IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 10.11.2009
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
S.A.No.31 of 2007
Thambusamy ... Appellant
Vs.
Mani ... Respondent
Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 17.1.2006 made in A.S.No.70 of 2005 on the file of the Additional Sub-Court, Mayiladuthurai confirming the judgment and decree dated 22.12.2004 made in O.S.No.236 of 2003 on the file of the Addl.District Munsif Court, Mayiladuthurai.
For Appellant : Mr.S.Sounthar
For Respondent : Mr.N.Sankaravadivel
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JUDGMENT
This Second Appeal arises out of concurrent findings of Courts below decreeing plaintiff's suit and ordering recovery of possession and payment of arrears of paguthy (lease rent). Unsuccessful defendant is the appellant.
2.Suit property relates to 0.02 acres in S.No.22/16 of Kadichampady village. Case of respondent/plaintiff is that he purchased suit property from one Gnanasambanda Desikar and Gnanaprakasa Desikar by way of the sale deed dated 09.02.1959. Out of 15 cents purchased by plaintiff, 2 cents was given to appellant/defendant on oral paguthy arrangement on 01.08.1980. Further case of plaintiff is that from January 2001 defendant failed to pay paguthy and defaulted in paying paguthy for about 2 years. Plaintiff issued legal notice on 08.01.2003 and caused another notice Ex.A5(04.02.2003) to defendant to hand over vacant possession on 01.03.2003. Defendant received the said notice and sent reply (Ex.A8-13.02.2003). In his reply defendant denied title of plaintiff in the suit property. Hence, plaintiff filed suit seeking recovery of possession and also arrears of paguthy (lease rent).
3.Resisting the suit, defendant filed written statement contending that he was working under Kakthan Mudaliar, son of Govindasamy Mudaliar as a coolie and suit property belongs to Govindasamy Mudaliar. Defendant was permitted to put up thatched shed in the suit property. Defendant pleaded that he perfected his title to the suit property by adverse possession and defendant has thus become title holder of the suit property. According to defendant, plaintiff ought to have filed suit for declaration before seeking recovery of possession and plaintiff is not entitled to the relief sought for.
4.On the above pleadings four issues were framed in the trial Court. On plaintiff's side, plaintiff was examined as PW1 and Exs.A1 to A8 were marked. Defendant examined himself as DW1 and one witness Govindasamy was examined as DW2. No document was marked on defendant's side.
5.Upon consideration of oral and documentary evidence, trial Court held that defence plea that the defendant came to be in possession under Govindasamy Mudaliar was not substantiated by any oral or documentary evidence. Trial Court further held that the defendant has neither proved his possessary right to the suit property nor proved his title. Laying emphasis upon Ex.A9 reply notice wherein defendant has admitted that he is a paguthidar, trial Court rejected the defence plea and decreed the suit as prayed for.
6.Being aggrieved by judgment of trial Court, defendant preferred appeal in A.S.No.70 of 2005. Reiterating the findings of the trial Court, Lower Appellate Court held that in Ex.A9 reply notice defendant has admitted his lease of the vacant site and therefore, defendant cannot deny being a paguthidar. In so far as contention regarding limitation, lower Appellate Court held that the defendant has not come out with a clear case as to how he came to be in possession of the suit. Confirming findings of the trial Court, lower Appellate Court dismissed the first appeal.
7.Being aggrieved by concurrent findings of Courts below directing delivery of vacant possession plaintiff has filed this Second Appeal. At the time of Admission, the following Substantial question of law was framed for consideration:
"Whether the findings of the Lower Courts that there exist landlord-tenant relationship between the parties is vitiated by perversity as there is no legal evidence to support such evidence"
8.The learned counsel for appellant contended that the oral tenancy pleaded by respondent/plaintiff is not supported by any independent evidence. It was mainly contended that on the basis of Ex.A9, a part of which being torn, Court cannot come to a definite conclusion that the defendant is a paguthidar. The learned counsel would further submit that concurrent findings of Courts below that the defendant is a paguthidar is based on no evidence and therefore warrants interference by the High Court exercising jurisdiction under Sec.100 of C.P.C.
