Madras High Court
The Pazhaverkadu Venkatasami vs John Basha on 2 February, 2023
S.A.Nos.2281 of 2003 and 197 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2023
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
S.A.Nos.2281 of 2003 and 197 of 2007
and
C.M.P.No.1779 and 1783 of 2023
The Pazhaverkadu Venkatasami,
Gramani Trust, by its Trustee,
S.Venkataraman ... Appellant in both S.As
-Vs.-
John Basha ..Respondent in S.A.No.2281 of
Ansar .. Respondent in S.A.No.197 of
Prayer in S.A.No.2281 of 2003: Second Appeal filed under Section
100 of the Code of Civil Procedure Code against the judgment and
decree made in A.S.No.127 of 1998 dated 13.01.2000 on the file of
the VI Additional Judge, City Civil Court, Madras, confirming the
judgment and decree made in O.S.No.10 of 1987 dated 26.06.1996.
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S.A.Nos.2281 of 2003 and 197 of 2007
Prayer in S.A.No.197 of 2007: Second Appeal filed under Section
100 of the Code of Civil Procedure Code against the judgment and
decree dated 18.11.2003 made in A.S.No.225 of 1989 on the file of
VII Additional Judge, City Civil Court, Madras, confirming the
judgment and decree dated 30.11.1988 made in O.S.No.5622 of 1985
on the file of the I Assistant Judge, City Civil Court, Madras.
For appellant ... Mr.R.Thiagarajan
in both cases
For Respondent ... Mr.P.Rajendran
in both cases
COMMON JUDGMENT
The plaintiff in the two suits, which have given rise to the
second appeals is the appellant herein. The facts in both the cases are
the same. Therefore, a common judgment is being pronounced.
2. S.A.No.2281 of 2003 arises from out of the judgment and
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S.A.Nos.2281 of 2003 and 197 of 2007
decree in O.S.No.10 of 1987 on the file of the I Assistant Judge, City
Civil Court, Chennai dismissing the suit filed by the plaintiff as
against which an appeal in A.S.No.127 of 1998 was filed by the
plaintiff before the VI Additional Judge, City Civil Court, Chennai.
3. S.A.No.197 of 2007 arises out of the judgment and decree
in O.S.No.5622 of 1985 on the file of the I Assistant Judge, City Civil
Court, Chennai dismissing the suit filed by the plaintiff, which was
confirmed by the judgment and decree of the VII Additional Judge,
City Civil Court, Chennai in A.S.No.225 of 1989. Both the suits are
filed for recovery of possession of the suit schedule property and for
damages. The suit property, which is the subject matter of O.S.No.10
of 1987 is Door No.78, Vaidyanatha Mudali Street, Tondiarpet,
Madras – 81, comprised in R.S.No.3940/2, S.No.2617, Collector's
Certificate No.3514 measuring an extent of 924 sq.ft. The suit
property, which is the subject matter of O.S.No.5622 of 1985, is Door
No.83 of the very same street, measuring an extent of 1000 sq.ft. in
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S.A.Nos.2281 of 2003 and 197 of 2007
all.
4. It is the case of the plaintiff in both the suits that the land
comprised in S.No.3940/2, Old No.3217, Collector's Certificate
No.3614, measuring 2 ½ kanis at Vaidyanatha Mudali Street,
Tondiarpet absolutely belonged to the Trust and the suit property is a
portion of the larger extent. The defendants in the suits are tenants in
their respective suit properties. The tenant in the suit O.S.No.10 of
1987 was paying a rent of Rs.40/- and the tenant in respect of the suit
O.S.No.5622 of 1985 was paying a monthly rental of Rs.25/-. It is the
case of the plaintiff that from the year 1981, the defendants are in
default of payment of rents. A lawyer's notice dated 17.09.1985 was
issued to the defendant in O.S.No.10 of 1987 and notice dated
12.03.1985 was issued to the defendant in O.S.No.5622 of 1985
calling upon them to pay the rent. However, despite receipt of the
same, the defendants had not come forward to clear the arrears.
