Madras High Court
V.M.C.Sivashanmuganathan vs Dhanalakshmi on 23 November, 2023
S.A.No.298 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.298 of 2017
and
CMP.No.7077 of 2017
V.M.C.Sivashanmuganathan ... Appellant
Vs.
1.Dhanalakshmi
2.Murugaiyan
3.Jeevanantam
4.Rajkumar
5.Saminathan
6.Balu
7.Mohan
8.Rani ... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 14.03.2016 in A.S.No.1 of
2013 on the file of the learned District Judge, Karaikal, confirming the
judgment and decree dated 28.11.2011 in OS.No.21 of 2002 on the file of the
learned Principal District Munsif, Karaikal.
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1/8
S.A.No.298 of 2017
For Appellant : Mr.R.Sunil Kumar
For Respondents : Ms.A.Dipthi Munnoth
for Mr.K.V.Babu for R1 to R8
JUDGMENT
The unsuccessful plaintiff in the suit for recovery of possession is
the appellant. He filed a suit seeking for recovery of possession based on
landlord and tenant relationship. The suit was dismissed by the trial Court and
aggrieved by the same, he filed an appeal, which was also dismissed by the
first Appellate Court. Challenging the concurrent findings against him, the
plaintiff has come up with this Second Appeal.
2. According to the appellant/plaintiff, the suit property was
allotted to his share in a family partition dated 03.01.1970. The first defendant
Dhamodharan Raja was inducted by him as a tenant of the suit property under
oral lease arrangement. It was pleaded that the original rent was Rs.20/- per
month and the same was subsequently enhanced to Rs.50/- per month. The
first defendant failed to pay rent from January 2000 and hence, notice was
issued to him on 12.10.2000 terminating the tenancy by 31st October 2000. He
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was called upon to vacate the premises and hand over the possession by 1st
November 2000. In spite of service of notice, the first defendant in the suit
failed to vacate the premises and hence, the appellant was constrained to file a
suit for recovery of possession based on the jural relationship of landlord and
tenant. Pending suit, the first defendant died and his legal representatives were
recorded as defendants 2 to 9.
3. The legal representatives of the deceased first defendant filed a
written statement denying the jural relationship of landlord and tenant between
the appellant and the deceased first defendant. The respondents/defendants 2
to 9 also had taken a plea that the suit property was sold by the plaintiff to
third party and hence, he had no title over the suit property on the date of
filing of the suit.
4. Before the trial Court, the appellant was examined as PW1 and
his power agent was examined as PW2. Five documents were marked on
behalf of the appellant as Ex.A1 to Ex.A5. The third defendant and 8 th
defendant were examined as DW1 and DW2. Two other witnesses were
examined as DW3 and DW4. On behalf of the respondents, 3 documents were
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marked as Ex.B1 to Ex.B3.
5. The trial Court on appreciation of oral and documentary
evidence available on record, came to the conclusion that the
appellant/plaintiff failed to establish oral tenancy as pleaded by him and
consequently, dismissed the suit. Aggrieved by the same, the appellant
preferred an appeal in A.S.No.1 of 2013 on the file of the District Judge,
Karaikal. The first Appellate Court also concurred with the findings of the trial
Court. Hence, the appellant has come up with this Second Appeal.
6. At the time of admission, this Court formulated the following
substantial questions of law:
“1.Whether the Courts below did not err in
overlooking the presumption of valid execution attached to
the partition deed of the year 1970 an ancient document as
per Section 90 of Evidence Act and misdirected itself by
dismissing the suit?
2. Whether the Courts below did not err in
holding that the suit filed by giving four boundaries without
measurement is fatal inspite of the finding of this Hon'ble
Court and Supreme Court that boundaries will prevail over
extent?”
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7. The learned counsel for the appellant submitted that the
properties covered under Ex.B1 and Ex.B2 relied on by the respondents are
not the suit properties and the properties covered by those documents are
properties of his brother Sivabalan. Therefore, the findings rendered by the
Courts below as if the appellant failed to prove his title is vitiated by the non-
consideration of evidence available on record in proper prospective.
8. The appellant has filed the suit for recovery of possession
based on the landlord and tenant relationship. The suit was not laid by the
appellant based on his title. It is seen from the averment and also valuation
adopted by the appellant in his plaint that the suit was laid only based on the
landlord and tenant relationship. The appellant has not paid Court fee on the
market value of the suit property while filing the suit and the plaint has been
valued based on the annual rental value of the property. Hence, it can be
safely concluded that suit has been laid for ejectment based on jural
relationship of landlord-tenant.
9. In such circumstances, in the suit for recovery of possession
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based on the landlord and tenant relationship, the Court need not go to the
question of title. Therefore, this Court need not consider the documents
marked by the respondents as Ex.B1 and Ex.B2 and decide whether the suit
property was sold by the appellant to the third party or not under the said
documents. When the appellant laid the suit based on the jural relationship
between the landlord and tenant he need not prove his title over the suit
property. Therefore, this Court is not inclined to consider the submission of the
learned counsel for the appellant that the findings rendered by the first
Appellate Court as if he failed to prove his title is erroneous. Being a suit for
ejectment based on the jural relationship of the landlord and the tenant the
burden is on the appellant to prove the jural relationship of landlord and
tenant.
10. In the case on hand, in order to prove the jural relationship,
the appellant was examined as PW1 and his power agent was examined as
PW2. The Courts below rejected the oral evidence of PW1 & PW2 as
interested testimony. For the reasons best known to him, the appellant failed to
examine any independent witness like neighbours to prove the alleged oral
tenancy pleaded by him. The Courts below based on proper appreciation of
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evidence available on record came to the conclusion that the appellant failed
to establish the jural relationship between the landlord and the tenant. In such
circumstances, the suit for ejectment filed by the appellant based on the jural
relationship is liable to be dismissed.
11. In view of the discussions made earlier, both the substantial
questions of law framed at the time of admission are answered against the
appellant and the Second Appeal stands dismissed. The dismissal of the
present suit filed by the appellant will not prevent him from filing a fresh suit
for recovery of possession based on his title.
12. a) In the result, the Second Appeal stands dismissed by
confirming the judgment and decree passed by the Courts below.
b) In the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
23.11.2023
Index : Yes
Internet : Yes
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Neutral Citation Case : Yes
dna
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S.SOUNTHAR, J.
dna
To
1.The District Court, Karaikal
2.The Principal District Munsif, Karaikal.
and
23.11.2023
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