9.The learned counsel for respondent submitted that even though defendant has alleged that he has been paying the house tax, no document was produced by the defendant. It was further argued that neither Govindasamy Mudhaliar nor his family members or manager were examined to substantiate defense plea. Learned counsel for respondent/plaintiff further argued that based on evidence of PW1 and conduct of defendant, Courts below recorded concurrent findings that defendant is a paguthidar and such concurrent findings of fact cannot be interfered with.
10.Under Ex.A1(09.02.1959), through which plaintiff traces his title to the suit property, plaintiff purchased 15 cents from Gnanasambanda Desikar and Gnanaprakasa Desikar. To prove his ownership, plaintiff has also produced Ex.A2-Adangal and Ex.A3-Chitta in his favour issued by the Revenue Authorities. Out of 15 cents purchased under Ex.A1, 2 cents was given to the defendant under an oral paguthy arrangement (lease of site) on rent which was fixed periodically. In his evidence plaintiff/PW1 has clearly spoken about oral paguthy arrangement from 01.08.1980 and lease rent payable and that defendant committed default in paying lease rent from 2001 onwards.
11.Per contra, defendant traces his right through one Govindasamy Mudaliar under whom he worked. According to defendant, family of Govindasamy Mudaliar permitted him to put hut in the suit property, about 30 years prior to the filing of suit and accordingly he is in possession of the property. As held by Courts below, defendant has not adduced any evidence to substantiate his plea. Neither Govindasamy Mudaliar nor his family members or manager was examined to prove the defence plea. Pointing out lack of evidence by concurrent findings of Courts below rightly rejected defence plea that defendant came to be in permissive possession of the suit property on permission from Govindasamy Mudaliar.
12.In the stay petition filed in the High Court in 2006, age of defendant is stated as 46, which means that the defendant must have been born around 1960. In the trial Court, written statement was filed by the defendant in 2004. In the written statement defendant averred that he came to be in possession of the property for a quite long time. It is quite unbelievable that he came to be in possession of the suit property even while he was very young. According to defendant, his family is in possession of the suit property from lifetime of his father. Even though defendant claimed to be in possession of suit property by putting up hut from 1947 and paying house tax, defendant has not produced any document to prove his possession. Ex.A1-Settlement deed, Ex.A2-Adangal and Ex.A3-Chitta would clearly falsify the defence plea.
13.Even though defendant has denied paguthy arrangement with the plaintiff, earlier defendant admitted being a paguthidar under plaintiff. As pointed out by Courts below, in response to Ex.A8 notice (22.4.1980), Ex.A9 (06.06.1980) reply was sent. Admitting payment of paguthy in Ex.A9-reply notice it is averred as follows:-
"My client's son is residing in the property by putting up a superstructure. He is also paying the paguthy to your client. He is also entitled to the benefits of the Kudiyiruppu Act"
14.Denying receipt of Ex.A8 notice, learned counsel for defendant contended that a portion of Ex.A9 has been torn and therefore, no reliance could be placed upon contents in Ex.A9. As held by Courts below, even though defendant denied receipt of notice, he has admitted his signature in Ex.A7 acknowledgment. That apart perusal of Ex.A9 shows that notice has been sent to the plaintiff's counsel. Even though name of defendant is not there in Ex.A9, it contains name of plaintiff's counsel and plaintiff's name and crucial admission by the defendant being a paguthidar. There is no force in the contention that Courts below committed error in placing reliance upon Ex.A9.
15.Next limb of argument is that under Ex.A8 tenancy was terminated w.e.f.31.05.1980 and defendant was called upon to hand over vacant possession on 01.06.1980. Learned counsel for defendant contended that Ex.A8 notice was deliberately suppressed by plaintiff and plaintiff has come out with a plea as if there was a paguthy arrangement w.e.f.01.08.1980 and therefore plaintiff ought to have been non-suited for not coming out with clean hand. As rightly submitted by learned counsel for respondent/plaintiff, after exchange of notice in 1980, lease might have been renewed. Merely because there is no mention about Exs.A8 and A9 in the suit, correctness of Exs.A8 and A9 cannot be doubted.
