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2021 Supreme(Mad) 3503
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R.Swaminathan, J.
Kaja Mohideen (Died), Through his Power of Attorney Agent, Hameed Fathimal - Appellant
Vs.
Kaja Mohideen - Respondent
S.A.Nos.1155 & 1156 of 2003
Decided On : 24-09-2021
Advocate Appeared:
For the Appellants : Mr.M.P.Senthil
For the Respondents: Mr.A.Arumugam
Headnote:
Civil Procedure Code, 1908 – Section 100 - Transfer of Property Act, 1882 – Section 105 and 106 – Property - Suit for recovery of possession - Payment of damages - Suit property in both suits is one and same. O.S. was filed by respondents herein seeking relief of permanent injunction restraining original appellant herein from interfering with their possession and enjoyment of suit property. O.S. was filed by original appellant for recovery of possession from respondents - Both the suits were tried together - First respondent herein examined himself as P.W.1 and five other witnesses were examined on his side - Ex.A.1 to Ex.A.13 were marked - Original appellant examined himself as D.W.1 and three other witnesses were examined on his side - After a consideration of evidence on record, trial Court by judgment and decree - Aggrieved by same, respondents herein filed A.S. before I Additional Sub Court - By the impugned judgment and decree - Injunction suit was decreed and suit for recovery of possession was dismissed - Challenging same, present second appeals were filed and they were admitted. Para 7.
Finding of the Court: Only question which court called upon to answer is whether based on evidence on record, inference of trial Court that respondents are licensees is correct or whether finding of first appellate Court that respondents are lessees is correct - Respondents had pleaded that they were paying ground rent to original appellant and that there was also a written agreement between parties - Respondents would claim that original appellant induced them to part with said document on the plea that a revised agreement is to be entered into - If that be so, respondents could have marked a photocopy of such document. No such photocopy was marked - First appellate Court had reversed finding of trial Court on sole ground that respondents were found to be in occupation of suit property for almost 20 years even prior to institution of the suit - In court view, mere length of period of occupation cannot be determinative of issue - In case of lease arrangement, there is something called payment of premium or periodical rent - Learned counsel appearing for appellants informs Court that appellants herein would not press their claim for payment of damages for use and occupation for entire period - Impugned judgment and decree are set aside and decision of trial Court is restored.
Result: Appeals are allowed.
JUDGMENT :
These two second appeals arise out of a suit for recovery of possession and a suit for permanent injunction.
2. The suit property in both the suits is one and the same. O.S.No.2 of 1999 was filed by the respondents herein seeking the relief of permanent injunction restraining the original appellant herein from interfering with their possession and enjoyment of the suit property. O.S.No.604 of 1999 was filed by the original appellant for recovery of possession from the respondents. Both the suits were tried together. The first respondent herein examined himself as P.W.1 and five other witnesses were examined on his side. Ex.A.1 to Ex.A.13 were marked. The original appellant examined himself as D.W.1 and three other witnesses were examined on his side. Ex.B.1 to Ex.B.6 were marked. After a consideration of the evidence on record, the trial Court by judgment and decree dated 20.11.2001 dismissed O.S.No.2 of 1999 and allowed O.S.No.604 of 1999. Aggrieved by the same, the respondents herein filed A.S.No.113 of 2002 and A.S. No.121 of 2002 before the I Additional Sub Court, Tirunelveli. By the impugned judgment and decree dated 27.09.2002, the injunction suit was decreed and the suit for recovery of possession was dismissed. The original appellant had also filed cross appeal and that was also dismissed. Challenging the same, the present second appeals were filed and they were admitted on 25.07.2003 on the following substantial questions of law:-
“1) Whether the findings of the lower appellate Court are initiated by its failure to consider the absence of any evidence that the respondents are in enjoyment of the suit property on the basis of lease arrangement between the appellant's father and the respondents especially when P.W.2 to P.W.5 speak only about the enjoyment and not with reference to any lease agreement?
(2) Whether the lower appellate Court is right in holding that the respondents are the lessees of the vacant site in the absence of any pleading with reference to the terms of the lease, period of the lease, date of commencement of the lease and the nature of the lease especially when the burden of proof is only upon the respondents who claim on the basis of alleged lease?
(3) Whether the lower appellate Court is right in inferring the possibility of lease between the appellant's father and the respondents after having found that there are no documentary evidence evidencing the lease?
(4) Whether the lower appellate Court is right in granting a decree for injunction especially when it is established that the respondents trespassed in the suit property on the basis of the ex-parte order obtained against the appellant with the assistance of police and in the circumstances the respondents' possession is unlawful?"
3. During the pendency of the second appeals, the original appellant passed away and his legal representatives were brought on record. The learned counsel appearing for the appellants submitted that there is no dispute that the suit property belongs to the appellants. The first respondent herein was doing “Pandhal" business and he was permitted to stack his bamboos on the suit property. The suit property was permitted to be used during the festival occasion every year. During the festival period, the respondents were also allowed to put up a tea shop. The dispute however arose between the parties some time in the year 1998, when the original appellant wanted to put up a compound wall enclosing the suit property. The firm contention of the learned counsel appearing for the appellants is that the respondents were allowed to enjoy the suit property only as a licensee and that there was no lease arrangement between the parties at any point of time. The respondents ought to have surrendered the premises, the moment the license was revoked. There is no necessity to issue any formal notice of revocation. The institution of the suit itself can be construed as a notice of revocation. According to the appellants, the tria
