Relationship of landlord and tenant not established.

The appellant/plaintiff, though was successful before the trial Court in getting a decree for injunction, failed before the first appellate court, when the same was challenged by the defendant and the result is the second appeal.

2. The suit property measuring 78 cents which is equivalent to 0.31.0 hectare, in Survey No.19/2 situated at Kuthapakkam village belongs to the plaintiff/appellant temple. According to the plaintiff, this property was in the possession and enjoyment of Kothandapani as lessee and on his surrender on 30.3.1990, the plaintiff temple is in possession and enjoyment of the suit property in its own right. It seems, the defendant, who has no right or interest in the suit property, attempted to trespass into the suit property, with a view to grab the temple property and in order to prevent the trespass and to protect the possession of the suit property, a suit has been filed by the temple, for permanent injunction.

3. The respondent/defendant admitting the title of the plaintiff temple in respect of the suit property, opposed the case of the plaintiff, denying the allegations in the plaint and setting up lease hold right in his favour, claiming possession traceable to the legal origin, which cannot be labeled as trespass, thereby praying for the dismissal of the suit.

4. The learned Principal District Munsif, Cuddalore, considering the oral evidence of P.Ws.1 & 2 as well as D.W.1, in addition evaluating Exs.A1 to A4 and Exs.B1 & B2, came to the conclusion, that the plaintiff as the owner of the suit property is in possession and enjoyment of the same, in which the defendant/respondent has no possession or right to be in possession. Thus concluding, a decree has been granted as prayed for, in favour of the plaintiff on 31.1.1992, which was challenged by the defendant before the Sub Court, Cuddalore in A.S.No.60/1992.

5. When the appeal was pending, the defendant as appellant filed an application under Order 41 Rule 27 C.P.C. to receive some documents as additional evidence. Both the I.A. and the appeal were heard by the learned Additional Subordinate Judge and he felt that the documents filed as additional evidence are necessary to decide the dispute between the parties. Further, due to unavoidable reasons or otherwise, the defendant was unable to file the documents, condoning the same, he ordered those documents to be received as additional evidence, which are marked as Exs.B3 to B5. After considering the effect of Exs.B3 to B5, as well as considering the evidence available on record, the learned Additional Subordinate Judge, unable to agree with the decision rendered by the learned Principal District Munsif, set aside the finding, concluding that the defendant was in possession and enjoyment of the suit property, on the date of filing of the suit as tenant and that possession cannot be described as unlawful, labeling the defendant as trespasser. Thus concluding, the appeal was allowed upsetting the decree and judgment granted by the trial Court, which favoured the appellant/plaintiff. Aggrieved by the decision of the appellate Court, the plaintiff temple is before this Court as appellant.

6. This Court, while admitting the second appeal, had formulated the following substantial questions of law for consideration.

(1) Whether the lower Appellate Court was in error in relying on the self-serving recital in the notices issued by the defendant to a third party about his alleged possession as a cultivating tenant as admission against the plaintiff, when as per Section 21 of the Evidence Act admission cannot be proved by or on behalf of the person who makes it?

(2) Whether the lower Appellate Court was right in not casting the burden of proof on the defendant to establish that he was a tenant under the plaintiff, as falsely contended by him.

7. Heard the counsel for the appellant, Mr. Kannan and the learned counsel for the respondent, Mr. A. Thamizharasan.

8. The learned counsel for the appellant argued that th