Madras High Court
Hameed Fathimal And vs Kaja Mohideen on 24 September, 2021
1 S.A.Nos.1155 & 1156 OF 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.Nos.1155 & 1156 of 2003
Kaja Mohideen (Died),
Through his Power of Attorney Agent,
1. Hameed Fathimal and
2. Mohammed Gani ... Appellant / Respondent /
Defendant
2. Hameed Fathima
3. Havva Beevi
4. Minor Najmunisa
5. Minor Abrose
6. Minor Mohammed Ejas Badhusa
(Appellants 2 to 6 are brought on record as LRs. Of the deceased
sole appellant vide Order dated 15.06.2007)
(Minor 6th appellant is represented by his mother/guardian, the third
appellant herein)
(Minor 4th and 5th appellants were declared as majors and the
guardianship of the third appellant was discharged vide Order dated
24.09.2021 in C.M.P.(MD)Nos.7084 to 7087 of 2021)
... Appellants
in both second appeals
Vs.
1. Kaja Mohideen
2. Jawahar Nisha ... Respondents / Appellants /
Plaintiffs
in both second appeals
https://www.mhc.tn.gov.in/judis
1/13
2 S.A.Nos.1155 & 1156 OF 2003
Prayer in S.A.No.1155 of 2003: Second appeal filed
under Section 100 of C.P.C., against the judgment and decree
of the learned I Additional Subordinate Judge, Tirunelveli,
passed in A.S.No.121 of 2002 dated 27.09.2002 reversing the
judgment and decree of the learned I Additional District
Munsif, Tirunelveli, passed in O.S.No.2 of 1999 dated
20.11.2001.
Prayer in S.A.No.1156 of 2003: Second appeal filed
under Section 100 of C.P.C., against the judgment and decree
of the learned I Additional Subordinate Judge, Tirunelveli,
passed in A.S.No.113 of 2002 dated 27.09.2002 reversing the
judgment and decree of the learned I Additional District
Munsif, Tirunelveli, passed in O.S.No.604 of 1999 dated
20.11.2001.
(in both S.As.)
For Appellants : Mr.M.P.Senthil
For Respondents : Mr.A.Arumugam
***
COMMON JUDGMENT
These two second appeals arise out of a suit for
recovery of possession and a suit for permanent injunction.
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2. The suit property in both the suits is one and the
same. O.S.No.2 of 1999 was filed by the respondents herein
seeking the relief of permanent injunction restraining the
original appellant herein from interfering with their
possession and enjoyment of the suit property. O.S.No.604 of
1999 was filed by the original appellant for recovery of
possession from the respondents. Both the suits were tried
together. The first respondent herein examined himself as
P.W.1 and five other witnesses were examined on his side.
Ex.A.1 to Ex.A.13 were marked. The original appellant
examined himself as D.W.1 and three other witnesses were
examined on his side. Ex.B.1 to Ex.B.6 were marked. After a
consideration of the evidence on record, the trial Court by
judgment and decree dated 20.11.2001 dismissed O.S.No.2 of
1999 and allowed O.S.No.604 of 1999. Aggrieved by the same,
the respondents herein filed A.S.No.113 of 2002 and A.S.
No.121 of 2002 before the I Additional Sub Court, Tirunelveli.
By the impugned judgment and decree dated 27.09.2002, the
injunction suit was decreed and the suit for recovery of
possession was dismissed. The original appellant had also filed
cross appeal and that was also dismissed. Challenging the
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same, the present second appeals were filed and they were
admitted on 25.07.2003 on the following substantial questions
of law:-
“1) Whether the findings of the lower
appellate Court are initiated by its failure to
consider the absence of any evidence that the
respondents are in enjoyment of the suit
property on the basis of lease arrangement
between the appellant's father and the
respondents especially when P.W.2 to P.W.5
speak only about the enjoyment and not with
reference to any lease agreement?
2) Whether the lower appellate Court is
right in holding that the respondents are the
lessees of the vacant site in the absence of any
pleading with reference to the terms of the
lease, period of the lease, date of
commencement of the lease and the nature of
the lease especially when the burden of proof is
only upon the respondents who claim on the
basis of alleged lease?
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3) Whether the lower appellate Court is
right in inferring the possibility of lease between
the appellant's father and the respondents after
having found that there are no documentary
evidence evidencing the lease?
4) Whether the lower appellate Court is
right in granting a decree for injunction
especially when it is established that the
respondents trespassed in the suit property on
the basis of the ex-parte order obtained against
the appellant with the assistance of police and in
the circumstances the respondents' possession is
unlawful? “
3. During the pendency of the second appeals, the
original appellant passed away and his legal representatives
were brought on record. The learned counsel appearing for
the appellants submitted that there is no dispute that the suit
property belongs to the appellants. The first respondent
herein was doing “ Pandhal “ business and he was permitted
to stack his bamboos on the suit property. The suit property
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was permitted to be used during the festival occasion every
year. During the festival period, the respondents were also
allowed to put up a tea shop. The dispute however arose
between the parties some time in the year 1998, when the
original appellant wanted to put up a compound wall enclosing
the suit property. The firm contention of the learned counsel
appearing for the appellants is that the respondents were
allowed to enjoy the suit property only as a licensee and that
there was no lease arrangement between the parties at any
point of time. The respondents ought to have surrendered the
premises, the moment the license was revoked. There is no
necessity to issue any formal notice of revocation. The
institution of the suit itself can be construed as a notice of
revocation. According to the appellants, the trial Court
correctly approached the issues and the first appellate Court
without any justification reversed the said decision. The
conclusion of the first appellate Court is perverse. The learned
counsel called upon this Court to answer the substantial
questions of law in favour of the appellant and set aside the
impugned judgment and decree and restore the decision of the
trial Court.
