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Judgment
A. Kulasekaran, J.—The second defendant in the suit is the appellant herein. The first respondent herein has filed the suit O.S. No. 2043 of
1982 against the appellant and respondents 2 to 5 herein. The trial court decreed the suit and the appeal preferred by the appellant herein was
dismissed by the first appellate Court, hence the present second appeal.
At the time of admission, the following substantial questions of law are framed for consideration in this second appeal.
i) Whether the Courts below are right in holding that the legal heirs of the deceased second defendant in the suit are not necessary parties, while
holding the second defendant as the tenant under the 1st respondent/Plaintiff.
ii) Whether the courts below erred in Law in not holding that the suit stands abated for not bringing the legal representatives of the deceased
second defendant in the suit, who according to the 1st respondent/plaintiff is the tenant?
iii) Whether the courts below erred in law in not applying the doctrine of acquiescence when the appellant paid rent from 13-11-1974 and thereby
holding that the appellant has become a tenant under the 1st respondent?
iv) Whether the courts below are right in giving a finding that the rent is Rs.330/- per month when the reasonable rent is only the existing rent of
Rs.230/- per month?
The case of the Plaintiff/first respondent herein is as follows:-
The Plaintiff is the owner of the suit property and the first defendant is a lessee in respect of the suit property from 01-01-1975 for a monthly rent
of Rs.210/-. On 09-04-1975, the Plaintiff and first defendant entered into a lease agreement for a monthly rent of Rs.210/-. The rent was
enhanced to Rs.330/- from 01-05-1977 which was also agreed by the first defendant. Contrary to the agreement, the first defendant has sublet the
premises to Defendants 2 to 5. Due to misunderstanding, the first defendant gave complaint against the defendants 2 to 5 and then only the Plaintiff
came to know the sublet and they have terminated the lease agreement on 05-06-1982. According to the Plaintiff, if there is any agreement
between the first defendant and defendants 2 to 5 in respect of the property it would not bind them. As on 31-08-1981 the first defendant is liable
to pay a sum of Rs.7,370/- towards rent, hence the suit.
The case of the appellant is as follows:-
The appellant''s father took the vacant land of the suit property on lease and constructed the shop building thereon. Plaintiff Devasthanam had
taken a decision not to let out its properties to other religious persons; that the suit property was leased out in the name of the first defendant as
requested by appellant''s father. The letter dated 13-11-1974 of the first defendant would prove it. The defendants 3 to 5 are partners of
appellant''s father. The rent for the demised premises was Rs.210/- and rent was paid for the entire period without any default. The suit ought to
have been dismissed by the courts below for non-joinder of legal representatives of the first defendant and other representatives of appellant''s
father T.S. Abdul Jabbar. After the death of appellant''s father, the appellant and his brother have been carrying on the business with the
knowledge of the Devasthanam.
Before the trial court, the Plaintiff has examined one Subramaniam as PW1 and marked Exs. A1 to A11. The 2nd Defendant/appellant herein
has examined himself as DW1 and marked Exs. B1 to B63. Before the trial court, the defendants 3 to 5 were set exparte and the second
defendant alone contested the suit.
The learned counsel appearing for the appellant submitted that the courts below erred in shifting the burden on the appellant to prove the
quantum of rent at Rs.330/- per month; that the courts below have not taken into account that PW1 is not aware of anything as such he is not
competent to speak about the case. The courts below failed to consider Exs. A1 and A7, B1 and B2 in proper perspective; that the courts below
have erroneously construed that the appellant was a sub-lessee; that the Courts below erred in proceeding the suit without impleading the legal
representatives of the first defendant; that the courts below erred in holding that the appellant is a sub-tenant, though the rent has been paid by him
all along and prayed for allowing of the second appeal.
The learned counsel appearing for the first respondent submitted as follows:-
The first defendant was a tenant under them for a monthly rent of Rs.330/-. He has committed wilful default in payment of rent, hence suit was filed
for recovery of possession, arrears of rent and for damages. The first defendant died pending suit, except appellant herein others were set ex-
parte. The first respondent has proved that the first defendant was a tenant and the other defendants were sub-tenants. The letter dated 13-11-
1974 said to have written by the appellant is not related to the suit property. The first appellate Court while confirming the Decree and Judgment of
the trial court has rightly dismissed the Interlocutory Applications for additional evidence and impleading petition and prayed for dismissal of the
second appeal.
