IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 23.06.2009 Coram The Hon'ble Mrs.Justice ARUNA JAGADEESAN C.S.No.543 of 1997 V.X.Joseph .. Plaintiff Vs. 1. Mrs.M.Saraswathi 2. Mr.Manoharan 3. Mr.K.Subramani .. Defendants Suit filed under Order IV Rule 1 of Original Side rules read with Order VII Rule 1 of Code of Civil Procedure. For Plaintiff .. Mr.C.Jose Ukkur For defendants .. Mrs.Chitra Sampath J U D G M E N T The suit is for recovery of possession from the defendants 1 and 2 in respect of Schedule I property and from the third defendant regarding Schedule II property and for damages for use and occupation at the rate of Rs.1,000/-per month for 21 months as regards Schedule I property and at Rs.500/- per month for 21 months as regards Schedule 2 property and also for permanent injunction against the defendants from demolishing and reconstructing or alienating the property. 2. The case of the plaintiff is as follows: (i) The plaintiff is the owner of the front portion of premises No.282, S.N.Chetty Street, facing the street having purchased the same from Dr.Pasupathy in the year 1978 and put up four storeyed building. Behind the said property, in respect of a shed situated to the West in Survey No.282, S.N.Chetty Street originally the plaintiff was the tenant and along with the said superstructure in an area of 475 sq.ft., he claims to have purchased a vacant space of 250 Sq.ft and also towards West a kutcha structure with tiled roof of an area of 525 Sq.ft let out to the 2nd defendant by Dr.Pasupathy, totally 1250 Sq.ft. He entered into an agreement of sale on 14.7.1980 and in pursuance of the said agreement, he paid a certain sum of money as advance. The 2nd defendant undertook to vacate the premises on the completion of the sale by getting Rs.5,000/- from the plaintiff. However, the vendor Dr.Pasupathy failed to complete the same, which necessitated the plaintiff to file a suit in O.S.No.1689 of 1981 on the file of the City Civil Court, Madras for specific performance of the agreement of sale dated 14.7.1980. The suit was dismissed. On an appeal filed by the plaintiff in A.S.No.349 of 1983, he succeeded in getting the relief of specific performance and the judgment in A.S.No.349 of 1983 is Ex.P.1. Inspite of the said decree, Dr.Pasupathy failed to execute the sale deed and so the plaintiff had to file proceedings in E.P.No.400 of 1994 on the file of the City Civil Court, Madras and got the sale deed executed by the Court on 23.11.1995 under Ex.P.2 registered with the Sub Registrar Office, Royapuram as Document No.74 of 1996. (ii) Pending the proceedings, Dr.Pasupathy put up superstructure in the open space in an area of 250 Sq.ft described as Schedule II and let out to one Gerard as Dr.Pasupathy was in dire need of money and adopted various means by putting up sheds and letting out for rent and one such property in 1982 was let out to Gerard. Taking advantage of the financial crunch faced by Dr.Pasupathy, the 2nd defendant created a lease deed allegedly executed by Dr.Pasupathy and settled his leasehold right to his wife, the 1st defendant herein. Based on the said settlement, the 1st defendant maneuvered to get the property tax in her name. On coming to know, a complaint was given by the plaintiff to the Commissioner, Corporation of Chennai and after giving opportunity to the first defendant, the ownership was transferred in the name of the plaintiff, which is comprised in property tax Book Ex.P.3 series. In and around 1982 January, the said Gerard vacated the shed and let out to the 3rd defendant, who was already having his oil shop in the neighbourhood. Based on the documents obtained by the defendants 1 and 2 from Dr.Pasupathy, they claimed title to the Suit Schedule I Property, though they have no manner of right or title to the said property and they were only the tenants under Dr.Pasupathy. Since the defendants were not willing to attorn tenancy under the plaintiff, the latter issued notice dated 22.8.1997 through his counsel under Ex.P.4 to the defendants 1 and 2 and the notice sent to the defendants is Ex.P.5. The defendants 1 and 2 sent reply denying the claim made by the plaintiff under Ex.P.6. The value of the property is more than Rs.30 Lakhs and the defendants have not paid any rent to the plaintiff for years together. (iii) Therefore, the plaintiff claims damages for use and occupation from December 1985. Since the plaintiff is the owner of the entire suit Schedule properties 1 and 2, he has sought for recovery of possession from the defendants 1 and 2 and the defendant 3 respectively. As the plaintiff apprehended that the defendants may demolish the superstructure and erect new structures thereon, he has also prayed for relief of permanent injunction as against the defendants 1 to 3. 3. Though the defendants 1 and 2 filed written statement, they remained absent and set ex-parte. It is their case that the second defendant took on lease on 30.8.1971 a vacant land admeasuring 525 Sq.ft for running a factory on a monthly rent of Rs.150/- under Dr.Pasupathy. Written agreement authorising the second defendant to construct the superstructure was also executed on the said date subsequent to which the second defendant erected a pucca superstructure and was assessed to the Corporation tax. On 29.9.1989, he settled the leasehold rights of the vacant land to his wife, the first defendant herein. The Corporation and the other authorities have assessed the property in her name. The defendants were always ready and willing to attorn tenancy in respect of the vacant land in favouring the plaintiff. As they are the owners of the superstructure, they are entitled to the benefits of the provisions of City Tenants Protection Act. 4. The case of the 3rd defendant is as follows: The 3rd defendant became the tenant under the owner Dr.Pasupathy in respect of the vacant land of 250 