Madras High Court
Hubbalatchi Ammal vs Devaki on 12 October, 2023
S.A.No.231 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.231 of 2017
Hubbalatchi Ammal ... Appellant
vs.
Basuvaraj (since deceased)
1.Devaki
2.Sivakumar
3.Bagyalakshmi
4.Neela
5.Eashwaran ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 17.11.2016 in A.S.No.4
of 2015 on the file of District Judge and Appellate Authority of Nilgiris at
Udhagamandalam confirming the Judgment and Decree dated 21.07.2015 in
O.S.No.19 of 2009 on the file of Subordinate Judge, Udhagamandalam.
1/8
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S.A.No.231 of 2017
For Appellant : Ms.S.Meenakshi
for M/s.AL.Ganthimathi
Senior Counsel
JUDGEMENT
Aggrieved by the concurrent findings of the Courts below dismissing
the suit filed by the appellant seeking damages against the respondents for
alleged illegal demolition of house in the occupation of the appellant and
the household articles belongs to the appellant, the appellant has filed the
present second appeal.
2. According to the appellant/plaintiff, she was tenant of the
residential premises bearing Door No.27/144 B, New No.12/247 situated at
Kamarajar Square, Mount POSCO, Kotagiri Town, Nilgiris District. It is the
case of the appellant that the said house belonged to one S.M.Raju and she
became tenant under the said S.M.Raju. After death of S.M.Raju, she has
been paying rent to Neeliammal, wife of said S.M.Raju. The respondent,
who is not having any manner of right came to the house of the appellant on
12.01.2009 and demolished the entire house and damaged the household
articles of the appellant. According to the appellant, the value of the
household articles damaged by the respondent is about Rs.90,000/-. It was
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S.A.No.231 of 2017
also stated that the appellant spent a sum of Rs.60,000/- towards
reconstruction of the house demolished by the respondents. Since the
appellant suffered damages due to act of waste committed by respondents,
the above suit was filed by the appellant seeking recovery of Rs.1,50,000/-
as damages from the respondents.
3. The suit was originally filed against one Basuvaraj, under whom
respondents are claiming right. The deceased Basuvaraj filed a written
statement denying the averment of the appellant as if, she was tenant under
one S.M.Raju and his wife Neeliammal. The deceased Basuvaraj is none
other than the brother of said S.M.Raju. It was averred by the deceased
defendant that both S.M.Raju and his wife Neeliammal died long back and
his son was residing at London. The averment of the appellant as if, she was
tenant of the premises at the time of filing of the suit was specifically
denied. The deceased defendant also denied the alleged demolition and act
of waste committed by him. It was also averred in the written statement that
the appellant also preferred a police complaint and the criminal case ended
in acquittal. On these pleadings, the deceased defendant sought for
dismissal of the suit.
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S.A.No.231 of 2017
4. Before the Trial Court, the appellant was examined as PW.1 and 12
documents were marked on behalf of the appellant as Exs.A1 to A12. It
appears sole defendant Basuvaraj died pending suit. Therefore, his legal
representatives were brought on record as defendants 2 to 6. The 6th
defendant was examined as DW.1. On behalf of the respondents, 3
documents were marked as Exs.B1 to B3.
5. The Trial Court on consideration of evidence available on record,
disbelieved the case of the appellant that deceased sole defendant Basuvaraj
committed act of waste against the appellant by demolition of house and
damaged the household articles and consequently, dismissed the suit.
Aggrieved by the same, the appellant preferred first appeal in A.S.No.4 of
2015 on the file of the District Court, Udhagamandalam. The First
Appellate Court concurred with the findings of the Trial Court. Aggrieved
by the concurrent findings, the appellant is before this Court.
6. The learned counsel appearing for the appellant submitted that the
appellant produced sufficient documents before the Courts below to show
that the appellant was tenant of the house property belonged to deceased
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S.A.No.231 of 2017
S.M.Raju and the same had not been considered by the Courts below in
proper perspective. The learned counsel further submitted that the appellant
produced photographs of the demolished house to prove the act of waste
committed by deceased Basuvaraj and same had not been taken into
consideration by the Courts below.
7. In order to prove the alleged act of waste by the respondents, the
appellant failed to examine any independent witnesses. The appellant alone
was examined as PW.1. Therefore, except the interested testimony of
appellant, there is no other evidence available on record to suggest that the
deceased Basuvaraj committed act of waste against the appellant. Based on
the documents produced by the appellant before the Courts below, both the
Courts below found that appellant was tenant under S.M.Raju long back and
both Raju and his wife died even in the year 2000. The Courts below further
found that the appellant vacated the suit premises long back. Whether the
appellant resided in the suit premises on the date of filing of the suit or not
is a secondary question to be decided in this case. The main issue that has to
be decided is whether respondent's predecessor, namely deceased Basuvaraj,
by their illegal act demolished the house occupied by the appellant and
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S.A.No.231 of 2017
caused damages to the household articles of the appellant. The photographs
submitted by the appellant will not advance the case of the appellant.
8. Even assuming that the household articles of the appellant were
damaged, unless it is shown that the deceased Basuvaraj was involved in
causing damages to the household articles of the appellant, she is not
entitled to maintain a suit for recovery of damages.
9. In view of the fact that the appellant miserably failed to lead any
acceptable evidence to prove the factum of act of waste committed by
deceased Basuvaraj, both the Courts below correctly came to the conclusion
that the appellant is not entitled to recover any damages from the
respondents and accordingly, dismissed the suit.
10. In view of the discussion made above, I do not find any perversity
in the factual findings reached by both the Courts below, accordingly, the
second appeal is devoid of any question of law much less substantial
question of law and therefore, deserves dismissal.
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S.A.No.231 of 2017
In Nutshell:-
(i) The second appeal is dismissed.
(ii) In the facts and circumstances of the case, there will be no order
as to costs.
12.10.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
To
1.The District Judge and Appellate Authority,
Nilgiris at Udhagamandalam.
2.The Subordinate Judge,
Udhagamandalam.
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S.A.No.231 of 2017
S.SOUNTHAR, J.
dm
S.A.No.231 of 2017
12.10.2023
https://www.mhc.tn.gov.in/judis
