K. Subramaniyan vs Mariyayee

P.R. Shivakumar, J.—The Defendant in the original suit is the Appellant herein. Plaintiff in the original suit is the Respondent in the second appeal. The suit O.S. No. 137/2002 on the file of the learned District Munsif, Thuraiyur, was filed by the Respondent herein for recovery of possession based on the alleged termination of tenancy and for recovery of a sum of Rs. 625/- being the arrears of rent and for damages for use and occupation from the date of filing of the suit. The suit was decreed by the trial court directing the Appellant herein/Defendant to deliver vacant possession of the suit property to the Respondent herein/Plaintiff and also to make payment of a sum of Rs. 625/- towards arrears of rent. In respect of other reliefs the suit was dismissed .The judgment and decree of the trial court was passed on 26.07.2008.

As against the same, the Appellant herein preferred an appeal on the file of the lower appellate court, namely the court of the Second Additional Subordinate Judge, Tiruchirapalli in A.S. No. 182/2008. In the said appeal, the Appellant herein/Defendant also filed an interlocutory application in I.A. No. 967/2009 under Order XLI Rule 27 for reception of additional documentary evidence. The learned first appellate judge by a common judgment and decree dated 18.12.2009 dismissed the said application and the appeal. As against the dismissal of the appeal by lower appellate court, the present second appeal has been filed by the Appellant herein/Defendant.

The submissions made by Mr. V. Singan, learned Counsel appearing for the Appellant and by Mr. R. Sundar, learned Counsel appearing for the Respondent were heard. The materials placed before this Court in the form of typed set of papers including copies of judgment and decrees passed by the court below were also perused.

The Respondent herein/Plaintiff filed the original suit O.S. No. 137/2002 on the file of the learned District Munsif, Thuraiyur making the following allegations: The suit property ancestrally belonged to one Karuppa Pillai. The Plaintiff Mariyayee and one Chockalingam were his legal heirs. The said Karuppa Pillai died in the year 1969 leaving behind him the Respondent herein/Plaintiff and his brother Chockalingam as his legal heirs. The said Chockalingam also went to Malaysia and died in Malaysia on 04.10.1984, without executing any will, leaving behind him his wife and five children as his legal heirs. As such the Respondent herein/Plaintiff and the wife and children of the said Chockalingam became the co-owners of the suit property. Since Chockalingam and his children were in Malaysia, the Plaintiff, being the daughter of the original owner Karuppa Pillai, was in management of the suit property. As such, the suit property was leased out by her to the Appellant herein/Defendant in 1987 initially at a monthly rent of Rs. 45, which was subsequently raised gradually upto Rs. 125/- per month. The Appellant herein/Defendant did not pay properly the rent from 1999 and hence the lease was terminated by the Respondent herein/Plaintiff by issuing a notice to the Appellant herein/Defendant in the month of April 2002. For the said notice, the Appellant herein/Defendant gave a reply containing false and untenable allegations and hence the Respondent/Plaintiff had to file the suit for the above said reliefs.

The suit was resisted by the Appellant herein/Defendant contending that there was no jural relationship of landlord and tenant between the Respondent herein/Plaintiff and the Appellant herein/Defendant; that the Appellant herein/Defendant became a tenant directly under Karuppa Pillai and was paying rent to this agent; that after the death of Karuppa Pillai, no one came forward to receive the rent on behalf of his legal heirs; that the Respondent/Plaintiff was not the daughter of Karuppa Pillai; that however he was paying the rent to her in good faith on her representation and upon her claim that she was the daughter of Karuppa Pillai and that since the Respondent/Plaintiff was not the daughter of Karuppa Pillai and since the other legal heirs of Karuppa Pillai, namely wife and children of Chockalingam were not made parties to the suit and nor the suit was filed on their behalf also, the suit should be rejected and dismissed as not maintainable. It was also contended by the Appellant herein/Defendant that the said Karuppa Pillai and Chockalingam having acquired the citizenship of Malaysia, they ceased to have any right to hold the immovable property without the permission of the Reserve Bank of India and that on that ground also the suit filed by the Respondent herein/Plaintiff should be dismissed.

