Rajalakshmi and Vijayasamundeeswari vs Chidambaram Vanuvar Podhu

R. Banumathi, J.—This Second Appeal is directed against the Judgment in A.S. No. 14/1998 reversing the Judgment and decree passed in

O.S. No. 426/1985 thereby ordering delivery of possession of the suit property to the Plaintiff.

Plaintiff is Hereditary Trustee of Chidambaram Vanuvar Podhu. Suit property situated at Ward No. 4, Plot No. 1 comprised in T.S. No. 22,

Door No. 129 measuring 4995 sq.ft. in East Car street, Kasba Chidamabram.

Briefly stated case of Plaintiff is that the suit property was given on rent to deceased Defendant Babu in the year 1977 for a period of seven

years by the then Hereditary Trustee Kuppusamy Chettiar on a monthly rent of Rs. 110/- per month which was reduced in writing in an

unregistered written rental agreement dated 30.4.1977. Kuppusamy Chettiar died in 1981. After the death of Kuppusamy Chettiar, the present

Trustee Bharathi received the rent till December 1984 and later the Defendant sent cheque for Rs. 200/- being the increased rent for the months

January and February 1985, the tenancy came to an end on 30.4.1984. Since the Defendant failed to surrender possession after expiry of tenancy,

Plaintiff has filed the suit.

Defendant resisted the suit contending that the suit is time barred and Civil Court has no jurisdiction to try the suit. Defendant averred that the

suit property did not belong to the Plaintiff trust and that he never took possession from Kuppusamy Chettiar. According to the Defendants, neither

Bharathi nor Kuppusamy have any right in the suit property and that the rent deed dated 30.4.1977 is a forged document and Plaintiff cannot seek

for delivery of possession.

On the above pleadings, trial court framed as many as 11 Issues. On the side of Plaintiff, PWs.1 and 2 were examined and Exs.A1 to A20 were

marked. On the side of Defendant, DWs.1 and 2 were examined and Exs.B1 to B9 were marked.

Upon consideration of evidence on Issue No. 10, trial court held that Plaintiff has locustandi to represent Chidambaram Vanuvar Podhu to file

the suit. On Issue No. 8 - question of jurisdiction, trial court held that Civil court has jurisdiction to try the suit. On Issue No. 9, trial court held that

the court fee paid was correct and held against the Defendant, Insofar as, other Issues, trial court held that Ex.A11 - lease deed is an unregistered

document and when the Defendant denied the execution of Ex.A11, the same cannot be looked into even for collateral purpose. Trial court further

held that in the light of denial of execution of Ex.A11, Plaintiff would not be entitled to delivery of possession in the suit.

Aggrieved by the dismissal of the suit, Plaintiff has filed appeal in A.S. No. 14/1998. Pending first appeal, Defendant Babu died and his legal

representatives were added as Respondents-Defendants in the appeal. Lower Appellate Court held that Plaintiff has established that the suit

property was owned by the community and that the document Ex.A11 could not have been created by the Plaintiff. Lower Appellate Court further

held that even though, Ex.A11 is insufficiently stamped and unregistered and inadmissible, there can be even a oral tenancy and that tenancy need

not be by written instrument. Holding that Defendant is tenant of the Plaintiff, Lower Appellate Court held that Defendant has duty to surrender

possession to the Plaintiff and on those findings, reversed the finding of the trial court and allowed the Appeal.

Aggrieved by the reversal Judgment, Appellants have filed this Second Appeal. Second Appeal was admitted on the following substantial

questions of law:

Whether Court is entitled to decide the transaction through oral evidence when the terms of the transaction are reduced to writing and whether

Section 91 of Evidence Act is not a bar for proving the terms of a Contract by oral evidence?

Whether the suit is not maintainable without a prayer for declaration of title when the tenancy and the title of the plaintiff has been denied by the

Defendant even in the reply notice issued prior to the suit?

Whether in a suit based on tenancy and Court Fees having been paid u/s 43(2) of Tamil Nadu Court Fees Act, the Plaintiff will fail if he is

unable to prove the tenancy?

Mr. Srinath Sridevan, learned Counsel for the Appellants submitted that when the document is to be reduced into writing u/s 91 of Indian

Evidence Act, no oral evidence could be given in support of terms of contract and while so, lower Appellate Court erred in saying that the tenancy

can even be oral tenancy. It was further submitted that when Ex.A11 lease deed is inadmissible, lower Appellate Court erred in saying that the

tenancy can be even oral tenancy. In support of his contention, learned Counsel for the Appellants placed reliance upon Amudha and Others Vs.

K. Jeyaraman and Another, ; Rajendra Pratap Singh Vs. Rameshwar Prasad, .; Oriental Insurance Company Ltd., Divisional Office, No. 118-B,

West Perumal Maistry Street, Madurai-1 Vs. T. Pitchaimani and others, . T.H. Mohammed Firdous and Others Vs. Amichand and Others, and

Sri 5 Sita Maharani and Others Vs. Chhedi Mahto and Others, .

Mr. K.M. Vijayan, learned Senior Counsel for the Respondent submitted that after the expiry of period of tenancy, Defendant/tenant Babu

continued as tenant by holding over. It was therefore contended that even though, Ex.A11 lease deed was an unregistered, lower Appellate Court

rightly accepted the tenancy and ordered eviction. It was further argued that no objection was raised when Ex.A11 lease deed was marked and

having marked the document [Ex.A11], trial Court was erred in saying that Ex.A11 cannot be looked into as it is an unregistered lease deed.

