Nagarajan2.N.Chandra.. v. Arunachalam..

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDated: 21.07.2011C o r a mThe HONOURABLE MR.JUSTICE M.DURAISWAMYS.A (MD) No.257 of 2011 andM.P (MD) No.1 of 20111.Nagarajan2.N.Chandra.. Appellants/Plaintiffs Vs.Arunachalam.. Respondent/DefendantPrayer:- Second Appeal has been filed under Section 100 of CivilProcedure Code against the Judgment and decree of the lower AppellateCourt, dated 19.01.2011 made in A.S.No.45 of 2009 on the file of theCamp Sub-Judge, Madurai, reversing the judgment and decree of thetrial Court, dated 16.02.2009 made in O.S.No.197 of 2001 on the fileof the District Munsif Court, Thirumangalam. For Appellants: Mr.R.SubramanianFor Respondent: Mr.R.G.Shankar GaneshJUDGMENT The above second appeal arises against the judgment anddecree, dated 19.01.2011 made in A.S.No.45 of 2009 on the file of theSub-Court, Madurai, reversing the judgment and decree of the trialCourt, dated 16.02.2009 made in O.S.No.197 of 2001 on the file of theDistrict Munsif Court, Thirumangalam.2. The plaintiffs in the suit are the appellants and therespondent was the defendant in the suit. The plaintiffs filed thesuit in O.S.No.197 of 2001 on the file of the District Munsif Court,Thirumangalam for mandatory injunction directing the defendant tosurrender possession of the suit premises and to pay past damages ofRs.12,000/-.3. The brief facts of the plaintiffs in the suit are asfollows:-According to the plaintiffs, the suit premises belong to theplaintiffs. The second plaintiff is the wife of the first plaintiff.The first plaintiff is a Junior Telecom Officer at Virudhunagar andthe defendant is a Security in the Telecom Department, Virudhunagar.Originally, the defendant was residing at Tirumangalam. OneS.Natarajan was in occupation of the suit premises. After, the said https://hcservices.ecourts.gov.in/hcservices/ 2S.Natarajan vacated the premises by the end of November 1999, thedefendant was requested by the first plaintiff to look after the suitpremises. The defendant requested the first plaintiff to lease thesuit premises to him on a monthly rent of Rs.1,000/-. The firstplaintiff also agreed for the same and the tenancy commenced fromDecember 1999. The defendant paid rent up to the end of April 2000.The defendant informed the first plaintiff that he would vacate thepremises on 30th May 2000. On 24.05.2000, the plaintiffs executed aPower of Attorney in favour of the defendant to look after thebuilding and lease it out. The defendant requested the firstplaintiff to permit him to stay in the premises without rent and toldhim that as soon as he is able to fix a tenant for the suit premises,he would surrender the possession. The plaintiffs permitted thedefendant to occupy the premises without rent. The defendant did notfix up any tenant. On 04.09.2000, the plaintiffs cancelled the Powerof Attorney executed in favour of the defendant. The plaintiffsrevoked the permission and requested the defendant to vacate andsurrender the possession to him. But the defendant did not surrenderthe possession. On 26.03.2001, the plaintiffs issued lawyer's noticeto the defendant calling upon him to vacate and surrender possessionof the premises within 15 days and also to pay damages at the rate ofRs.1,000/- per month from 01.06.2000. In these circumstances, theplaintiffs filed the suit.4. The brief facts of the defendant in the suit are asfollows:-According to the defendant, the suit premises was not leasedout to him and that he was not permitted to stay in the suit premiseswithout rent on his request. The defendant is not in possession ofthe property on the permission by the first plaintiff. It is notlicence. As such there is no meaning that the plaintiffs have revokedthe permission. There is no obligation on the part of the defendantto surrender the possession of the suit property to the plaintiffsand as such no relief can be granted to the plaintiffs under Section39 of Specific Relief Act. The plaintiffs possession over the suitproperty is not unlawful. In these circumstances, the defendantprayed for dismissal of the suit.5. Before the trial Court, on the side of the plaintiffs, twowitnesses were examined and eight documents Exs.A1 to A8 were markedand on the side of the defendant, three witnesses were marked andeight documents Ex.B1 to B8 were marked. 6. The trial Court after taking into consideration the oraland documentary evidence of both sides decreed the suit. Aggrievedover the judgment and decree of the trial Court, the defendantpreferred an appeal in A.S.No.45 of 2009 on the file of the Sub-Court, Madurai and the lower Appellate Court after taking intoconsideration the case of both sides reversed the judgment and decreeof the trial Court and allowed the appeal. Aggrieved over thejudgment and decree of the lower Appellate Court, the plaintiffs havefiled the above second appeal. https://hcservices.ecourts.gov.in/hcservices/