Based on the pleadings, the learned trial judge framed five issues and conducted trial. The issues framed by the trial court is as follows:

1) Whether the Plaintiff is entitled to the relief of recovery of possession, arrears of rent and future damages for use and occupation?

2) Is it correct to state that the Defendant became a tenant under Karuppa Pillai?

3) Whether the contention of the Defendant that the Plaintiff is not the daughter of Karuppa Pillai can be sustained?

4) Whether the suit is bad for non-joinder of necessary parties?

5) What other reliefs available?

In the trial, two witnesses were examined as P.Ws.1 and 2 and 27 documents were marked as Exs.A1 to A27 on the side of the Respondent herein/Plaintiff, whereas the Appellant herein/Defendant figured as the sole witness (D.W.1) and no document was produced on his side.

The learned trial judge, on an appreciation of evidence, came to the conclusion that the claim of Respondent herein/Plaintiff to be the daughter of Karuppa Pillai and that the Appellant/Defendant became a tenant under her were established by sufficient evidence. The learned trial judge also held that the opposition to the suit claim on the ground of absence of permission from Reserve Bank of India to hold immovable property in India, was not sustainable; that the suit was not bad for non-joinder of necessary parties and that the Respondent/Plaintiff was entitled to the reliefs of recovery of possession and recovery of Rs. 625/- towards arrears of rent. In all other respects the suit claim was dismissed.

The said judgment and decree of the trial court was challenged before the lower appellate court, namely the Second Additional Subordinate Judge, Tiruchirapalli in A.S. No. 182/2008, in which an interlocutory application in I.A. No. 967/2009 was filed under Order XLI Rule 27 CPC for reception of additional evidence. The Appellant herein/Defendant was also unsuccessful before the lower appellate court and the lower appellate court, on consideration and re-appreciation of evidence, came to the conclusion that no case for reception of additional evidence was made out and that the judgment of the trial court in all respects did not suffer from any defect or infirmity. Hence the appeal was dismissed by the lower appellate court confirming the decree passed by the trial court. As against the decree of the appellate court confirming the decree passed by the trial court, the present second appeal has been filed.

A second appeal against the decree passed by the appellate court, which is subordinate to the High Court, shall lie to the High Court u/s 100 CPC on a substantial question of law. The Appellant, who suffered a decree before the trial court, which was confirmed by the lower appellate court, has come forward with the present second appeal. It is the admitted case of both parties that the suit property originally belonged to Karuppa Pillai. The Respondent herein/Plaintiff took a stand that she was the daughter of Karuppa Pillai and hence she was managing the properties of her father as one of his legal heirs after his death and in such capacity, she leased out the suit property to the Appellant herein/Defendant in 1987 and that the relationship between the Respondent herein/Plaintiff and the Appellant herein/Defendant was one of landlord and tenant. The defence case of the Appellant/Defendant is that he did not become a tenant under the Respondent herein/Plaintiff and on the other hand, he became a tenant directly under Karuppa Pilla when he was alive and was paying rent to another person as his agent. It is also the contention of the Appellant herein/Defendant that the Respondent herein/Plaintiff is not the daughter of Karuppa Pillai.

In view of the said stand taken by the Appellant herein/Defendant, the Respondent herein/Plaintiff, besides examining two witnesses, produced Exs.A5, A6, A8, A9 and A22 to A27. Ex.A5 is the telegram sent to P.W.1, the husband of the Respondent herein/Plaintiff informing the death of Chockalingam Pillai. Ex.A6 is the invitation printed for the marriage of the Respondent herein/Plaintiff with P.W.1. It was of the year 1956. Ex.A9 is the felicitation letter given to them at the time of their marriage. Exs.A22 to 27 are the judgments and decrees which were obtained by the Respondent herein/Plaintiff in other proceedings. In all those documents, the Respondent herein/Plaintiff was described as the daughter of Karuppa Pillai. These documents, besides the oral testimony of P.Ws.1 and 2, will clearly show that Mariyayee, the Respondent herein/Plaintiff is the daughter of Karuppa Pillai. In addition to that there are also sufficient evidence to show that the tax etc. in respect of the suit property were paid by the Respondent herein/Plaintiff.

