Madras High Court
P.Sakthivel vs / on 7 January, 2025
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.434 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.01.2025
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.434 of 2012
P.Sakthivel ... Appellant
/Vs./
1.R.Jegannathan
2.Narayanan
3.R.Mamundi
4.Pandi ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgment and Decree dated 06.07.2011, made in A.S.No.97 of 2008 on
the file of the Sub Court, Dindigul, confirming the Judgment and Decree, dated
22.12.2006, made in O.S.No.976 of 2004 on the file of the Principal District
Munsif Court, Dindigul.
For Appellant : Mr.S.Vijayashanthi
For Respondents : Mr.H.Lakshmi Shankar
*****
JUDGMENT
The present second appeal is preferred by the defendant in the suit against
the judgment and decree dated 06.07.2011, passed in A.S.No.97 of 2008 on the
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file of the Sub Court, Dindigul, confirming the judgment and decree, dated
22.12.2006, passed in O.S.No.976 of 2004 on the file of the Principal District
Munsif Court, Dindigul.
2. The defendant in the suit is the appellant herein and the plaintiffs in the
suit are the respondents herein. For the sake of convenience, the parties are
referred as plaintiffs and defendant as per the ranking in the suit.
3. The suit is filed for eviction of the defendant and recovery of vacant
possession of the suit property and for the recovery of rent arrears of Rs.27,000/-
to be paid by the defendant to the plaintiffs.
4. The brief facts as stated in the plaint are that the suit property situated in
S.No.171/2 and other properties originally belonged to the family Trust of
Narayanasamy Pillai. It was administered by the eldest legal heir, as such the
plaintiffs' father Ramakrishanan was managing the properties and collecting the
rent. As per the rental agreement between Ramakrishnan and the defendant a
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monthly rent of Rs.650/- was agreed to be paid from 10.04.1994 for three years
and the defendant paid advance amount of Rs.30,000/- and the same is payable
without interest at the time of vacating the property. Further it was also agreed
that if Ramakrishnan became ill or unable to collect the rent, the plaintiffs trust
would be entitled to collect the rents. Furthermore, as per the Narayanasamy
Family Trust, the right to collect the rents devolve upon the male legal heirs of
Narayanasamy Pillai. On 15.03.1998, the plaintiffs' father Ramakrishnan died.
The rental agreement between Ramakrishnan and the defendant expired on
09.04.1997. the deceased Ramakrishnan had sons namely Jagannathan and
Narayanan, Mamundi, Pandi (the plaintiffs). The other brothers Narayanan,
Mamundi and Pandi had executed a power of attorney deed, dated 08.06.1998, to
collect the rent in favour of the plaintiff Trust. After the demise of Ramakrishnan,
on 01.03.1998, the 1st plaintiff Jagannathan had been demanding the rent from the
defendant and the defendant agreed to pay the rent at Rs.1,000/- from March
1998, but failed to pay the rent at Rs.1,000/-. Thus, from 01.03.1998 to January
2000, the defendant failed to pay the rent for 23 months at the rate of rent Rs.
1,000/- per month. Hence, the plaintiffs issued a legal notice to the defendant. As
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the plaintiffs' grand parents' cemetery are lying adjacent to the suit property, the
suit property is required by the plaintiffs for developing the cemetery. In spite of
the legal notice, the defendant neither paid the rent arrears nor vacated the suit
property, therefore the plaintiffs are entitled for future mesne profits also. Hence,
the plaintiffs had preferred the suit for eviction and mesne profits.
5. The defendant had filed written statement wherein he had denied all the
allegations stated in the plaint, further stated the plaintiffs are not entitled to the
relief sought for, the suit is not maintainable either in law or on facts and liable to
be dismissed in limine. On 20.03.1993 the defendant had taken the property
situated in S.No.171/2 having calicut tiled house measuring north south 20 east
west 35 feet, within the vacant land to an extent of north south 103 feet and east
west 35 feet for rent from late Ramakrishnan to run automobile workshop. The
suit property was unlevelled and the defendant had levelled the land and raised
the compound wall by spending a sum of Rs.50,000/-. Hence, the averment only
with door number and Madras terraced house is bald description. The defendant
has paid a sum of Rs.40,000/- towards advance and the monthly rent is fixed at
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Rs.625/-. The defendant continued the tenancy with advance amount of Rs.