16.Laying stress upon contents in Ex.A8, terminating tenancy w.e.f 31.05.1980, learned counsel for defendant contended that after termination of tenancy, suit was filed in 2003 after a period of 23 years and suit is clearly barred by limitation. It was further submitted that as per Art.67, 12 years period is stipulated for a landlord to recover possession from a tenant from the time when the tenancy is determined. Onbehalf of appellant, it was contended that when tenancy was determined even in May 1980, the suit filed in 2003 is clearly barred by limitation. Contending that date of determination of tenancy is starting point of limitation, learned counsel for appellant/defendant placed reliance upon AIR 1965 Orissa 11, Bhagabat Patnaik and others Vs. Madhusudhan Panda and others.
17.As pointed out earlier after exchange of notice in 1980, lease might have been renewed afresh. In his evidence PW1 has clearly spoken about paguthy arrangement from 31.08.1980, initially lease rent of Rs.1 per month from 1982 to 1990 and thereafter fixed at Rs.7/- per month. Plea of limitation was neither raised in the written statement nor made an issue in the trial Court. For the first time, plea of limitation was raised only in the lower Appellate Court.
18.Contending that plea of bar of limitation need not be pleaded and it is a question of law and Court has duty to take note of plea of limitation, learned counsel for defendant placed reliance upon 1996.1.MLJ, page 1, The Commissioner of Land Administration, Chepauk, Madras and others Vs. The Executive Officer, Arulmighu Theagaraja Swamy Devasthanam, Thiruvarur, Thanjavur in which the First Bench of this Court has held as under:
"....It is a well-known principle of law that if a proceeding instituted is barred by limitation, even the court concerned or the authority before whom such proceedings barred by limitation are instituted itself has a duty and obligation to reject the proceedings as barred by limitation de hors the fact whether such a plea has been set out in defense or not....."
The above decision arises out of proceedings under Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act. In the said proceedings Sec.70 of the Act provides for limitation in respect of the proceedings under the Act. In the said decision, the question of limitation was a pure question of law. In such circumstances, First Bench has held that Court has duty and obligation to reject the proceedings whether such a plea of limitation has been set out in defence or not.
19.The ratio of the above decision cannot be applied to the case in hand. In Civil suits under Or.VIII, R.2.C.P.C, defendant must raise in his pleadings all matters as to fraud, limitation or facts showing illegality. Order VIII, Rule 2 C.P.C reads as under:
"New facts must be specifically pleaded. Defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance or facts showing illegality."
All points either of law or fact which are desired to be taken must be particularly pleaded and they should be stated in the written statement specifically and clearly. It is well settled that where a claim has never been in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. Facts showing non-maintainability of suit because of limitation not pleaded by defendant cannot be raised at close of trial.
20.In this case whether Ex.A8 notice was issued or not and whether tenancy was terminated or not w.e.f.31.05.1980 is a question of fact. Likewise, whether thereafter tenancy was renewed afresh is also a question of fact. In such facts and circumstances, the plea of limitation is a mixed question of law and fact and ought to have been pleaded by the defendant.
21.When the question of limitation is purely one of law capable of determination on the facts admitted or proved, the Court is bound to raise it suo motu and decide it. But where the question of limitation raises issues of fact not arising from the plaint, defendant is bound to raise it in written statement and if he fails to do so, the Court may refuse to allow the question to be raised. Exs.A8 to A9 were not shown in the plaint. In the light of denial of lease arrangement, when PW1 was in the box, Exs.8 and A9 were produced. As pointed out earlier, defendant denied exchange of notice in May 1980. While so, based on Exs.A8 and A9 the defendant cannot turn round and contend that the suit is barred by limitation and same was rightly negatived by lower Appellate Court.
22.Plaintiff has established his title by Ex.A1 to A3 and has proved the lease arrangement with the defendant and that defendant has committed default in payment of paguthy. In a catena of decisions, Supreme Court has held that as general rule, where the findings of the Courts below based on evidence and when the Courts below recorded concurrent findings of fact, High Court will not normally interfere with the concurrent findings of the Courts below exercising jurisdiction under Sec.100 C.P.C (See 2009 (4) LW125 Narayanan Rajendran & another Vs. Lakshmy Sarojini & others)
23.In the result, the judgment of the Lower Appellate Court in A.S.No.70 of 2005 on the file of the Additional Sub-Court, Mayiladuthurai confirming the judgment and decree dated 22.12.2004 made in O.S.No.236 of 2003 on the file of the Addl.District Munsif Court, Mayiladuthurai is confirmed and the Second Appeal is dismissed. No costs.
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