ANDCMP.NOS.16893 AND 16894 OF 2003 v. Sri Salai Vinayagar Templerep. by its Executive Officer,Vellore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20.12.2006CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMS.A.NOS.1863 AND 1864 OF 2003ANDCMP.NOS.16893 AND 16894 OF 2003AND VCMP.NOS.2388 AND 1335 OF 2004R.Krishnakumar ..Appellant in both S.As./Appellant/DefendantVs.Sri Salai Vinayagar Templerep. by its Executive Officer,Vellore. ...Respondent in both S.As./Respondent/PlaintiffThese Second appeals are filed under Section 100 of C.P.C.against the Judgment and decree in O.S.No.864 and 862 of 1991 dated30.9.2002 on the file of the Additional District Munsif Court atVellore District as confirmed by the Judgment and decree in A.S.No.50and 10 of 2003 dated 29.7.2003 on the file of the Principal DistrictCourt, Vellore District.For Appellant: Mr.A.AnbarasuFor Respondent: Dr.G.Jayachandran & S. Karthikeyan--J U D G M E N TThis judgment shall govern these two appeals inS.A.Nos.1863 and 1864 of 2003. 2. The plaintiff temple filed a suit in O.S.No.862 of1991 for recovery of possession of the plaint schedule property fromthe tenant who is the appellant herein. The suit was dismissed. Thefirst appeal filed by the plaintiff in A.S.No.10 of 2003 was allowedand hence the defendant has brought forth this second appeal.3. The other suit in O.S.No.864 of 1991 was filed by thesame plaintiff seeking recovery of possession of a small piece ofvacant site that it was an encroachment made by the https://hcservices.ecourts.gov.in/hcservices/ defendant/appellant. The said suit was decreed. Aggrieved over thesame, the defendant took it on appeal and the same was dismissed.Hence, the second appeal at the instance of the defendant.4. The plaintiff-temple filed a suit on the followingallegations. The suit building belongs to the plaintiff temple andthe same was let out to the defendant for carrying on business on amonthly rent of Rs.125/- and the tenancy is oral and is for month tomonth commencing on the 1st of every calendar month and ending on thelast day of every month; that on 10.8.1991, the defendanthighhandedly made an opening on the eastern wall of the suit buildingand illegally occupied the vacant site belonging to the plaintiff-temple and encroached it by raising a wall of 7 feet high on thenorthern side. Under the circumstances, the plaintiff-templeterminated the tenancy in respect of the suit mentioned building by anotice to quit dated 6.9.1991 stating that the defendant is liable tosurrender possession of the suit building. Since the defendantfailed to do so, the plaintiff filed a suit in O.S.No.862 of 1991 forrecovery of possession.5. In so far as O.S.No.864 of 1991 is concerned, it wasfiled by the plaintiff-temple alleging that the defendant is atenant under the plaintiff as referred to above and that heencroached upon a small portion which was the subject matter of thesuit and hence sought for recovery of possession of the suitmentioned site and injunction against the defendant. 6. Both the suits were contested by the defendant interalia stating that the suits are not maintainable, since the tenancywas not according to English calendar month; that it is false tostate that the defendant made an opening on the eastern wall on10.8.1991 and he encroached the vacant site by raising a wall of 7feet high on the northern side. On the contrary, the defendant hasbeen in possession right from the tenancy and in occupation of theentire property, which is the subject matter of both the suits. Apartfrom this, the defendant has been in possession of the entireproperty and hence both the suits were to be dismissed. 7. The trial Court after framing necessary issues,dismissed the suit in O.S.No.862 of 1991, but decreed the suit inO.S.No.864 of 1991. Aggrieved parties, viz. the plaintiff in thefirst suit and the defendant in the second suit filed appeals inA.S.Nos.10 of 2003 and A.S.No.50 of 2003 respectively. Both theappeals were taken up by the learned Principal District Judge,Vellore and by a common judgment, O.S.No.862 of 1991 was reversed andA.S.NO.10 of 2003 was allowed and O.S.No.864 of 1991 was affirmed bydismissing the appeal in A.S.No.50 of 2003. Hence, two second appealshave been arisen before this Court. https://hcservices.ecourts.gov.in/hcservices/