The Courts below held that originally Anayappa Gounder was the tenant under the plaintiff in the suit property, who is the first defendant in the
suit; that the first defendant died during the pendency of the suit after filing his written statement in the suit; that the defendants 2 to 5 have admitted
that they are in possession of the suit property, hence all the legal representatives of the first defendant are not necessary parties since the suit
proceedings are not under Rent Control Act, but instituted for recovery of possession, arrears of rent and for damages and the plaintiff also
established that they are entitled to the said reliefs; that the first defendant admitted in Ex. A1 that he entrusted the shops to T.A. Salam and T.A.
Rahim due to his illness, but they committed default; that the appellant herein has sent Ex.A6 advocate notice and admitted that the tenant was first
respondent, however his father was in possession of the shop. Later, defendants 3 to 5 became partners and after his father''s death he and his
brother were carrying on the business along with defendants 3 to 5; that the rental receipts issued by the plaintiff only in the name of first defendant
and not in the name of defendants 2 to 5; that the quantum of rent mentioned in the suit notice is Rs.330/- per month and found that the plaintiff is
entitled to the reliefs.
u/s 100 CPC, re-appreciation of evidence in second appeal is not permissible unless the judgment under the appeal is perverse or based upon
evidence admittedly illegal or finding is without evidence or there has been wrong construction of documents. If the findings of the courts below are
based on appreciation of evidence it cannot be interfered with in the second appeal.
u/s 100 CPC, High Court is not empowered to interfere with the findings of facts in second appeal on the ground of its being erroneous unless
there is a substantial error or defect in the procedure prescribed by Law. High Court cannot interfere with the conclusions of fact recorded by the
lower appellate Court, however erroneous, but it can interfere with on the ground of existence of legal error.
A concurrent findings of fact is not assailable in second appeal. In this case, the concurrent findings made by the courts below are based on
adequacy of evidence. The findings that the first defendant was a tenant, quantum of rent was Rs.330/- and the dismissal of interim applications for
impleading and for additional evidence and the plaintiff is entitled to the relief sought for are on proper consideration of material evidence, hence no
interference of this Court is warranted.
In the substantial question of law 1 and 2, the appellant has wrongly mentioned '' deceased second defendant'' instead of deceased second
respondent. Now, I proceed to consider the said two questions of law. The suit is for recovery of possession, arrears of rent and damages. Except
the deceased first defendant, the other defendants found to be in possession. When the plaintiff has established that he is entitled to recover
possession from the defendants 2 to 5, who are in wrongful occupation, the Court can pass a decree against the defendants 2 to 5, who are really
in occupation even in the absence of the first defendant''s legal representatives since they are admittedly not in occupation. The appellant has not
canvassed either before me or before the courts below that by fraud or collusion between the plaintiff and first defendant''s legal representatives the
suit has been prosecuted or trial has been conducted. Legal representatives brought on record under Order 22 will have the same right as that of
the deceased in whose place he or she come on record. Under Order 22 Rule 2 CPC where the defendants are jointly and severally liable to the
plaintiff and one of them died, his legal representatives need not be brought on record. Particularly, in this case, the first defendant himself admitted
in the written statement that possession of the suit property was only with the defendants 2 to 5. It is also the case of the appellant and the
defendants 3 to 5 that they are in continuous possession of the suit property nevertheless the attornment of tenancy in favour of the deceased first
defendant as such the Decree can be passed against the appellant and the defendants 3 to 5. Hence, I am of the view that non-impleadment of
legal heirs of the deceased first defendant is not fatal to the case and I answer the first two substantial questions of law against the appellant herein.
The rents relating to the suit property were made by defendants 2 to 5 in the name of the deceased first defendant, hence the doctrine of
Acquiescence is not applicable and 3rd substantial question of law is also answered against the appellant.
The 4th substantial question of law is relating to the disputed quantum of rent at Rs.330/- which is only a question of fact and the courts below
have concurrently answered the said issue against the appellant herein as such the same need not be re-apprised in the second appeal.
In view of the same, the second appeal fails, liable to be dismissed and accordingly dismissed. No costs.