Madras High Court
Venu Reddiar vs Krishnasamy Reddiar on 22 March, 2022
S.A.No.1155 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1155 of 2011
Venu Reddiar ...Appellant
Vs.
Krishnasamy Reddiar ... Respondent
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.
For Appellant : Mr. S. Kalyanaraman
For Respondent : Mr. C. Jagadish
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S.A.No.1155 of 2011
JUDGMENT
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
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S.A.No.1155 of 2011
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.
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S.A.No.1155 of 2011
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 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.
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S.A.No.1155 of 2011
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. The learned Additional District Judge, after analysing
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S.A.No.1155 of 2011
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
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S.A.No.1155 of 2011
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.
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S.A.No.1155 of 2011
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
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S.A.No.1155 of 2011
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. 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.
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S.A.No.1155 of 2011
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.
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S.A.No.1155 of 2011
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
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S.A.No.1155 of 2011
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.
22.03.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A.No.1155 of 2011
R. HEMALATHA, J.
bga
To
1. The Additional District Judge (Fast Track Court), Namakkal.
2. The Additional District Munsif, Namakkal.
3. The Section Officer, V.R. Section, High Court, Madras.
S.A.No.1155 of 2011
22.03.2022
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