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S.A.Nos.2281 of 2003 and 197 of 2007
Thereafter, notice dated 02.07.1986 to the defendant in O.S.No.10 of
1987 and notice dated 13.03.1985 in respect of the defendant in
O.S.No.5622 of 1985 was issued by the plaintiff terminating the
tenancy and directing the defendants to quit and deliver the vacant
possession of the property. Despite this, the defendants have not
complied with the request. Therefore, the plaintiff has come forward
with the respective suits for the reliefs stated supra.
5. The defense of the defendants in both the suits were
identical. They had denied the landlord-tenant relationship between
the plaintiff and themselves. It is their contention that they and prior
to them, their predecessors-in-title have been in continuous possession
and enjoyment of the property. The Trust has never been in
possession of the same and neither have the defendants paid any rents
to the plaintiff. The superstructure of the suit property has been put up
only by the defendants and not by the plaintiff. They further stated
that there was no cause of action for filing the suit and the defendants
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S.A.Nos.2281 of 2003 and 197 of 2007
have been in possession and enjoyment of the property much before
the purchase by the plaintiff. As an alternative plea, the defendants
had pleaded an adverse possession. Therefore, they sought for
dismissal of the suits.
6. The I Assistant Judge, City Civil Court, Chennai had
framed the following issues: (O.S.No.5622 of 1985)
a) Whether the plaintiff is entitled for recovery
of possession of the suit property?
b) Whether is plaintiff is entitled for arrears
of rent?
7. In O.S.No.10 of 1987, the following issues were framed:
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S.A.Nos.2281 of 2003 and 197 of 2007
(3) tHf;fpwF
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Ultimately, the trial Court dismissed both the suits holding that the
plaintiff had not been able to prove the tenancy between them and the
defendants and that the defendants have been in possession and
enjoyment of the property for over so many years. The learned trial
Judge has held that the suits as filed are not maintainable. Aggrieved
over the respective decrees, the appellant had filed first appeals before
the VI Assistant Judge, City Civil Court and VII Assistant Judge, City
Civil Court, Chennai in A.S.No.127 of 1998 and A.S.No.225 of 1989
respectively. The lower appellate Court has also concurred with the
judgments and decrees of the trial Court and dismissed the appeals.
The appellate Court had also held that the plaintiff had not proved
their title to the suit schedule property and no documents have been
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S.A.Nos.2281 of 2003 and 197 of 2007
filed to prove the same. Challenging the same, the plaintiff is before
this Court.
8. In A.S.No.225 of 1989, the plaintiff had filed additional
documents, which have been marked as Exs.A4 to A11 and the
defendants had filed Exs.B1 to B7, which were the property tax
receipts form the year 1967 onwards. Aggrieved by the concurrent
judgments and decrees of the lower appellate Court, the plaintiff has
filed the above second appeals, which have been admitted on the
following substantial questions of law:
S.A.No.2281 of 2003:
i. Whether the Courts below are right in
holding despite in the absence of any tangible
record in support of the contention of the
respondent that he has perfected his title by
adverse possession to hold that the appellant
has not proved his title, right and entitlement
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S.A.Nos.2281 of 2003 and 197 of 2007
to maintain the suit?
S.A.No.197 of 2007:
a) Whether Courts below are correct in
dismissing the suit after having found that the
plaintiff established its title over the suit land by
producing the documents Exs.A5,6,10 and 11?.
b) Whether Courts below are correct in
holding that the defendant established adverse
possession without considering truth that the
defendant and his predecessor's claimed
ownership over the suit land and in such
circumstances the defendant cannot claim adverse
possession?
c) Whether the defendant is entitled to
claim ownership as well as the adverse possession
over the suit land simultaneously?
9. After arguments had been submitted by both the learned
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S.A.Nos.2281 of 2003 and 197 of 2007
counsels, the learned counsel for the plaintiff sought time to produce
certain documents with the requisite petitions. Thereafter, the
appellant has filed C.M.P.Nos.1779 and 1783 of 2023 for receiving
documents, which included the scheme decree and lease agreements
entered into with different parties in respect of property in the same
vicinity of the suit property and also permanent land register extracts
in respect of the suit survey number.
10. Heard the learned counsels on the CMPs and second
appeals.