8. Advancing his arguments on behalf of theappellant/defendant in both the suits, learned counsel for theappellant would submit that the trial Court was perfectly correct inrefusing to grant the relief in a suit for recovery of possession inrespect of the building which was let out to the defendant/appellant;that even PW1 who was examined by the plaintiff has candidly admittedthat there was a written agreement between the parties. But thewritten agreement was not produced before the Court. Notice underSection 106 of the Transfer of Property Act was issued and the saidnotice is also not valid so long as the plaintiff is able to provethat the the tenancy is commencing on the 1st of every calendarmonth and ending on the last day of every month . All along theagitation by the appellant before filing of the suit and after filingof the suit, since the rent was received by the respondent-temple,the notice originally issued under Section 106 of the Transfer ofProperty Act determining tenancy was not valid and hence fresh noticedetermining tenancy should have been issued before filing the suit.The trial Court has rightly accepted the said contention anddismissed the suit.9. Pending appeal before the first appellate Court, anapplication has been filed by the respondent temple for reception ofcertain documents and the said application was also taken along withthe appeal and the application for reception of additional evidencewas allowed and the documents were also received. No sufficientreason has been given. Added further, learned counsel would submitthat the first appellate Court should not have allowed theapplication for reception of additional documents, because Order 41Rule 27 CPC stipulates that in order to adduce additional evidence,what was produced before the first appellate Court should not havebeen in the custody of the party. The additional evidence which wassought to be produced before the first appellate court, is nothingbut the counter-foils of the rent Book issued for the rent to theappellant and thus it was well in the custody of the temple. Noreason was adduced why it was not produced before the trial Court.Under such circumstances, the first appellate Court should havedismissed the application. The first appellate Court not only allowedthe Interlocutory application, but also did not afford opportunity tothe appellant to put forth his contentions on the documents whichwere produced as additional evidence and in so far as those documentsare concerned, sufficient oral evidence should also have been adducedby the respondent. Under the circumstances, the first appellateCourt's Judgment has got to be set aside and the Judgment of thetrial Court has to be restored.10. In so far as the other suit is concerned, the plaintiffhas never proved that there was any encroachment as alleged upon inthe suit building and hence the appeal filed by the tenant beforethis Court has got to be allowed. https://hcservices.ecourts.gov.in/hcservices/

11. The Court heard the learned counsel for the respondenton the above contentions.12. Learned counsel for the respondent in short wouldsubmit that in the instant case, the tenancy agreement between theparties is an admitted fact and both the Courts have givenconcurrent findings that during the pendency of the suit, theappellant/tenant has made an encroachment and the appellate Court hasaffirmed the judgment for removal of the construction and when therewas a specific pleading in the plaint that the tenancy was oral andit was commencing on the 1st of every calendar month and ending onthe last day of every month , there is no denial on the part of thedefendant neither in respect of the pleading nor the defendant hascome forward to file a suit stating that there was a writtenagreement. Apart from this, even a reply notice was also given underEx.B.1 and the first appellate Court has clearly found that thetenancy was oral and is from month to month commencing on the firstday of every English calendar month and ending on the last day of themonth. 13. In so far as the next contention of waiver of noticewas concerned, this contention was raised before the trial Court andthe same was accepted by the trial Court also and the suit wasdismissed on that ground. Aggrieved plaintiff took it on appeal andduring the pendency of appeal, an interlocutory application wasfiled for reception of additional evidence . Since the defendanttendered rent which was received by the temple, during the pendencyof the suit, without prejudice to the result of the suits, it cannotbe stated as a waiver of notice and hence the first appellate courtwas correct in accepting the said contention. Under suchcircumstances, the judgment of the first appellate court is correctin allowing the appeal and hence the judgment of the first appellatecourt has to be sustained.14. The Court paid its anxious consideration on thesubmissions made and also scrutinized the materials available onrecord.15. It is not the fact in controversy that the appellantwas a tenant in respect of the property which was attached to theplaint in the first suit on a monthly rent of Rs.125/- and that anotice determining the tenancy was sent to the appellant who alsosent a reply to the said notice. In that notice, it was specificallystated that the tenancy was oral and it also started from month tomonth as per English Calendar month. When a reply was given by thetenant, he never denied that either tenancy was oral or there was awritten agreement. The pleadings in the plaint were also to theeffect that tenancy was oral