S. Natarajan vs P.G. Arumugam

G. Rajasuria, J.—This second appeal is focussed by the defendant, inveighing the judgment and decree dated 21.09.2012 passed by the

learned Subordinate Judge, Tirupattur, Vellore District in A.S. No. 21 of 2010 in reversing the judgment and decree dated 23.12.2009 passed by

the learned District Munsif, Tirupattur, Vellore District in O.S. No. 132 of 2005. The parties, for the sake of convenience, are referred to here

under according to their litigate status and ranking before the trial Court.

Broadly but briefly, narrative but precisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run

thus:

a] The plaintiff filed the suit for obtaining delivery and vacant possession of the suit property from the defendant by setting out the following

averments, the gist and kernel of them would run thus:

The suit property described in the schedule of the plaint was leased out by the plaintiff to the defendant for a monthly rent of Rs. 250/- on

13.03.1998. The defendant agreed that he would not alter the structure of the said building. However, quite antithetical to what he committed

himself earlier, he started modifying the structure of the building and also put up additional construction, in addition to removing a portion of the

building and constructing latrine without the consent of the plaintiff. He did not pay rent from the commencement of the tenancy and thereby he

committed willful default in paying the rent also. Whereupon the plaintiff issued notice dated 14.02.2005, which was received by the defendant;

however he failed to vacate the suit property. Hence the suit.

b] Per contra, the defendant filed the written statement, denying and refuting the averments/allegations in the plaint, the pith and marrow of the

same would run thus:

The plaintiff borrowed a sum of Rs. 25,000/- from the defendant and executed a simple mortgage deed dated 13.3.1998 in favour of the latter.

The plaintiff had put the defendant in possession of the suit property and for which the defendant was not enjoined to pay any rent and the

arrangement was that he should adjust the interest payable on the said amount of Rs. 25,000/- towards rent for the suit property. With that

understanding alone, the defendant has been residing in the suit property and he is also running a provision shop and STD shop there.

Subsequently, the plaintiff borrowed a sum of Rs. 35,000/- on 13.03.2001 and another sum of Rs. 35,000/- on 20.03.2001. The plaintiff also

agreed that on repayment of those amounts including the mortgage amount to the defendant, the former could regain possession of the suit house.

Already the defendant filed the suit in O.S. No. 101 of 2004 based on pro-note as against the plaintiff herein and obtained a money decree on

03.10.2005. So far the mortgage debt and the pro-note decree were not discharged. The defendant did not effect any modification or put up any

new construction including latrine. As such, the suit filed was not tenable.

Accordingly, he would pray for the dismissal of the suit.

c] Issues were set down for trial, during which, on the plaintiff''s side, P.Ws. 1 and 2 were examined and Exs. A1 and A2 were marked. On the

side of the defendant, D.Ws. 1 and 2 were examined and no document was marked.

d] Ultimately, the trial court dismissed the suit; as against which, the plaintiff preferred the appeal; during the appeal stage, I.A. No. 23/2011 was

also filed for reception of additional evidence for marking the following documents:

Certified copy of the mortgage deed dated 13.3.1998

Notice dated 10.03.2010 issued by the defendant counsel to the plaintiff.

Reply notice dated 13.10.2010 issued by the plaintiff counsel to the defendant counsel.

Acknowledgement card by Natarajan dated 13.10.2010.

Notice dated 25.10.2010 issued by the Natarajan to Arumugham. The first appellate court on hearing both sides, allowed the I.A. and also

disposed of the appeal in favour of the plaintiff.

e] Challenging and impugning the judgment and decree of the first appellate court, the defendant has preferred this second appeal on various

grounds and also suggesting the following substantial questions of law:

(i) Whether the judgment in the first appeal can be pronounced without applying the principle of ''mode of taking additional evidence'' prescribed in

Order 41 Rule 28 of the Code of Civil Procedure?

(ii) Whether the legal notice of the respondent was picturised in the frame of Section 106 of the Transfer of Property Act?

(iii) Whether the burden of proof lies on the respondent as per Section 101 of the Indian Evidence Act?

(extracted as such)

Heard the learned counsel for the appellant/defendant.

The learned counsel for the appellant/defendant would pyramid his argument, which could succinctly and precisely be set out thus:

The first appellate court ignoring the provisions of Order 41 Rule 28 of the Code of Civil Procedure, simply marked the additional documents as

Exs. P1 to P5, additionally at the appellate stage without taking evidence properly. The burden of proof was not appreciated properly by the first

appellate court. Section 106 of the Transfer of Property Act is not found referred to in the pre-suit notice issued by the plaintiff. The plaintiff

miserably failed to mark the relevant documents so as to buttress and fortify the averments as found set out in the plaint. Accordingly, he would

pray for setting aside the judgment and decree of the first appellate court and for restoring the judgment and decree of the trial court in dismissing

the original suit.

At the outset itself, I would like to fumigate my mind with the recent decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs.

Ibrahim Uddin and Another,

Pithily and precisely, the germane facts would run thus:

Indubitably and indisputably, incontrovertibly and unassailably, the plaintiff is the owner of the house found described in the schedule of the plaint.

The defendant, no doubt, as a lessee entered into possession of it. However, the defendant would try to portray and project a case to the effect

that his possession of the suit property was under the arrangement that he could continue in possession and during such continuance of his

possession, a monthly rent of Rs. 250/- payable to the plaintiff. However, the interest payable on the sum of Rs. 25,000/- lent by the defendant to

the plaintiff, was to be adjusted towards such rent and that on the plaintiff discharging the mortgage debt, the defendant should vacate and hand

over vacant possession of the suit property to the former.

