Dr. O. Rajaram vs Dindigul Town Sourashtra Mahajana Sabha and Others

S. Rajeswaran, J.—The second defendant in O.S. No. 900 of 1992 on the file of the First Additional District Munsif Court, Dindigul is the

appellant before this Court. He is aggrieved by the judgment dated 12-04-2007 passed by the First Appellate Court confirming the judgment of

the trial Court in O.S. No. 900 of 1992.

The facts which are necessary for the purpose of disposing off the appeal are as under:

The first respondent herein, as the plaintiff, filed O.S. No. 900 of 1992 against one S.P. Baradhan and the appellant herein who is the second

defendant in the suit. Pending suit, the first defendant passed away and therefore, defendants 3 to 8 were brought on record in the place of the first

defendant as his legal heirs.

For the sake of convenience, the parties are referred to as per their rankings in the suit.

According to the plaintiff, the suit schdule property was owned by the plaintiff Sabha and the same was let out to the first defendant for his fruit

business. As the Sabah wanted the suit schedule property for its use and occupation, the plaintiff asked defendants 1 and 2 in the suit to vacate the

premises and finally on 05-04-1986, the plaintiff sent a notice asking them to vacate the suit schedule property and hand over the vacant

possession. Thereafter, the plaintiff Sabha filed an Eviction Petition in H.R.C.O.P. No. 45 of 1986 before the Rent Controller, Dindigul. The

defendants 1 and 2 took a stand before the Rent Controller that as the plaintiff is a Sabah holding the property for the benefit of the Society, it

could not maintain the Eviction Petition before the Rent Controller and they should only approach the Civil Court. The Rent Controller accepted

the stand of the defendants 1 and 2 and dismissed the RCOP on 14-01-1992 on the ground that the same was not maintainable under the Rent

Control Act.

Thereafter, the plaintiff sent another notice dated 12-03-1992, terminating the tenancy and demanding vacant possession of the property. The

first defendant sent a reply containing false allegations and the second defendant did not choose to send any reply.

Hence, the plaintiff filed O.S. No. 900 of 1992 for recovery of possession and for other consequent reliefs. The first defendant and his legal

heirs did not choose to contest the suit. The second defendant filed a Written Statement stating that he was a Doctor by profession and he was

running a clinic in the suit schedule property after getting the consent of both the plaintiff as well as the first defendant. Therefore, according to the

second defendant, he replaced the first defendant as tenant and that too with the consent of the plaintiff. According to the second defendant, as the

plaintiff demanded exorbitant rent, he refused to give the same and that was the cause for filing the suit by the plaintiff.

Before the trial Court, one witness was examined as PW.1 on behalf of the plaintiff and Exs.A1 to A8 were marked. Similarly, the second

defendant was examined as DW.1 and Exs.B1 to B6 were marked on the side of the second defendant. The trial Court framed the following three

issues namely:

1) Whether the second defendant is the sub-tenant of the first defendant?

2) Whether the plaintiff is entitled to get possession of the property?

3) What other reliefs?

The trial Court, after going through the deposition of DW.1 and the other documents found that the second defendant did not prove that he

became a tenant through the first defendant with the consent of the plaintiff. Consequently, the trial Court accepted the case of the plaintiff and

decreed the suit as prayed for.

Challenging the decree and judgment dated 18-04-2001, the second defendant filed A.S. No. 508 of 2004 before the Principal Sub-Court,

Dindigul.

The Appellate Court after re-appreciating the entire evidence came to the conclusion that the second defendant is not a statutory tenant and he

could at best ask for the relief of evicting him by adopting legal process only and he could not contend that the plaintiff could not be given the relief

of eviction as per the trial Court. The First Appellate Court has also adverted to the fact that neither the first defendant nor the first defendant''s

legal heirs chose to contest the suit and thus they remained ex-parte. Therefore, the First Appellate Court concurred with the trial Court and

dismissed the appeal. Against the judgment, the second defendant filed the above appeal u/s 100 CPC.

The following substantial questions of law are raised on behalf of the appellant in this Second Appeal:

1) Plaintiff being a public trust, whether the civil Court has jurisdiction to pass any decree evicting the appellant second defendant?

2) Whether the Court below is right in not following the principles enumerated u/s 108(i) of the Transfer of Property Act?

3) Whether the Court below can render judgment without materials and evidences available on record to prove the tenancy, more specifically

Ex.B2?

I have Heard the learned Counsel for the appellant and the learned Counsel for the first respondent. I have also perused the entire records and

in particular, the judgments of both the Courts below:

It is not in dispute that the plaintiff originally filed an Eviction Petition under the Rent Control Act to get the possession of the suit schedule

property and the same was dismissed by the Rent Controller on the ground that only a suit would lie and the RCOP could not be maintained.

Thereafter, O.S. No. 900 of 1992 was filed and it is an admitted fact that the first defendant and his legal heirs who were brought on record after

the death of the first defendant, did not contest the suit on merits and remained ex-parte. The trial Court from the evidence let in came to the

conclusion that the second defendant failed to establish his case that he became a tenant of the suit schedule property with the consent and

concurrence of both the plaintiff and the first defendant. When the same was canvassed before the first appellate Court, the first appellate Court,

after re-evaluating the evidence, came to the very same conclusion and thereby dismissed the appeal. If that being so, the entire matter is based on

facts and evidence and this Court in its jurisdiction u/s 100 CPC cannot re-appreciate and re-evaluate the evidence as if it was a first appeal. At

the most, this Court can only go into the findings of the first appellate Court to find out whether the same is reasonable and based on proper

evaluation of evidence adduced before it. If the findings of the first appellate Court which confirmed the judgment of the trial Court are gone into, I

am of the considered view that the factual aspect of the controversy is properly gone into by the fifrst appellate Court by re-appreciating the

evidence before concurring with the judgment of the tiral Court. Therefore, I do not find any substantial question of law that arises for consideration

in the above Second Appeal as contended by the appellant and accordingly, the second appeal is DISMISSED with costs. Consequenlty,

connected MP.No.1 of 2009 is also dismissed.