K. Sivanandam and Others vs G. Madurai Thambiran and Others

M. Duraiswamy, J.—1. A.S. No. 434/1992 arises against the judgment and decree passed in O.S. No. 294 of 1984 on the file of Sub Court, Poonamallee. The plaintiff is the appellant, respondents 2 to 7 were the defendants 2 to 7 in the suit and the respondents 8 to 11 were brought on record as the legal representatives of the deceased first respondent, who is the first defendant in the suit. The plaintiff filed the suit in O.S. No. 294 of 1984 for partition and to direct the 7th defendant to pay half of the rent to the plaintiff or direct him to deposit the entire monthly rent of Rs. 200/- to the court.

Civil Revision Petition No. 809 of 2010 arises against the judgment and decree passed in R.C.A. No. 3 of 1997 on the file of Sub Court, Poonammallee, confirming the order passed in R.C.O.P. No. 115 of 1982 on the file of District Munsif Court, Poonammallee. The revision petitioners are the landlords and the respondent is the tenant. The landlord filed R.C.O.P. No. 115 of 1982 for eviction on the ground of willful default and for causing nuisance to the other tenants.

Since the subject matter of the First Appeal and the Civil Revision Petition are one and the same, both the matters were clubbed together and disposed of by this common judgment.

The brief case of the plaintiff is as follows:--

"(i) According to the plaintiff, the suit properties are the joint family properties of his father, his brother viz., 1st defendant and himself. The suit properties were purchased by the plaintiff''s father Kannappa Thambiran and his brother viz., 1st defendant under a registered sale deed dated 22.04.1940. Plaintiff''s father was having a decent income in those days itself and in and out of his earnings, he put up construction in Survey No. 115/17. Plaintiff''s father died in the year 1942. After his death, plaintiff''s uncle viz., Madurai Thambiran completed the work. Plaintiff''s father and his brother Madurai Thambiran were the members of the Hindu Joint Family and there was no division among themselves. After the death of plaintiff''s father, plaintiff and his uncle Madurai Thambiran have been living together as members of the Hindu Joint Family and there is no proper division of the joint family properties between themselves till today. The joint family, consisting of plaintiff and his uncle Madurai Thambiran have been carrying on business in various trades. In and out of the income derived from the said businesses, they constructed a house in the year 1965-66. The land measuring an extent of 42 cents in Survey No. 112/2 was purchased out of the joint family funds and the same was leased out to Burma Shell Petrol Bunk. The 1st defendant sold the said property to the defendants 3 to 6 under a registered sale deed dated 3.6.1981 without the consent and knowledge of the plaintiff. In the month of October 1981, the 1st defendant sold the Ambassador Car belonging to the joint family for a sum of Rs. 16,500/-. The 1st defendant attempted to cut off the water supply and the electrical supply for the house. Thereafter, the plaintiff filed the suit in O.S. No. 328 of 1982 on the file of District Munsif Court, Poonamallee for mandatory injunction to restore the water supply and for permanent injunction not to cut off the electric supply. Subsequently, the 1st defendant filed a petition in R.C.O.P. No. 115 of 1982 on the file of District Munsif Court, Poonamallee to evict the plaintiff from the property at Trunk Road, Poonamallee.

(ii) According to the plaintiff, all the properties set out in the plaint schedule were purchased, acquired and constructed in and out of the joint family income and funds. Hence, the plaintiff is entitled to half share in all the properties and the sale made by the 1st defendant in favour of the defendants 3 to 6 is not valid and binding on the plaintiff. The 2nd defendant is only a benami and the 2nd defendant has no source of income either to purchase or to construct the house.

(iii) According to the plaintiff, the 7th defendant is the tenant in respect of a portion in the premises bearing Door No. 282, Trunk Road, Poonammalle and paying the monthly rent of Rs. 200/- and the 1st defendant has been receiving the rent. The plaintiff is also entitled to half share in the rent and hence, the 7th defendant is also made as a party to the suit. According to the plaintiff, in spite of repeated demand made by him for partitioning the properties, since the 1st defendant refused to partition the properties, the plaintiff has filed the suit."