As against the said clear stand taken and clear evidence adduced by the Respondent herein/Plaintiff, the plea taken by the Appellant herein/Defendant and the evidence adduced by him are not cogent and they do not instill confidence of the court. Even the Appellant herein/Defendant had admitted in his written statement that he was making payment of rent to the Respondent herein/Plaintiff in good faith and on the basis of her representation that she was the daughter of Karuppa Pillai. In his evidence also he has given a go-bye to the contention that Respondent herein/Plaintiff is not the daughter of Karuppa Pillai, by his admission pleading ignorance of such relationship. The courts below, on a proper appreciation of evidence, came to the correct conclusion that the Respondent herein/Plaintiff was able to prove that she was the daughter of Karuppa Pillai and that the contention of the Appellant/Defendant that Mariyayaee, the Respondent herein/Plaintiff was not the daughter of Karuppa Pillai could not be sustained. There is no defect or infirmity in the same warranting any interference.

The next contention raised by the Appellant herein/Defendant is that there was no jural relationship of landlord and tenant between the Respondent herein/Plaintiff and the Appellant herein/Defendant; that he did not take the suit property on lease from the Respondent/Plaintiff and that on the other hand, he took the suit property on lease directly from Karuppa Pilla some 35 years prior to the date of his examination as D.W.1. The said contention has been falsified by his own admission and also by clear oral and documentary evidence adduced on the side of the Respondent herein/Plaintiff. The Appellant herein/Defendant, during his cross-examination, has admitted that when he came to reside in the suit property, Karuppa Pillai was not alive. It is also his clear admission, which is not in tune with the case of the Respondent herein/Plaintiff, that he became a tenant in respect of the suit property in January 1987. The Respondent herein/Plaintiff has proved that Karuppa Pillai died in 1969 itself by producing Ex.A7-Death Certificate. That will show that in 1987, Karuppa Pillai was not alive and hence the Appellant herein/Defendant could not have taken the property on lease from Karuppa Pillai. It is also the contention of the Appellant herein/Defendant that Chockalingam Pillai, son of Karuppa Pillai predeceased Karuppa Pillai. But Ex.A5-telegram will show that he died only in the year 1984. Furthermore, there is a clear admission on the part of the Appellant herein/Defendant as D.W.1 that he did not become a tenant under Chockalingam Pillai. As it has been admitted by the Appellant herein/Defendant that he became a tenant in respect of the suit property only in January 1987, his case that he became a tenant under Karuppa Pilla directly 35 years prior to his examination as D.W.1 is liable to be rejected as untenable.

Under whom he became a tenant is the next question to be decided. In this regard, the case of the Appellant herein/Defendant is quite confusing. At one place he would say that he got the property from one Rajasekar and at another place he would say that he got the property on lease from Karuppa Pillai. Regarding the question to whom he was paying rent, he gave confusing statements. In the written statement itself such contradictory plea had been taken. At one place he had stated that after the death of Karuppa Pillai no one came forward to receive rent on his behalf. At another place he had stated that he paid the rent in good faith to the Plaintiff on the basis of the claim made by her that she was the daughter of Karuppa Pillai. In this regard also, there is not only confusion in the stand taken by the Appellant/Defendant but also an admission that he accepted the Respondent/Plaintiff to be the daughter of Karuppa Pillai. It is the further admission made by the Respondent herein/Plaintiff that he was a tenant under one Periyasamy and was residing in his house from 1970 to 1980; that thereafter he was residing in a house belonging to one Periyasamy, then in a house belonging to one Dharmalingam and that only thereafter in 1986-87 he came to reside in the suit house. The same will show that he could not have become a tenant in respect of the suit property under Karuppa Pillai directly or under anybody else than the Respondent herein/Plaintiff and that the case of the Respondent herein/Plaintiff that the Appellant herein/Defendant became a tenant under her in January 1987 is more probable and the same has been substantiated by cogent evidence. The courts below have rightly held that the Appellant herein/Defendant became a tenant under the Respondent herein/Plaintiff and that there was a relationship of landlord and tenant between the Respondent herein/Plaintiff and the Appellant herein/Defendant. The said finding is well founded and deserves no interference.