30,000/- and monthly rent of Rs.1,000/- per month from 11.10.1996 onwards. In
the meanwhile, Ramakrishnan died. Hence, the plaintiffs tried to evict the
defendant forcefully and unlawfully by disconnecting the electricity service
connection, hence the defendant has obtained temporary injunction in O.S.No.797
of 1999. Subsequently, the plaintiffs with some local respectable persons
approached the defendant and pressurised the defendant to vacate the property
saying that they are going to lease the property to Pitchai and also stated that the
said Pitchai had agreed to return the advance amount together with expenses
incurred by the defendant in developing the property totalling to a tune of Rs.
80,000/- to the defendant and agreed to adjust the rent arrears in the advance
amount. Hence, the defendant handed over the possession of the property of the
said Pitchai on a rent transfer agreement, dated 10.12.2000. Hence, O.S.No.797 of
1999 was left for dismissal. Subsequent to that, the suit property to an extent of
3605 square feet of vacant site and the tiled shed is under the possession and
enjoyment of the said Pitchai. The plaintiffs having suppressed the above said true
facts, have filed this false suit. Hence, it is liable to be dismissed. It is understood
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that the plaintiffs had received rent from the above said Pitchai and hence the
plaintiffs are not entitled for the rent arrears of Rs.39,000/-. And the defendant
prayed to dismiss the suit.
6. Considering all the averments in the plaint and the written statement, the
Trial Court has framed the following issues:
1. Whether the plaintiffs are entitled for the recovery of possession as
prayed for?
2. Whether the defendant is liable to pay the rent arrears as prayed in
the plaint to the plaintiffs?
3. Whether the suit rented property is not in the defendant's tenancy
possession?
4. Whether the defendant has entered into a tenancy alteration
agreement on 10.12.2000 with one Pitchai and whether it is
maintainable?
5. To what other relief?
7. On the side of the plaintiffs, the 1st plaintiff has examined himself as
PW1 and the plaintiffs have marked Exhibits A1 and A2. On the side of the
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defendant, the defendant examined himself as DW1 and one independent witness
viz., Kandasamy as DW2 and the defendant has marked Exhibits B1 and B2. After
considering the pleadings, documents and evidences, the Trial Court decreed the
suit with costs directing the defendant to vacate the suit property and handover the
same to the plaintiffs within two months from the date of the judgment and also
directed the defendant to pay a sum of Rs.27,000/- towards the rent arrears to the
plaintiffs. Aggrieved over the same, the defendant preferred an Appeal Suit and
the same was dismissed. Aggrieved over the same, the defendant has preferred the
present second appeal.
8. The second appeal was admitted on the following substantial questions of
law:
“(1) Whether the Courts below right in decreeing the suit for recovery of
possession of suit property from the defendant when the defendant is not in
possession of the suit property and the same was admitted by the plaintiffs
also?
(2) Whether the Courts below right in decreeing the suit, when the
necessary party, the actual possessor was not added to the suit proceedings
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and when the suit itself is not maintainable for non-joinder of necessary
parties?
(3) Whether the Courts below right in decreeing the suit by picking up
holes in the defendant’s case, when the plaintiffs failed to prove their case
as the suit property was the family trust property and the plaintiffs and the
authorized person to sue for the trust property by way of material
documents?”
9. The defendant had admitted that initially the defendant was the tenant
from 20.03.1993 for a rent of Rs.625/- with an advance of Rs.40,000/- for a period
of three years. Thereafter the tenancy was extended from 11.10.1996 onwards by
increasing the rent of Rs.1000/- with advance amount of Rs.30,000/-. Thereafter,
the legal representative of the Trust namely Ramakrishnan died on 01.03.1998,
from this date onwards the trouble stated between the landlord and tenant.
10. The tenant is denying the title of the Trust and had stated that the said
Ramakrishnan is the owner of the property. But the contention of the plaintiffs is
that the said Ramakrishnan is representing the family trust started by
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Ramakrishnan’s father namely Narayanasamy Pillai. Be that as it may be, whether
the property belongs to the family trust or belongs to the Ramakrishnan is the
issue ought to be decided by the trust and others who are interested in the
property. But the tenant cannot take shelter under such dispute between the
trustees and the family of Ramakrishnan. Hence the defendant is liable to be
evicted once the landlord demands to vacate. Further it is seen that the defendant
had defaulted in paying the rents and hence the tenant is liable to be evicted from
the premises. Therefore the 3rd substantial question of law is answered and the
same is held against the defendant.