The brief case of the 1st defendant is as follows:

"(i) According to the 1st defendant, there was no joint family at all and there was no ancestral property left to be divided between the plaintiff''s father and the 1st defendant. The plaintiff''s father was not in possession of the temple land on the east of Survey No. 115/17. The 1st defendant was employed as a Clerk in a Provision Store at Poonamallee from 1928 to 1942. The plaintiff''s father had a meagre income till his death and he was a sickly person. He had not put up any construction, since he had no means to do the same. The construction was put up only by the 1st defendant out of his own funds. As there was no ancestral nucleus, there was no division of any property between them.

(ii) According to the 1st defendant, plaintiff''s father Kannappa Thambiran, 1st defendant and one Natesa Thambiran are brothers. Natesa Thambiran is the eldest among them. They are the sons of Ganapathy Thambiran. Ganesa Thambiran had no properties and he was an agricultural coolie. The 1st defendant was doing business in spirit with licence under DL 2. The ground floor was constructed during 1947-48 and the 1st floor was constructed in the year 1956 out of the earning of the 1st defendant. The properties acquired in the name of 1st defendant were purchased out of his own earnings and no money was provided from the joint family or from Kannappa Thambiran. The sale deed dated 19.3.1942 was brought out in the name of the 1st defendant and the name of the plaintiff''s father was included as per the wish of their mother. The 1st defendant released his rights in the property by document dated 9.2.1942. The electricity service connection stands in the name of the 1st defendant.

(iii) According to the 1st defendant, the property in Door No. 11 in Dharmaraja Koil Street is the absolute property of Pattammal, who is the mother of the 1st defendant. She gave the property to the 2nd defendant under a Will dated 21.8.1955. Item No. 2 of the suit property is not the joint family property of the plaintiff''s father and his brother, therefore, the same is not liable for partition. The property in Door No. 101 in Dharmaraja Koil Street was purchased by the 2nd defendant from the funds given to her by her grand mother viz., Pattammal under the Will dated 21.8.1955 along with a sum of Rs. 100/- provided by her from her savings. There was no joint family at the time of purchase of Door No. 101 or at any time earlier.

(iv) According to the 1st defendant, since the properties belonged to him and he being the absolute owner of the same, he has every right to dispose of the properties as he likes and the same cannot be questioned by the plaintiff. The plaintiff has no share in those lands. Plaintiff never demanded partition of any property till notice was given to him by the 1st defendant to vacate from the premises. The Ambassadar Car was purchased by the 1st defendant out of his own funds and the same was sold by him. It was not purchased out of the joint family funds. The plaintiff was permitted to stay for two months in Door No. 284, Poonamalee Trunk Road and he agreed to vacate the same on the expiry of two months period. In the letter given by him, he had agreed to pay the rent at the rate of Rs. 200/- per month for his continued stay after the lapse of two months period. However, the plaintiff did not pay the rent. The suit properties are the self acquired properties of the 1st defendant. The 7th defendant is the tenant under the 1st defendant and therefore, he is receiving the rent. The plaintiff filed the suit in O.S. No. 100 of 1961 on the file of Sub Court, Chengalpattu claiming a share and the said suit was dismissed. In these circumstances, the 1st defendant prayed for dismissal of the suit."

The brief case of the 2nd defendant is as follows:

"According to the 2nd defendant, item No. 2 of the suit property is not the joint family property and the same is the absolute property of the 2nd defendant. The 2nd defendant''s grand-mother Pattammal bequeathed the property in favour of the 2nd defendant under a Will dated 21.8.1955 along with a sum of Rs. 400/- and after the death of Pattammal, the 2nd defendant has become the absolute owner of the property. According to the 2nd defendant, the plaintiff is not entitled to any share in the property. Either the plaintiff or the 1st defendant have any right, title or interest over the property. Item No. 3 of the suit property was purchased by the 2nd defendant under a registered sale deed dated 20.9.1955. Therefore, item Nos. 2 and 3 of the suit properties belong to the 2nd defendant absolutely. In these circumstances, 2nd defendant prayed for dismissal of the suit."

