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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
Satvithri Padmanabhan & Others
Versus
M. Rajendran
Second Appeal No.1062 of 2000 & C.M.P.Nos.4737, 12791, 6055,16979 of 2002 & 17748 of 2004
Decided on: 24-08-2009
(B) Indian Evidence Act, 1872 (1 of 1872)-Sec.116- Tenancy-Lease-Licence-Will-Executor-Denial of title-Estoppel- A licencee cannot question the locus standi of the executor of a will to file a suit in respect of a property when he admitted that the land belonged to the testator.
Since late P.Padmanabhan came into possession of the suit property only through late Dr.M.G.Ramachandran, he cannot now question the right of the respondent, who is the executor of the will of late Dr.M.G.Ramachandran. If at all, the right of the late Dr.M.G.Ramahcandran can be questioned, the same can be done only by M/s.Sathya Studio (P) Limited. It is between the respondent and M/s.Sathya Studio (P) Limited to decide, whether the respondent has got right to file the suit or not. The appellants cannot question the right of the respondent. The appellants came into possession of the suit property only through late Dr.M.G.Ramachandran and not through M/s.Sathya Studio (P) Limited. Therefore, the suit filed by the respondent is maintainable.
Para 26
(C) Transfer of Property Act, 1882 (4 of 1882)-Sec.105- Lease-Licence-Determination-To determine whether a transaction is a lease or licence, the real intention of the parties and the surrounding circumstances has to be taken into consideration.
Therefore, applying the principles laid down in the above referred judgments, the test to determine whether the occupation is lease or licence, the real intention of the parties and the surrounding circumstances have to be taken into consideration. Para 31
(D) Transfer of Property Act, 1882 (4 of 1882)-Sec.105-Licence-Possession-Nature-Interest-Licensee has no interest in the property and his possession for enjoyment of his right is no judicial possession but only an occupation.
Therefore, it is clear that the licensee has no interest in the property and his possession for enjoyment of his right is no judicial possession but only an occupation. Therefore, the suit for revocation of licence is maintainable. Para 34
(E) Code of Civil Procedure, 1908 (5 of 1908)-O. 41 -Appeal-Procedure-Points for determination-Failure-Failure by the appellate Court in framing the points for determination for disposal of the appeal would not vitiate its judgment when it has considered and discussed all the points in issue and the parties to the appeal are also not prejudiced thereby.
The lower appellate court though did not frame points for consideration, the appellate court has considered the entire evidence on record and discussed the same in details and its findings are supported by reasons and there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of points for determination. Where there is an honest endeavour on the part of the lower appellate court to consider the dispute between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court. Therefore, the judgment of the lower appellate court is a valid judgment even though it does not contain points for determination.
Para 37
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The above second appeal arises against the judgment and decree in A.S.No. 21 of 2000 on the file of IV Additional City Civil Judge, Chennai confirming the Judgment and Decree in O.S.No.7915 of 1997 on the file of XVIII Assistant City Civil Judge, Chennai.
2. The defendants in the suit are the appellants in the above second appeal. The respondent herein is the plaintiff in the suit.
3. The plaintiff filed the suit in O.S.No.7915 of 1997 on the file of on the file of XVIII Assistant Judge, City Civil Court, Chennai for the following relief:-
(a) For a mandatory injunction directing the defendants to remove their cattle and all other things from the B schedule property and hand over possession of the B schedule mentioned property to the plaintiff within a time to be fixed by this court;
(b) for a permanent injunction restraining the defendants, their agents, servants and men and every one claiming under them and acting on their behalf from, in any way, committing any nuisance in the A and B schedule properties, either by dumping cow-dung either in the B schedule property or outside the B schedule property on letting in drainage and waste water from the cattle shed from the B schedule property;
(c) directing the defendants to pay the plaintiff damages for use and occupation at the rate of Rs.10,000/- per month or at any other sum as this court may fix, from the date of plaint till they remove their things and deliver possession of the B schedule property to the plaintiff; and
d) directing the defendants to pay the cost of the suit.
4. The brief case of the plaintiff is as follows:-
(i) According to the plaintiff, he is in possession and management of the entire property bearing Door No.5 and 6, Adyar Bridge Road, Raja Annamalai Puram, Chennai, which is now named as Sathyabama M.G.R. Maligai, which is the suit A schedule property as executor of the will of late Dr.M.G.Ramachandran and as Managing Director of Sathya Studios (P) Limited. The entire property is within a compound measuring about 5 acres, having two main gates and the entry inside the compound wall was only via main gates and can be only with the permission of the plaintiff. If those gates are closed, no one can enter the compound. Apart from that, the plaintiff is also in possession of leasehold land in Survey No.4275/5 measuring about 40 grounds leased by the Government which is abutting the property belonging to Sathya Studios (P) Limited, which is in the possession and administration of the plaintiff in his capacity as executor of the will of late Dr.M.G.Ramachandran and as Managing Director of Sathya Studios (P) Limited.
(ii) The first defendant is the wife of one P.Padmanabhan and the second defendant is the daughter of the said P.Padmanabhan. The said P.Padmanabhan was given permission by way of leave and licence to have some cattle by late Dr.M.G.Ramachandran and to occupy one room in a portion of the A schedule property. It was only leave and licence. The area which was under the permissive occupation of P.Padmanabhan by way of leave and licence given by late Dr.M.G.Ramachandran is the suit B schedule property. Since the said P.Padmanabhan died, suit has been filed as against his legal heirs. Late P.Padmanabhan was the Manager of Sathya Studios (P) Limited. Late Dr.M.G.Ramachandran was having some cows for milk so that milk could be used for the purpose of studio. Late P.Padmanabhan was put in management of those cows. Then some more cows were brought and they were also housed in a thatched sheds. The hay and other items were stored in one asbestos cement sheet shed which was the carpentry for the Sathya Studios (P) Limited. Therefore, the suit B schedule property was permitted to be used by late P.Padmanabhan by way of leave and licence. It was only late Dr.M.G.Ramachandran, who, out of generosity, gave leave and licence to late P.Padmanabhan. There is absolutely no official dealings between Sathya Studios (P) Limited and late P.Padmanabhan in this
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