11. The lease deeds and the permanent land register extract
are all subsequent to the filing of the second appeals itself. The
plaintiff has not given any explanation as to why they have not filed
the scheme decree before the Courts below, particularly, when the
defendants had denied the title of the plaintiff to the suit property.
The filing of additional documents is not a matter of routine or a
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S.A.Nos.2281 of 2003 and 197 of 2007
matter of right and can be entertained only if it complies with the
requirements of Order 41 Rule 27 CPC.
12. Order 41 Rule 27 C.P.C clearly provides that the party to
an appeal cannot produce additional evidence both documentary or
oral except where the Court below from which the appeal has been
preferred has refused to admit evidence which ought to have been
admitted, or where the parties seeking to produce additional evidence
to establish before the Court, that despite they exercising due
diligence, they were not in a position to procure the documents. The
instant case does not fall within the above parameters. That apart, the
scheme decree was already filed in A.S.No.225 of 1989, and there is
no necessity to once again produce before this Court. Therefore, in
the light of the above, C.M.P.Nos.1779 and 1783 of 2023 are
dismissed.
13. The plaintiff has come to Court with a case that up to the
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S.A.Nos.2281 of 2003 and 197 of 2007
year 1981, the defendant in the suits had been paying the monthly
rents and it is from the year 1981, the default has started. They have
also stated that the defendants are the tenants under them. To prove
the above, no documents whatsoever have been filed by the plaintiff.
That apart, challenging the judgment and decree in A.S.No.225 of
1989, the plaintiff had filed a Second Appeal before this Court in
S.A.No.254 of 1981 and the said appeal was allowed by a judgment
and decree dated 27.08.2002 and the matter was remitted back to the
lower appellate Court for enabling the appellant to produce the
documents to establish their title to the property as well as to prove the
tenancy. Despite this specific judgment, the plaintiff has not produced
any documents to prove the same. On the contrary, the defendant in
O.S.No.10 of 1987 has produced the house tax receipts starting from
the year 1977. Likewise, after remand, the defendant in the suit
O.S.No.5622 of 1985 has filed house tax receipts from the year 1967.
The scheme decree produced on the side of the plaintiff does not prove
that the suit property is a part of item No.3 of the suit properties
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S.A.Nos.2281 of 2003 and 197 of 2007
scheduled in the scheme decree. In fact, the Door Number shown in
the Collector's certificate in O.S.No.10 of 1987 and in the suit property
in O.S.No.5622 of 1985 is totally different. The plaintiff, who has
come to the Court pleading a case, is bound to prove his case and he
cannot rely upon weakness of the defense. The contention of the
appellant's counsel that by pleading adverse possession, the defendant
has set up an inconsistent plea cannot be countenanced, since the plea
of adverse possession has been taken only as an alternative plea. The
Hon'ble Supreme Court in the judgment reported in 2009 (13) SCC
229 [L.N.Aswathama and Another Vs.P.Prakash], while considering
a similar defense where a person, who claims title under the document
also alternatively contends that he has perfected title, had held that
such a defense cannot be taken as an inconsistent plea, but should be
considered only as an alternative plea, which is available to the
defendant. In the instant case, the plaintiff, who claims to be the
owner of the property even under the scheme decree of the year 1954,
has not been able to establish the fact that the defendants are tenants
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S.A.Nos.2281 of 2003 and 197 of 2007
under them. I therefore see no reason to interfere with the well
considered judgments and decrees of the Courts below, which has
been passed, after considering the evidence in detail. Consequently,
the substantial questions of law are answered against the plaintiff and
the second appeals are dismissed confirming the decrees of the Courts
below. No costs. Consequently, C.M.P.No.1779 and 1783 of 2023
are dismissed.
02.02.2023
srn
To
1. The VI Additional Judge, City Civil Court, Madras
2. The VII Additional Judge, City Civil Court, Madras
3. The Section Officer, V.R.Section, High Court, Madras
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S.A.Nos.2281 of 2003 and 197 of 2007
P.T.ASHA.J.,
srn
S.A.No.2281 of 2003 and 197 of 2007
and
C.M.P.No.1779 and 1783 of 2023
02.02.2023
https://www.mhc.tn.gov.in/judis