11. The next contention of the defendant is that the defendant is not in
possession of the property and the plaintiffs had inducted one Pitchai in the suit
property by executing another lease agreement dated 10.12.2000 which was
executed between the plaintiffs and Pitchai. Further the defendant has pleaded that
the subsequent tenant Pitchai was not impleaded as party and hence the suit is bad
for non-joinder of the said Pitchai who is a necessary party. But the same is denied
by the plaintiffs and submitted that they never inducted the said Pitchai as tenant,
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it is only the defendant who had sublet the premises to the said Pitchai and the
said act is against the rental agreement and also against the law of lease.
12. After hearing the rival submission this Court had given its anxious
consideration. It is seen that the said Ramakrishnan died on 15.03.1998.
Thereafter the defendant failed to pay the rent by raising the plea of ownership.
Hence the plaintiffs had directed the defendant to vacate the premises. In order to
pre-empt the rights of the plaintiffs, the defendant had filed the suit in O.S.No.797
of 1999 for injunction restraining the plaintiffs from forcefully evicting the
defendant. Thereafter the plaintiffs had issued legal notice dated 26.02.2000
marked as Ex.A1, requesting the defendant to vacate the premises, otherwise the
defendant would be evicted by due process of law. After receipt of the said notice
the defendant had left the said suit and the same was dismissed for non-
prosecution.
13. The defendant had stated in the written statement that the said Pitchai
had agreed to pay the advance amount and the expenses the defendant had
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incurred, hence the defendant had executed the tenancy transfer agreement dated
10.12.2000 to the said Pitchai. If the defendant is intended to vacate the premises
by taking back the advance or adjusted the balance rent and would have straight
away vacated the premises. When the defendant had executed the tenancy transfer
agreement, it would mean that the said Pitchai was inducted by the defendant.
Further it is stated that pending second appeal the said Pitchai had vacated the
premises and again the defendant had sublet the premises to another person
namely Palpandi. Therefore, this Court is of the considered opinion that the said
Pitchai and Palpandi are sub lessee under the defendant and it is not necessary to
implead them as parties. Hence the plea of non-joinder of necessary parties is
rejected. The 2nd substantial question of law is answered against the defendant.
14. Having held so, then the defendant is responsible to hand over vacant
possession. Therefore, the 1st substantial question of law also held against the
defendant.
15. At this juncture the learned Counsel appearing for the defendant /
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appellant submitted that the defendant may be absolved of the rental arrears and
the advance amount may be adjusted for the arrears of rent. It is seen that the
defendant had not paid the rent from 01.03.1998 onwards until 10.12.2000, the
date Pitchai was inducted as tenant. The Trial Court had rendered a finding that
the defendant had claimed he had paid Rs.40,000/- as initial advance and
subsequently an additional amount of Rs.30,000/- paid as advance, but while
deposing the defendant had admitted that the defendant had paid only Rs.40,000/-
as advance. Therefore, Rs.40,000/- is the advance amount and the same shall be
adjusted for the rental arrears. If there is any balance amount payable, then the
defendant shall pay the same.
16. As far as the balance rental arrears is concerned, for the period from
10.12.2000 onwards till the date of vacating the premises, the same shall be paid
jointly by the defendant Sakthivel, the sub-lessees Pitchai and Palpandi. The
defendant is permitted to collect the said arrears of rent from the said Pitchai and
the Palpandi and pay the same to the plaintiffs or else the defendant Sakthivel
shall pay the arrears and then collect it from the sub-lessees.
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17. The defendant Sakthivel, the said Pitchai and the said Palpandi are
directed to vacate the premises forthwith. For sub-letting the premises, this Court
is imposing cost of Rs.1,000/- on the defendant payable to the plaintiffs.
18. With the above said directions, the second appeal is dismissed with cost
of Rs.1,000/- payable by the appellant herein to the respondents herein.
07.01.2025
Index : Yes / No
NCC : Yes / No
Tmg
TO:
1. Sub Court, Dindigul.
2. Principal District Munsif Court, Dindigul.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
07.01.2025
https://www.mhc.tn.gov.in/judis