Defendants 3 to 6 have stated that they are not necessary parties to the suit. Hence, they prayed for dismissal of the suit.

The 7th defendant in his written statement has stated that there is no privity of contract between himself and the plaintiff. Further, he has stated that he is an unnecessary party in the suit filed by the plaintiff.

Before the Trial Court, on the side the plaintiff, 2 witnesses were examined and 47 documents Exs. A.1 to A.47 were marked and on the side of the defendants, 2 witnesses were examined and 140 documents Exs. B.1 to B.140 were marked.

The Trial Court, after taking into consideration, the oral and documentary evidences of both sides, dismissed the suit.

Aggrieved over the judgment and decree passed by the Trial Court, the plaintiff has filed the above appeal.

In R.C.O.P. No. 115 of 1982 filed by the 1st defendant, he sought to evict the plaintiff on the ground of willful default and causing nuisance by stopping drinking water supply to other tenants. According to the 1st defendant, the plaintiff agreed to pay a sum of Rs. 200/- as monthly rent. Further, according to the 1st defendant the plaintiff had defaulted in paying the monthly rent from 5.12.1981.

The plaintiff in his counter had stated that there was no jural relationship of landlord and tenant between the 1st defendant and the plaintiff and that he neither became a tenant under the 1st defendant nor he has given any letter on 7.10.1981. Further, according to the plaintiff, he has got half share in the property, therefore, the 1st defendant cannot evict him from the suit property. Further, he has stated that the 1st defendant had cut off the water supply and the plaintiff got water supply only through an order of Rent Controller. Since there is no relationship of landlord and tenant between the 1st defendant and the plaintiff, the plaintiff prayed for dismissal of R.C.O.P. No. 115 of 1982.

Before the Rent Controller, on the side of the 1st defendant, 2 witnesses were examined and 18 documents Exs. P1 to P18 were marked and on the side of the plaintiff, he was examined as R.W.1 and 14 documents Ex. R1 and Ex. R14 were marked.

The Rent Controller, after taking into consideration the oral and documentary evidences of both parties, dismissed the Rent Control Original Petition finding that there is no landlord and tenant relationship between the 1st defendant and the plaintiff.

Aggrieved over the order passed by the Rent Controller, the 1st defendant preferred an appeal in R.C.A. No. 3 of 1997 and the Rent Control Appellate Authority also confirmed the order of he Rent Controller.

Aggrieved over the judgments and decrees of the court below, the legal representatives of the deceased 1st defendant has filed the above Civil Revision Petition.

Heard Mr. M. Chidambaram, learned counsel appearing for the appellant in the first appeal and for the respondent in the Civil Revision Petition, Mr. V. Raghavachari learned counsel appearing for the petitioner in the Civil Revision Petition and for the respondents 8 to 11 in the first appeal and Mr. D. Arunan, learned counsel for the respondents 4 to 6 in the first appeal.

Mr. M. Chidambaram, learned counsel appearing for the appellant in the first appeal and for the respondent in the Civil Revision Petition submitted that the properties are the joint family properties of the plaintiff''s father and the 1st defendant and that the properties were purchased out of the joint family nucleus, therefore, the plaintiff is entitled to half share in the suit properties after the death of his father. Further, the learned counsel submitted that the decree passed in O.S. No. 100 of 1961 cannot be construed as res judicata for the relief sought for in the present suit. In support of his contention, the learned counsel relied upon the following judgments:--

"(i) , AIR 1967 SC 591 [Pulavarthi Venkata Subba Rao and others v. Valluri Jagannadha Rao (deceased) Rep. by his heirs and legal representatives and others] wherein, the Hon''ble Supreme Court held that no distinction is made that the decrees passed after contest and decrees passed on compromise. Both the kinds of decrees are amenable to the provisions of section 19(2) and also of section 16(iii). There being no distinction between decrees passed after contest and decrees passed on compromise, the words ''''in which the decree or order passed has not become final " in clause (ii) of section 16, cannot be held to refer to a compromise decree but to decrees which are final such as final decrees for fore-closure, etc., in suits on mortgages.