A mere running of the eye over the judgments and decrees of both the for a below would evince and evidence that there is a finding of fact by

them to the effect that there was landlord and tenant relationship. However, the learned counsel for the appellant/defendant would try to stress

upon the fact that unless the mortgage debt is discharged, the plaintiff would have no locus standi to seek eviction of the defendant, forgetting for a

moment, in the written statement itself in para No. 3, there is a clear admission on the part of the defendant that there emerged a rent deed

between the plaintiff and the defendant in respect of the suit property. No doubt, for visualising a case where the mortgagee under the simple

mortgage debt having been put in possession of the mortgaged property with the stipulation that he could continue in possession till the mortgage

debt is discharged, precisely and pithily, there is no documentary evidence.

Section 92 of the Indian Evidence Act should not be lost sight of. Ex. P1 is the certified copy of the mortgage deed, which would not contain

any stipulation to the effect that under the simple mortgage, the plaintiff could be in possession of the mortgaged property and that he could

continue to be there, as such, till the mortgage debt is discharged. The status of usufructuary mortgage is different, which I need not elaborate on

that here.

Even though in the written statement, the defendant would to some extent try to project a case as though as a mortgagee he is entitled to be in

possession of the mortgage property, i.e. the suit property, yet absolutely there is no iota or shred of evidence to buttress and fortify such stand.

Wherefore, both the courts below concurrently held that there was landlord and tenant relationship between the plaintiff and the defendant. In such

a case, I am having no reason to interfere with the said concurrent finding of fact and that too, in the absence of any evidence to prove and

establish the contentions of the defendant as found set out in his written statement.

The learned counsel for the appellant/defendant would try to draw the attention of this court to various portions of the records and argue that

the plaintiff is having no right to air his grievance as though there was no payment of rent when in fact, he himself in his deposition agreed that the

interest payable by the plaintiff under the mortgage debt could be adjusted towards the rent.

I would like to point out that such a contention would not in any way partake the place of a written agreement, which is mandatory to

demonstrate and prove that the defendant entered into possession of the suit property only under the simple mortgage. In the absence of such clear

documentary evidence to establish and display that he is entitled to be in possession till the mortgage debt is discharged, it cannot be countenanced

that the plaintiff is debarred from seeking recovery of possession of the suit property from the defendant.

Needless to stress upon the fact that if any interest is sought to be created in the immovable property worth more than Rs. 100/-, it should be

by way of a registered document; but in this case, the defendant would venture to plead that the interest in the immovable property got transferred

in his favour to the extent of his debt and that he could continue be there, till the mortgage money is paid to him. As such, in the absence of such

registered document or at least some written agreement, it is a well-neigh impossibility to countenance that he could continue to be in possession of

the immovable property till the mortgage money is paid to him. Wherefore, I could see no perversity or illegality in the judgment and decree of the

first appellate court.

The learned counsel for the appellant/defendant inviting the attention of this court to Order 41 Rule 28 of the CPC would reiterate his plea that

the first appellate court ought not to have allowed the I.A. and also disposed of the appeal by giving markings suo motu as Exs. P1 to P5 without

anything more in the process of taking evidence.

It is a trite proposition of law that if virtually the admitted documents were failed to be marked earlier, then such documents could be marked

by the first appellate court and the judgment could be pronounced and there is no question of separately passing order on the IA and thereafter,

hearing both sides and passing the judgment in the appeal.

Exs. P1 to P5 were marked as they were are admitted documents. Ex. P1 emerged between the plaintiff and the defendant. In fact, the very

bedrock of the plea of the defendant is based on Ex. P1 only and wherefore, it cannot be visualised that the first appellate court should have taken

evidence on Ex. P1 itself.

Exs. P2 to P5 are all admittedly, exchange of correspondences between the parties, which emerged anterior to the filing of the suit. Hence, I

am of the considered view that there is no illegality or impropriety on the part of the first appellate court in giving markings to those admitted

documents and in disposing of the appeal on merits.

The learned counsel for the appellant/defendant also would proceed to argue that there is no clinching evidence that there was modification of

the structures of the suit property.

At this juncture, I would like to point out that in view of the amended Section 106 of the Transfer of Property Act (vide Transfer of property

(Amendment) Act, 2002 [3 of 2003]), the law enjoins the court to see whether there is valid issuance of notice u/s 106 of the Transfer of Property

Act to the tenant by the landlord, and nothing more need be gone into and the court is not ordained to go into the reasons found stated by the land

lord in getting the tenant evicted and that too when termination of tenancy is effected not within the period of tenancy.

The learned counsel for the appellant would also submit that in para No. 14 of the judgment of the first appellate court, there is some

miscalculation as the first appellate court observed thus:

.............. Therefore, amount due towards the mortgage is Rs. 91,000/- and towards rent the amount due is Rs. 37,750/-. From the above payable

to him amount towards rent can be deducted and the amount payable is Rs. 1,08,250/-.

............

(extracted as such)

According to the learned counsel for the appellant after deducting a sum of Rs. 37,750/- from Rs. 91,000/-, the balance to be payable would

come to a lesser amount and not Rs. 1,08,250/- as wrongly arrived at by the first appellate court.

In my considered opinion, those two sentences extracted supra need not be taken seriously for the reason that in the decree passed by the first

appellate court, there is no direction for recovery of any amount at all and only eviction is ordered. All told, there is no merit in the second appeal

and accordingly, the same is dismissed. However there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.