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4. Per contra, the learned counsel appearing for the
respondents submitted that the original appellant was never
consistent in his stand. The respondents initiated litigation by
filing an injunction suit. The stand of the original appellant
was that the respondents herein were encroachers. But this
theory of trespass was given up in O.S.No.604 of 1999 filed by
him. The original appellant shifted his stand and contended
that the respondents herein were permissive occupants. The
witnesses on the side of the plaintiffs as well as the original
appellant had deposed that the respondents were in
occupation of the suit property for several years. Therefore,
the first appellate Court concluded that this established the
existence of lease arrangement between the parties. It is not
necessary that a lease should be in writing. It can also be
oral. The statutory definition of lease as per the Transfer of
Property Act states that the lease can be implied also.
According to the learned counsel, the appellants must have
received rents periodically and that is how, the respondents
herein were in occupation of the suit property for a very long
number of years even prior to the filing of the suit. This being
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a pure question of fact does not call for any interference in
exercise of jurisdiction under Section 100 of C.P.C.
5. Once it is seen that the relationship between the
parties is one of lessor and lessee, to terminate the same,
notice under Section 106 of the Transfer of Properties Act is
mandatory. While any short fall in the notice period can be
excused and the termination notice will not be rendered
invalid on that account. But ejectment suit must be preceded
by a notice of termination unless there is contract to the
contrary or there has been a waiver by the respondents. In
this case, the respondents have not waived the requirement of
issuing notice under Section 106 of the Transfer of Property
Act. Therefore the first appellate Court rightly reversed the
decision of the trial Court and the same does not call for any
interference.
6. I carefully considered the rival contentions and
went through the evidence on record.
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7. There is no dispute that the suit property belongs
to the appellants. The only question that has to be gone into is
whether the respondents are in occupation of the suit property
as lessees or as licensees. The expression “ lease “ has been
defined in Section 105 of the Transfer of Property Act, 1882 as
follows:-
“ 105. Lease defined.— A lease of
immovable property is a transfer of a right to
enjoy such property, made for a certain time,
express or implied, or in perpetuity, in
consideration of a price paid or promised, or of
money, a share of crops, service or any other
thing of value, to be rendered periodically or on
specified occasions to the transferor by the
transferee, who accepts the transfer on such
terms. “
On the side of the respondents herein, as many as 13
documents were marked. Ex.A.1 is a receipt issued by
Tirunelveli Corporation. It does not assist in coming to any
conclusion as regards the nature of relationship between the
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parties. None of the documents marked by the respondents
can lead to the conclusion that there was any lease
arrangement between the parties. We are left only with the
oral evidence adduced by both the parties. The appellants'
stand is that the respondents were permitted to occupy the
suit property. Of course as pointed out by the learned counsel
appearing for the respondents, the appellants had originally
taken a plea that the respondents are encroachers. Later, he
admitted that the respondents were licensees. I am of the view
that when the respondents had taken the stand that they are
lessees and not licensees, then the burden certainly lay on
them to prove the same. It is true that when both the parties
have adduced evidence, the burden of proof really lapses into
insignificance. The only question which I am called upon to
answer is whether based on the evidence on record, the
inference of the trial Court that the respondents are licensees
is correct or whether the finding of the first appellate Court
that the respondents are lessees is correct. The respondents
had pleaded that they were paying ground rent to the original
appellant and that there was also a written agreement
between the parties. The respondents would claim that the
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original appellant induced them to part with the said
document on the plea that a revised agreement is to be
entered into. If that be so, the respondents could have marked
a photocopy of such document. No such photocopy was
marked. The first appellate Court had reversed the finding of
the trial Court on the sole ground that the respondents were
found to be in occupation of the suit property for almost 20
years even prior to the institution of the suit. In my view,
mere length of period of occupation cannot be determinative
of the issue. In the case of lease arrangement, there is
something called payment of premium or periodical rent. The
respondents have not marked any receipt indicating payment
of rent to the original appellant. Of course, the other
witnesses examined on the side of the plaintiffs as well as
D.W.4 examined on the side of the original appellant herein
have admitted that the respondents have been in occupation
of the suit property for a very long time. This in my view is not
sufficient to come to the conclusion that the arrangement
between the parties was one of lease. Therefore, I answer the
substantial questions of law in favour of the appellants.
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8. The learned counsel appearing for the appellants
informs the Court that the appellants herein would not press
their claim for payment of damages for use and occupation for
the entire period.
9. The impugned judgment and decree are set aside
and the decision of the trial Court is restored. These second
appeals are allowed. No costs.
24.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The I Additional Subordinate Judge,
Tirunelveli.
2. The I Additional District Munsif,
Tirunelveli.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.1155 & 1156 of 2003
24.09.2021
https://www.mhc.tn.gov.in/judis
