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2022 Supreme(Mad) 336
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
D. Thiruvengadam & Others – Appellants
Versus
Thiruvannamalai Kundrakudi Atheenam, Rep.by Atheena Karthar Shrimath Deivasigamani Ponnammalam Desikar, Sivagangai & Others – Respondents
Second Appeal Nos. 568 & 1006 of 2014
Decided on : 23-02-2022
For the Appellants:R. Thiagarajan, T. Dhanasekaran, Advocates.
For the Respondents:T. Dhanasekaran, K.V. Ananthakrushnan, Advocates.
Headnote:
Code of Civil Procedure,1908 - Section 100 - Transfer of Property Act, 1882 - Section 106 - Handover the vacant possession of the suit property - Suit seeking for the relief of a direction to direct the defendants to vacate and handover - Respondent/plaintiff filed a suit seeking for relief of a direction to direct defendants to vacate and handover vacant possession suit property - Case of plaintiff is that they are owners of land measuring about is more fully described in suit schedule – Plaintiff suit schedule property was originally leased out to father of the 1st defendant through a lease agreement stated that suit property was supposed to be maintained as a cattle shed and no permanent structure was permitted to be put up in suit property. Inspite of such a restriction, father of 1st defendant proceeded to put up a construction and aggrieved by the same – Held, defendants, found that a larger extent has been leased out to father of defendant through Ex.A5 and this extent was larger than the extent found under Exhibits B1 and B2 - Courts below took into consideration survey numbers that were mentioned in exhibits B1, B2 and A5 and also boundaries and came to a categorical conclusion that property mentioned in exhibits B1 and B2 is also included Courts below found that there are two door numbers since property was facing two different streets and that by itself does not make suit property into two distinct properties as claimed by the defendants - There is no dispute with regard to the fact that two houses have been built in the land belonging to the plaintiff within the extent covered under Ex.A5. It is also an admitted fact that the plaintiff is owner of land and what was paid as a rent only pertained to the land - Just because there are two constructions with two different door numbers, that does not make the property into two distinctive properties - Defendants were desperately attempting to cause a confusion and both Courts below have properly dealt with it and rendered their findings. Insofar as bonafides of plaintiff that was questioned by the defendants is concerned – Court findings of both the Courts below cannot be termed as perverse since it is based on evidence available on record - Second Appeals are dismissed.
JUDGMENT :
(Prayer in S.A.No.568 of 2014: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 29.11.2013 made in A.S.No.548 of 2005 on the file of XVII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 06.04.2004 made in O.S.No.4798 of 1997 on the file of I Asst.Judge, City Civil Court, Chennai.
S.A.No.1006 of 2014: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 29.11.2013 made in A.S.No.548 of 2005 on the file of XVII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 06.04.2004 made in O.S.No.4798 of 1997 on the file of I Asst.Judge, City Civil Court, Chennai.)
1. The 1stdefendant in the suit is the appellant in S.A.No.1006 of 2014. The appellants 2 to 4 before the lower Appellate Court are the appellants in S.A.No.568 of 2014.
2. The 1st respondent/plaintiff filed a suit seeking for the relief of a direction to direct the defendants to vacate and handover the vacant possession of the suit property. The case of the plaintiff is that they are the owners of the land measuring about 3010 Sq.ft., which is more fully described in the suit schedule. According to the plaintiff, the suit schedule property was originally leased out to the father of the 1st defendant through a lease agreement dated 16.10.1954 (Ex.A5). It is stated that the suit property was supposed to be maintained as a cattle shed and no permanent structure was permitted to be put up in the suit property. Inspite of such a restriction, the father of the 1st defendant proceeded to put up a construction and aggrieved by the same, the plaintiff filed O.S.No.2645 of 1963 for the relief of permanent injunction and the said suit was decreed by a judgment and decree dated 25.10.1966. An appeal was preferred in A.S. No.24 of 1966 and during the pendency of the appeal, there was a compromise and the father of the 1st defendant agreed to pay a sum of Rs.100/- per month as rent from 25.10.1966 onwards.
3. The further case of the plaintiff is that after the demise of the original tenant, the 1st defendant continued to occupy the property. However, he was not regular in paying the rent and as a result of the same, he accumulated huge arrears. The plaintiff also realised that a very low rent has been fixed and hence, enhanced the rent to Rs.500/- per month. This once again became a subject matter of challenge before the Civil Court.
4. The plaintiff wanted to put the property for proper use in line with their requirement and hence caused a notice dated 05.12.1996 (Ex.A3) asking the defendant to handover vacant possession. This notice was purportedly issued in compliance with Section 106 of the Transfer of Property Act, 1882 (hereinafter called as "the Act"). Since the defendants did not handover the vacant possession, the suit came to be filed.
5. The main defence that was taken in the written statement was that the notice has been issued with an incorrect description of the suit property and hence the very basis of the suit is unsustainable. Initially, the appellant in S.A. No.1006 of 2014 was the only defendant in the suit. After the decree was passed by the trial Court, the other legal heirs of the original tenant filed C.M.P.No.2023 of 2005 before the Appellate Court and impleaded themselves as appellants 2 to 5. They also toed the line of the first defendant.
6. Both the Courts below, on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case, found that the property has been properly identified by the plaintiff and a notice has been issued in accordance with the requirements of the Act and accordingly, allowed the suit in favour of the plaintiff and it was also affirmed by the lower Appellate Court. Aggrieved by the same, the present Second Appeal has been filed before this Court.
7. The Learned Counsel for the appellants submitted that the term
