9 was not filed, in the recitals in Ex.A1 sale deed, 9th defendant has clearly stated that he is the owner of superstructure and that the site belongs to Neyveli Lignite Corporation. The recitals in Ex.A1 is to the effect that the superstructure in Door No.141 has been sold to the plaintiff.
12. Based upon Ex.A1 sale deed, house tax assessment also changed in the name of the plaintiff. Neyveli Lignite Corporation has also granted licence to the plaintiff and received annual rent for the site as seen from Ex.A5 (dt. 28.07.1985). Exs.A1 to A6 clearly show that plaintiff is the owner of the superstructure in Door No.141. Bill Collector, Gangaikondan Panchayat, who was examined as P.W.2, has deposed that from the year 1983-1984 upto 2003-2004, the house tax assessment has been levied in favour of the plaintiff. In his evidence, P.W.2 has stated that the records are not available prior to the assessment year 1983-84. Overwhelming oral and documentary evidence establishes plaintiff's case that he is the owner of the superstructure.
13. In his evidence, first defendant/D.W.1 has also admitted that the defendants became tenants under the plaintiff in the year 1980 and that they paid rent upto 1985. Having become tenants under the plaintiff, defendants are estopped from denying the ownership of the plaintiff. When once the relationship of landlord and tenant is established or admitted, the tenants cannot raise any defence that the landlord has no right in the demised property. As rightly held by the lower appellate Court, being tenants defendants 1 and 2 cannot deny the title of their landlord viz. plaintiff.
14. Defendants 1 and 2 claimed right of possession in the suit property by virtue of Ex.B3 sale deed (dated 03.01.1986) executed in favour of 8th defendant-Ramu. Case of defendants 1 and 2 is that the original owner viz. Azhagappa Chettiar was indebted to one Govindasamy Padayachi and the said Govindasamy Padayachi has filed O.S.No.709 of 1981 against the legal heirs of Azhagappa Chettiar and has obtained a decree. Further case of defendants 1 and 2 is that property belonging to Azhagappa Chettiar including the suit property was sold in Court auction on 05.10.1983 and 8th defendant had purchased the suit property in the Court auction and sale was confirmed on 03.05.1985 and Ex.B1 Sale Certificate was issued in favour of the 8th defendant. In his evidence, D.W.1 has also stated that 8th defendant had obtained possession through process of Court and thereafter, 8th defendant had sold the suit property to first defendant under Ex.B3 sale deed dated 03.01.1986 for a sum of Rs.11,000/-. Azhagappa Chettiar having already sold his right and interest in the superstructure to D9 and D9 in turn sold the superstructure to the plaintiff under Ex.A1 sale deed (dt. 01.11.1978), on the date of Court auction sale i.e. 05.10.1983 Azhagappa Chettiar had no saleable interest in the suit property. Courts below concurrently held that Ex.B3 sale deed (dt. 03.01.1986) cannot prevail over the earlier sale deed Ex.A1 dated 01.11.1978. Merely because 8th defendant has purchased the suit property by Court auction, 8th defendant is in no better position and when the judgment debtor-Azhagappa Chettiar had no saleable interest, the Court could have conveyed no valid title to the 8th defendant. Consequently, 8th defendant could not have conveyed a valid title to the first defendant. Examining Ex.B3 sale deed vis-a-vis Ex.A1 sale deed, Courts below rightly upheld the title of the plaintiff over the superstructure in the suit property and the second substantial question of law is answered in favour of the respondent/plaintiff.
15. The dispute between the parties is in respect of superstructure, which was put up by Azhagappa Chettiar and later purchased by the plaintiff from 9th defendant. Neyveli Lignite Corporation has also granted licence to the plaintiff by receiving annual rent for the site. When the dispute is in respect of superstructure and when Neyveli Lignite Corporation has granted licence to the plaintiff, Neyveli Lignite Corporation is not a necessary party to the proceedings and substantial question No.3 is answered in favour of the first respondent/plaintiff.
16. Even though defendants 1 and 2 have filed number of documents, viz., Ex.B4 to B21, all the documents are subsequent to the filing of the suit O.S.No.264 of 1986 on the file of District Munsif Court, Vridhachalam, which was subsequently transferred to District Munsif-cum-Judicial Magistrate, Neyveli and re-numbered as O.S.No.18 of 2003. Exs.B4 to B21, which are subsequent to the suit, cannot confer any right in favour of the defendants. Lower appellate Court also taken the view that in O.S.No.709 of 1981 the plaintiff has not been made as a party and therefore, the decree in O.S.No.709 of 1981 and the subsequent execution proceedings would not bind the plaintiff. Plaintiff having purchased the suit property on 01.11.1978 much before filing of the suit by Krishnamurthy Padayachi against legal heirs of Azhagappa Chettiar, the defendants cannot claim any right and title based upon Ex.B3 sale deed.
17. Upon analysis of evidence, Courts below recorded concurrent findings that the plaintiff has proved his right and title of the superstructure in the suit property. The lower appellate Court has also rightly found that defendants 1 and 2 having become tenants under the plaintiff, are estopped from denying the title of their landlord viz. plaintiff. The concurrent findings of Courts below are well-reasoned and do not suffer from any serious error warranting interference exercising jurisdiction under Section 100 C.P.C.
18. In the result, the judgment in A.S.No.21 of 2005 on the file of Additional Subordinate Court, Virudhachalam dated 16.06.2006 is confirmed and the second appeal is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, M.P.No.1 of 2007 is also dismissed.
ATR
To
1. The Additional Subordinate Judge
Virudhachalam.
2. The District Munsif-cum-Judicial Magistrate
Neyveli.
3. The Record Keeper
V.R.Section
High Court,
Madras
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