37. The appellants have raised the following substantialquestions of law in the second appeal:-“a) It is not the finding of the lower AppellateCourt that the defendant's possession is that of alessee, perverse in the wake of specific case of thedefendant in the pleading and evidence that he was not alessee?b) Whether in law has not the lower AppellateCourt erred in misconstruing the pleadings, which hasresulted in perverse finding?c) Has not the lower Appellate Court failed tosee that the defendant set up an oral agreement of sale,which has not been proved and consequently thedefendant's possession is only that of a licensee?d) Whether in law is not the lower AppellateCourt wrong in holding that the suit for mandatoryinjunction is not maintainable overlooking the import ofSection 39 of Specific Relief Act and the law laid downin AIR 1985 SC Page 857 namely the suit for mandatoryinjunction is in effect one for the possession?”8. Heard Mr.R.Subramanian, learned counsel appearing for theappellants and Mr.R.G.Shankar Ganesh, learned counsel appearing forthe respondent.9. On a careful consideration of the materials available onrecord and the submissions made by both the counsel, it could be seenthat there is no dispute that the appellants/plaintiffs are theowners of the suit property. According to the appellants/plaintiffsthe respondent was put in possession of the property as a tenant inDecember 1999 on a monthly rent of Rs.1,000/-. Thereafter, on24.05.2000, the appellants executed a Power of Attorney, which ismarked as Ex.A1, in favour of the respondent/defendant to look afterthe building and lease it out to a tenant. Further, according to theappellants the defendant requested the first appellant/firstplaintiff to permit him to stay in the premises without rent until atenant is fixed for the suit premises. Therefore, the appellantspermitted the respondent to put in possession of the suit premises.According to the appellants, the possession of the respondent is as apermissive occupant. Since the respondent did not fix a tenant in thesuit premises, the appellants cancelled the Power of Attorney underEx.A2-Cancellation Deed, dated 04.09.2000. 10. The respondent in a written statement has not stated underwhat capacity he is in possession of the suit premises. He denied hispossession both as a tenant as well as a licensee. Since therespondent has not disputed the title of the appellants, he couldhave stated under what capacity he is in possession of the property.But he failed to state anything about his status of possession. https://hcservices.ecourts.gov.in/hcservices/ 4Further, in his evidence he has stated that there was an oral SaleAgreement between himself and appellants/plaintiffs and on the basisof the said agreement, he has also paid Rs.50,000/- to theappellants/plaintiffs towards advance. However, there is no pleadingto that effect in the written statement. Therefore, it cannot berelied upon and it is liable to be rejected and the trial Courtrightly rejected the said contention. The stand taken by therespondent would only prove that he is not sure about under whatcapacity he is holding the possession of the suit premises. Theappellants also sent Ex.A5-lawyer's notice, dated 26.03.2001 to therespondent informing about the revocation of the permission grantedto him and called upon the respondent to vacate and hand over thepremises within 15 days and also to pay damages at the rate ofRs.1,000/- per month from 01.06.2000. Though the respondent receivedthe lawyer notice, he did not send any reply. If the contentionraised by the respondent that he is holding the possession of thesuit premises in different capacity is true, he would have sent replyto Ex.A5-Lawyer's Notice. But for the reasons best known to him hedid not send any reply to Ex.A5-Lawyer's notice. The lower AppellateCourt has come to the conclusion that the possession of the defendantis that of a lessee. When the respondent himself has stated that heis not a lessee in respect of the suit premises, the lower AppellateCourt ought not to have come to the conclusion that he is a lessee inrespect of the suit premises. The lower Appellate Court also heldthat the suit for mandatory injunction is not maintainable. From thematerials available on record and from the evidence of DW.1, it isclear that the possession of the respondent is only as a licensee.When the possession of the respondent is only as a licensee the suitfiled by the appellants for mandatory injunction is maintainableunder Section 39 of the Specific Relief Act. 11. The learned counsel appearing for the respondent insupport of his contention relied upon the judgment in DeltaInternational Limited Vs. Shyam Sundar Ganeriwalla and anotherreported in AIR 1999 SCC 2607, wherein the Honourable Apex Court heldthat to find out whether the document creates lease or license realtest is to find out 'the intention of the parties', keeping in mindthat in cases were exclusive possession is given, the line betweenlease and license is very thin. The Honourable Apex Court furtherheld that in the absence of a written document and when somebody isin exclusive possession with no special evidence how he got in, theintention is to be gathered from the other evidence which may beavailable on record, and in such cases exclusive possession of theproperty would be most relevant circumstance to arrive at theconclusion that the intention of the parties was to create a lease. In the case on hand, the respondent/defendant himself in his writtenstatement has stated that he is not a tenant in respect of the suitpremises. He also stated that he is not a licensee in respect of thesuit premises. When he himself had stated that he is not a tenant inrespect of the suit premises, the proposition of law laid down by theHonourable Apex Court by the above referred judgment is notapplicable to the facts and circumstances of the case on hand. https://hcservices.ecourts.gov.in/hcservices/

512. As already stated, the respondent's possession is that ofa licensee. The lower Appellate Court failed to take intoconsideration the written statement filed by the respondent whilecoming to the conclusion that he is a lessee in respect of the suitpremises. The lower Appellate Court ought not to have reversed thejudgment and decree of the trial Court. The judgment and decree ofthe lower Appellate Court are liable to be set aside.13. So far as with regard to the damages of Rs.1,000/- permonth from 01.06.2000, the trial Court has rightly come to theconclusion that the respondent is liable to pay the damages atthe rate of Rs.1,000/-. Since it is not in dispute that therespondent is in possession of the property without paying rent, thetrial Court rightly decreed for damages. The appellants/plaintiffsare entitled to a decree as decreed by the trial Court. 14. In these circumstances, the questions of law a, b and dare decided in favour of the appellants/plaintiffs. The judgment anddecree of the lower Appellate Court are set aside. The judgment anddecree made in O.S.No.197 of 2001 on the file of the District MunsifCourt, Tirumangalam are restored. Accordingly, the second appeal isallowed. However there shall be no order as to costs. Sd/-Assistant Registrar (CO)/True Copy/Sub Assistant Registrar To1.The Sub-Judge, Madurai.2.The District Munsif, Thirumangalam. +1 CC to Mr.R.Subramanian, Advocate (SR.No.24085) +1 CC to Mr.R.G.Shankar Ganesh, Advocate (SR.No.24031)Judgment made inS.A (MD) No.257 of 201121.07.2011psNSV/5.8.11/5P/5C