The next question that arises for consideration is whether the tenancy was properly terminated and whether the Respondent herein/Plaintiff is entitled to recover possession based on such termination. It is the contention of the Appellant herein/Defendant that the notice to quit was not issued on behalf of all legal heirs of Karuppa Pillai and that hence the notice is invalid. It is the further contention of the Appellant herein/Defendant that the other legal heris, namely the wife and children of Chocklaingam Pillai being in Malaysia ,the suit filed by the Plaintiff alone is not maintainable. It is the off short of the contention raised by the Appellant herein/Defendant that the suit is not maintainable since Karuppa Pillai himself was a citizen of Malaysia and he could not hold any property in India without the permission of the Reserve Bank of India. Such a question does not arise in this case. There is no evidence to show that Karuppa Pillai was not a citizen of India. It was his ancestral property, according to the plaint plea. Though his son Chocklaingam Pillai, admittedly died in Malaysia leaving his wife and children there as his legal representatives, that does not mean that the Plaintiff being one of the legal heirs of Karuppa Pillai and living in India could not hold the property. Moreover, the Appellant herein/Defendant is proved to have become a tenant under the Respondent/Plaintiff and that therefore, the Appellant herein/Defendant cannot set up title on a third party and contend that since the other legal heirs of Karuppa Pillai are not entitled to hold the property, the Plaintiff, who is nevertheless entitled to hold the property in India, could not file the suit for recovery of possession on the basis of termination of tenancy. The intention of the Appellant herein/tenant seems to be to squat on the property for ever without even paying the rent. A co-owner, especially when she is the only person entitled to hold the property and from whom the Appellant/Defendant had got the property on lease, is very much entitled to terminate the lease by issuing notice of termination in accordance with law and seek recovery of possession. The Respondent herein/Plaintiff has rightly issued a termination notice under Ex.A2 which was received by the Appellant herein/Defendant as evidenced by the acknowledgement card (Ex.A3). The averments found in the reply notice (Ex.A5) are untenable.

For all the reasons stated above, this Court comes to the conclusion that the concurrent findings of the courts below that the lease has been validly terminated by issuing a termination notice is well founded and the same does not deserve any interference.

So far as the question of non-joinder of necessary parties also, for the above said reasons, the courts below rightly held that the suit was not bad for non-joinder of necessary parties and that the Respondent herein/Plaintiff was entitled to recover possession of the suit property and also a sum of Rs. 625/- being the arrears of rent for the period up to the date of termination. Of course there is a scope for the Respondent herein/Plaintiff to have filed an appeal as against the rejection of her prayer for recovery of damages for use and occupation from the date of filing of the suit. However, the Respondent herein/Plaintiff has not chosen to file any appeal. Therefore, we need not go into the said question. Taking advantage of the said fact that the Respondent herein/Plaintiff has not filed any such appeal and emboldened by the same, the Appellant herein/Defendant seems to have filed the second appeal after suffering a decree in the trial court, which was also confirmed by the lower appellate court, when such decree cannot be termed erroneous or defective. All the issues have been rightly decided by the courts below and none of the findings of the courts below can be termed either defective or infirm, much less perverse. No question of law is proved to have been decided wrongly by the courts below. There is no merit in the second appeal and the same deserves to be dismissed at the stage of admission itself.

In the result, the second appeal is dismissed confirming the judgments and decrees of the courts below. No cost. Consequently, connected miscellaneous petition is closed.