and this was also taken note of by the https://hcservices.ecourts.gov.in/hcservices/ tenant in his written statement. Thus, it would be quite clear thatthe tenancy was oral. What was contended by the appellant before theCourts below and equally here also is there was a waiver noticeunder Section 106 of the Transfer of Property Act on the reason thatduring the pendency of the suit, rental payments were made by theappellant/tenant and they were also received by the temple withoutprejudice to the result of the suits and thus, the waiver noticeunder Section 106 of the Transfer of Property Act is only valid andthe said contention was accepted by the trial Court also. Pendingappeal, at the instance of the temple, an interlocutory applicationwas filed for reception of the additional evidence under Order 41Rule 27 CPC, since those documents were not filed before the trialCourt. The interlocutory application was allowed by the appellateCourt and the receipts were taken as additional evidence . It is alsostated that the rentals received by the temple are without prejudiceto the result of the two suits. Now, at this juncture, thecontentions raised by the appellant have got to be considered.Learned counsel for the appellant would submit that first of all, toreceive additional evidence under Order 41 Rule 27 of CPC it ismandatory that those documents should not have been in the custody ofthe party during the pendency of the suit or even when the matter isdealing by the Court, it could not be produced. But, in the presentcase, though the document in question was in the custody of thetemple, the same was not produced before the trial Court . At thisjuncture, the Court has to point out that in an affidavit filed insupport of the said application for reception of documents before theappellate court, wherein it has been clearly mentioned that withoutprejudice to the pendency of the cases, the rents have been paid bythe defendant and which were also accepted by the plaintiff. Hence,this Court is of the considered opinion that in cases like thisinstead of adopting hyper-technical approach by setting aside andremitting back the matter to the trial Court which would be a secondround of litigation which in the opinion of the Court should not bedone. It is true that the documents were filed before the firstappellate Court and those documents have been received which in theopinion of the Court cannot be adjudicated upon and time was alsogiven to verify the receipts issued pending the suits. Thecontention raised by the learned counsel for the appellant thatnotice under Section 106 of the Transfer of Property Act has beenwaived, in view of the receipt of the rents before filing of the suitand during the pendency of the suit, has got to be legallydiscountenanced. Under these circumstances, the first appellate Courtconsidered the same and granted decree. In so far as the other suitis concerned, it is a matter of encroachment and both the Courts haveconcurrently gave a finding and hence this Court is unable tointerfere with the concurrent findings. Under such circumstances,both the appeals do not merit acceptance and accordingly, they aredismissed. No costs. Consequently, VCMP.NOS.2388 and CMP.No.1335 OF2004 are also dismissed. https://hcservices.ecourts.gov.in/hcservices/

16. Learned counsel for the appellant at this juncturewould submit that the appellant is running a photo-studio in the mainplace and he could not get another accommodation immediately andapart from this, pending proceedings before the Court, a request wasalso made by the appellant to the Hindu Religious and CharitableEndowments for renewal of the the agreement . It is also pendingconsideration with the department according to the counsel for theappellant.17.Learned counsel for the respondent would submit that hehas no objection about the request made by the appellant or withregard to the matter pending in the hands of the Hindu Religious andCharitable Endowment. Hence, the Court is of the considered opinionthat there cannot be any impediment for the Hindu Religious andCharitable Endowments Board to consider such request. In view of theabove, both the appeals are dismissed. Parties shall bear their owncosts. Taking into consideration the running of the photo studio bythe appellant/defendant in the main place and seeking accommodation,one year time is granted, on condition that the tenant has to makepayment of Rs.125/- per month for the occupation during the saidperiod.The judgment made above will not stand in the way of HinduReligious and Charitable Endowments to consider the request of theappellant and to take its decision.VJYSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo.1. The Additional District Munsif Court at Vellore District2. The Principal District Court, Vellore District.2 CCS TO MR.S. KARTHIKAYAN, ADVOCATE SR 63933 & 63932SA.NOS.1863 AND 1864 OF 2003 andVCMP.NOS.2388 and CMP.No.1335 OF 2004MJ(CO)BP