While denying execution of Ex.A11 [30.4.1977] lease deed, Defendant Babu have raised plea that it is forged and concocted document.

While so saying, Appellants have alleged that deceased Defendant Babu is in possession of the suit property from his boyhood and thereafter,

Appellants are in possession of the suit property. Defendant has not stated how he came to be in possession of the suit property. Exs.A14 and

A15 are the lease deeds executed in the year 1913 and 1921 by Muthusamy Chettiar and Govindasamy Chettiar infavour of one Ponnusamy

Dikshidar and Sambasivam Pillai respectively. As pointed out by the lower Appellate Court, both Exs.A14 and A15 lease deeds pertain to the

same number as suit house. Like wise, Ex.A16 [21.10.1942] is the yet another lease deed executed by Rengasamy Chettiar infavour of Dr.

Venkatesampillai in respect of the same door number. In Exs.A14 to A16, the suit property has been described as being owned by ""Vania Vaisya

Community"". Respondent-Plaintiff have produced overwhelming documentary evidence right from 1913 to show that the suit property was

periodically leased out to different persons.

Defendant has produced Exs.B4 to B6 demand notice and receipts issued by Mannarkudi Municipality in the name of Muthusamy Chettiar.

Appellants have claimed that Muthusamy Chettiar is the great grandfather. As pointed out earlier, Exs.A14 and A15 would falsify the claim of the

Defendant. Exs.A14 to A16 were executed by Muthusamy Chettiar and others describing the suit property as being owned by the Community.

While so, there is no force in the defence plea that Defendant erstwhile tenant was in occupation of the property in his own capacity and the same

was rightly rejected by the lower Appellate Court.

Main defence is that Ex.A11 [30.4.1977] is an unregistered document and u/s 91 of Indian Evidence Act, no oral evidence could be adduced

in support of terms of lease deed. Ex.A11 lease deed was for a period of seven years; but unregistered. Main contention of the Appellants is that

Ex.A11 being an unregistered lease deed, based on Ex.A11, Respondent-Plaintiff cannot seek recovery of possession. It was mainly contended

that lease deed was required to be reduced into writing and registered and while so, lower Appellate Court was not right in saying that tenancy can

even be oral tenancy.

Placing reliance upon 2005 (2) CTC 385 Amudha and Ors. v. K. Jeyaraman and Anr. and 1999 (I) CTC 87 Rajendra Pratap Singh v.

Rameshwar Prasad, it was contended that Ex.A11 [30.4.1977] being an unregistered document, as per Section 17 of Registration Act, Ex.A11

cannot be used in any legal proceedings and being an unregistered document, the same cannot be used even for collateral purpose.

Unregistered lease or agreement for lease is inadmissible u/s 49 of Registration Act and Section 91 of Indian Evidence Act forbids any other

evidence of the agreement being given. An unregistered lease deed which is inadmissible u/s 49 of Registration Act to prove the lease cannot be

used for proving the acceptance by the lessor of the terms of the lease deed. A collateral purpose is any purpose other than that of creating,

declaring, assigning, limiting or extinguishing a right to immovable property. It is a purpose foreign and not subordinate to the purpose for which the

document was executed.

Even though, unregistered lease deed or agreement is inadmissible, the same can be used for collateral purpose of looking into the nature of

possession. As pointed out earlier, Ex.A11 [30.4.1977] was for a period of seven years. Seven years period of lease ended in 1984. As rightly

submitted by the learned Senior Counsel for the Respondent after expiry of period of lease, Appellants continued as tenant by holding over.

Therefore, when the Appellants continued as tenant by holding over, it can even be by oral tenancy. There is no impediment for adducing oral

evidence to prove the terms of continuation of tenancy. By observing that tenancy even be oral tenancy, there is no error or illegality to interfere

with the findings of the lower Appellate Court Having admitted Ex.A11 lease deed, trial Court misdirected itself in saying that Ex.A11 lease deed

cannot be looked into. In accepting the oral evidence of PW1, there is no contravention of Section 91 of Indian Evidence Act.

In so far as 3rd substantial question of law as to payment of court fee, referring to ""Law of Court Fees in Tamil Nadu - 7th Edition [K.

Krishnamuthu and R. Mathrubutham] - Page 188, trial Court held that if the landlord sues the tenant for possession, though tenant may dispute the

relationship of landlord and tenant in the written statement, court fee is leviable u/s 42(3) of TNCF Act and concluded that Plaintiff has paid the

correct court fee. Even though, such finding was recorded, Defendant has not chosen to file any cross-objection in the first Appellate Court.

Having regard to the finding recorded by the trial court, the 3rd substantial question of law as to payment of court fee does not arise for

consideration.

Upon appreciation of evidence and materials on record, lower Appellate Court was justified in reversing the conclusion of the trial Court. The

Judgment of the lower Appellate Court does not suffer from any perversity warranting interference and no question of law much less substantial

question of law arises in this Second Appeal.

In the result, the Judgment of the lower Appellate Court in A.S. No. 14/1998 dated 31.03.2006 on the file of Subordinate Court,

Chidambaram reversing the Judgment of the District Munsif, Chidambaram in O.S. No. 65/2002 dated 29.10.2003 is confirmed and the Second

Appeal is dismissed. No costs.