(ii) , AIR 1970 SC 987 [Vallabh Das v. Dr. Madanlal and others]. In this judgment, the Hon''ble Supreme Court held that wherein the first suit the plaintiff sought to enforce his right to partition and separate possession and in the second suit, he sought to get possession of the suit properties from the trespasser on the basis of his title, held that, the subject matter in the two suits was not the same although the factum and validity of adoption of the plaintiff in both the suits came up for decision.

(iii) , AIR 1979 Patna 169 [Lakshmi Prasad Bhagat and another v. State of Bihar and others] wherein the Patna High Court held that prior proceeding under section 48E Bihar Tenancy Act as it stood prior to Bihar Act 8 of 1970 for declaration of Bataidari rights of the raiyat dismissed as not maintainable for want of averment of dispossession held did not operate as res judicata and a subsequent proceeding under the same section was possible."

Further, the learned counsel for the appellant submitted that in the Rent Control proceedings the courts below have rightly came to the conclusion that there is no jural relationship of landlord and tenant between the first defendant and the plaintiff and rightly dismissed the petition filed by the first defendant for eviction on the ground of willful default and causing nuisance to the other tenants.

Countering the submissions made by the learned counsel appearing for the petitioner, Mr. V. Raghavachari, learned counsel appearing for the respondents 8 to 11 in the First Appeal and for the petitioner in the Civil Revision Petition submitted that the suit properties are the self acquired properties of the 1st defendant and that the plaintiff has no right in respect of those properties and that the plaintiff had miserably failed to establish his case by any acceptable evidence. Further, the learned counsel submitted that the Trial Court has rightly dismissed the suit filed by the plaintiff for partition finding that the suit properties are not the joint family properties. In respect of the rent control proceedings, the learned counsel submitted that the courts below erroneously declined to order eviction on the ground of willful default and causing nuisance finding that there is no jural relationship of landlord and tenant between the first defendant and the plaintiff. The learned counsel further submitted that the first defendant had clearly established that there was jural relationship of landlord and tenant between him and the plaintiff and therefore, the judgment and decrees passed by the courts below are liable to be reversed.

On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, the following points arise for consideration in the Appeal and in the Civil Revision Petition:--

"(i) Whether the suit properties are the joint family properties of the plaintiff''s father and the 1st defendant?

(ii) Whether the properties were purchased out of the joint family nucleus?

(iii) Whether the plaintiff is entitled for share in the suit properties?

(iv) Whether the 1st defendant is entitled to get an order of eviction as against the plaintiff in R.C.O.P. No. 115 of 1982?"

It is not in dispute that the plaintiff''s father and the 1st defendant are brothers. The plaintiff claims that after the death of his father he is entitled to a share in the suit properties along with the 1st defendant. On the contrary, the 1st defendant contended that item Nos. 1 and 4 of the suit properties are his self acquired properties and item Nos. 2 and 3 are the absolute properties of the 2nd defendant. The 1st defendant''s father viz., Ganapathy Thambiran had 3 sons and 6 daughters. The sons of Ganapathy Thambiran are 1st defendant, Kannappa Thambiran, who is the father of the plaintiff and Natesa Thambiran. The plaintiff is the only son of Kannappa Thambiran. Kannappa Thambiran and the 1st defendant were living together till 1942. Kannappa Thambiran died in the year 1942. The father of the 1st defendant and Kannappa Thambiran, viz., Ganapathy Thambiran did not have any properties when he died in the year 1920. Under Ex. B16 sale deed dated 22.4.1940 Kannappa Thambiran and the 1st defendant purchased the 1st item of the suit property. Subsequently, under Ex. B20 release deed dated 9.2.1942 Kannappa Thambiran released his share in the property in favour of the 1st defendant. In Ex. A36 Mortgage Deed dated 24.5.1956 executed by the 1st defendant and the plaintiff, it has been recited that the 1st defendant is the absolute owner of the 1st item of the property and by abundant caution the plaintiff has been made as a party to the document. When the plaintiff himself is a party in the said document, now he cannot contend that the first item of the property is a joint family property. When the plaintiff is a party to the Mortgage Deed dated 24.5.1956, he cannot set up a case contrary to the recitals found in the Mortgage Deed. Setting up a case contrary to the recitals found in Ex. A36 is hit by sections 92 and 93 of the Indian Evidence Act. Therefore, from Exs. B20 and A36, it is clear that the 1st item of the suit property belong to the first defendant.

Admittedly, item Nos. 2 and 3 of the suit properties stands in the name of the 2nd defendant. Item No. 2 of the suit property was bequeathed by the 2nd defendant''s grand-mother viz., Pattammal under a Will dated 21.8.1955. After the death of Pattammal, the 2nd defendant became the absolute owner of item No. 2 of the suit property. The Will was marked as Ex. B.71. Under Ex. B.72 Sale deed dated 20.9.1955, the 2nd defendant purchased the 3rd item of the suit property. There is no recital in Ex. B.72 sale deed to the effect that the funds for the purchase of the land of 3rd item of the suit property was provided from the joint family nucleus. Hence, the said properties cannot be construed as joint family properties and they can be construed only as absolute properties of the 2nd defendant.

Similarly, 4th item of the suit property was purchased by the 1st defendant out of his own funds. The plaintiff was not in a position to prove that item No. 4 was purchased out of the joint family nucleus and therefore, in the absence of any acceptable evidence, he is not entitled to a share in the 4th item of the suit property.

The Trial Court has rightly came to the conclusion that item Nos. 1 and 4 of the suit properties are the absolute properties of the 1st defendant and item No. 2 and 3 of the suit properties are the absolute properties of the 2nd defendant. In the absence of any evidence produced by the plaintiff to establish that the suit properties are joint family properties, the conclusion of the Trial Court is just and proper.

The suit filed by the plaintiff in the year 1961 in O.S. No. 100 of 1961 on the file of Sub Court, Chengalpattu as against the 1st defendant herein and one C.S. Loganathan, claiming a share in the 1st item of the suit property, was settled between the parties.

The learned counsel appearing for the appellant submitted that the said suit in O.S. No. 100 of 1961 was filed by the plaintiff only to protect the property from being sold in auction by the 2nd defendant therein viz., C.S. Loganathan and in order to protect the property from the clutches of the said C.S. Loganathan, the suit was filed by the plaintiff for partition in respect of 1st item of the suit property. The said suit was dismissed as settled out of court. Therefore, it is clear that it is only a collusive suit filed by the plaintiff as against the 1st defendant and C.S. Loganathan. If really the plaintiff had a right in all the properties, he would have filed the suit in respect of all the properties. But, the said suit was filed only in respect of 1st item of the suit property. In these circumstances, the Trial Court has rightly dismissed the suit for partition finding that the suit properties are not joint family properties.

With regard to the rent control proceedings, on a perusal of the materials available on record, it could be seen that though the 1st defendant had contended that the petition property was leased out to the plaintiff on a monthly rent of Rs. 200/- and that the plaintiff had given a letter dated 7.10.1981, the said fact was not established by the 1st defendant before the courts below. The averments stated by the 1st defendant were not proved by him by any means.

The courts below took into consideration Exs.R4 and R5 and came to the conclusion that there is no landlord and tenant relationship between the 1st defendant and the plaintiff. Since there is no landlord and tenant relationship between the 1st defendant and the plaintiff, the Rent Control Original Petition filed by the 1st defendant is not maintainable. In these circumstances, the courts below have rightly dismissed the petition.

Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel appearing for the appellant, since the facts and circumstances of the present case are different, the judgments relied upon by him are not applicable to the present case.

Since this court is confirming the judgment and decree passed in O.S. No. 294 of 1984, the legal representatives of the 1st defendant viz., respondents 8 to 11 are at liberty to initiate appropriate proceedings for taking delivery of possession from the plaintiff in accordance with law.

In these circumstances, I do not find any ground to interfere with the judgment and decree of the courts below. Accordingly, the first appeal and the Civil Revision Petition are dismissed. No costs.