Sq.ft in Schedule II of the plaint as early as on 6.8.1974 on a monthly rent of Rs.25/- and an agreement of lease was also executed in this regard. He has been in uninterrupted possession and enjoyment of the property by building superstructure thereon and he had been paying the rent to Dr.Pasupathy without default. He was not aware of any of the proceedings in O.S.No.1689 of 1981 on the file of the City Civil Court, Chennai as he was not made a party to the above proceedings. Therefore, he is not bound by any judgment and decree passed thereon. The plaintiff, who was aware of the tenancy relationship of this defendant with his vendor Dr.Pasupathy ought to have impleaded the 3rd defendant in the earlier proceedings, but having failed to do so, he cannot claim ownership to the superstructure in the proceedings, in which the 3rd defendant was not a party. (ii) Though the third defendant received a notice in the year 1997, he suitably replied, denying the right of the plaintiff to the superstructure. He is not liable to pay any rent to the superstructure and he has expressed his willingness to pay only a sum of Rs.25/- per month towards the rent for the land and attorn his tenancy in favour of the plaintiff only in respect of the vacant land. Since he is the owner of the superstructure, the 3rd defendant is entitled to the benefits of the provisions of City Tenants Protection Act. Further, the suit for recovery of possession without giving notice to this defendant under section 11 of the City Tenants Protection Act is not maintainable and is liable to be dismissed in limine. Therefore, he claims for dismissal of the suit with costs. 5. The following issues were framed for determination: 1." Is the claim of the defendants that they are the tenants in respect of the vacant land of the plaint Schedule mentioned property, true? 2.Whether the defendants are tenants entitled to the rights under the City Tenants Protection Act? 3.Does not the transfer of the alleged lease by the second defendant to the first defendant by way of settlement under Document No.1507 of 1989, disentitle the first defendant from claiming rights under the City Tenants Protection Act? 4.Is the first defendant entitled to purchase the land from the plaintiff and if so what is the area that the defendants would require for their convenient enjoyment of the property? 5.Is the suit against the 3rd defendant bad for want of issuance of notice under section 11 of the City Tenants Protection Act? 6.Are not the defendants liable to vacate and deliver possession of the Schedule mentioned properties? 7.To what reliefs are the parties entitled to? Issue Nos. 1 and 2 6. The plaintiff claims title to the Suit Property mentioned in Schedule I and II of the plaint by way of sale deed executed by the City Civil Court under Ex.P.2. The plaintiff had filed a suit for specific performance with regard to the Suit Property of an extent of 1250 Sq.ft on an agreement of sale dated 14.7.1980 executed by the vendor Dr.Pasupathy. Though the suit was dismissed by the I Additional Judge, City Civil Court in O.S.No.1689 of 1981 dated 15.10.1982, but the appeal filed against the said judgment was allowed in A.S.No.349 of 1983 by this Court on 19.11.1993. Pursuant to the said decree, the sale deed was executed by the City Civil Court on 23.11.1995. According to the plaint averments, at the time when he entered into the agreement for sale, out of 1250 Sq.ft., an extent of 250 Sq.ft., which lie behind the four storey building of the plaintiff was only a vacant space. Towards the West, there was a kutcha superstructure with tiled roof in an area of 525 Sq.ft more fully described as Schedule I and was in occupation of the second defendant. The plaintiff was already the tenant of the next portion of an area of 475 Sq.ft. So, according to the plaintiff, while the lis was pending, the vendor Dr.Pasupathy put up structures in an area of 250 Sq.ft, inducted one Gerard and on his vacation, the 3rd defendant came as a tenant. 7. The case of the plaintiff is that pending suit for specific performance in and around 1982, Dr.Pasupathy put up superstructure adjacent to the plaintiff's four storey building and let it out to one Gerard, who is said to have vacated the said premises in and around January 1982 and the same was let out to the 3rd defendant, which property is described as Schedule II in the plaint. So, the plaintiff claims title to the land and superstructure According to him, the defendants 1 to 3 are only the tenants. On their failure to pay a rent and attorn tenancy in favour of the plaintiff, he has come out with the suit for recovery of possession, damages and also for permanent injunction. 8. As already stated, the defendants 1 and 2 remained ex parte. They had filed their written statement, claiming to have put up superstructure and seeking benefit under the provisions of City Tenants Protection Act. Under Ex.P.2 Sale Deed, the petitioner has purchased the land and the superstructure which was in occupation of the second defendant. There is no contra evidence let in by the defendants 1 and 2 to prove their claim. According to P.W.1, the second defendant in collusion with the vendor Dr.Pasupathy created a lease deed in respect of vacant land and also exhibited several rental receipts. Further, it is stated by P.W.1 that the second defendant executed a settlement deed in favour of the first defendant and got the ownership changed in her name for the purpose of property tax. On coming to know the same, on a complaint given by the plaintiff, the ownership was re-transferred to his name. Ex.P.3 is the said fact. This fact is not also controverted by the defendants as they have not let in any evidence. 9. Though the defendants claim right under section 9 of the City Tenants Protection Act, since there is no evidence either oral or documentary to prove their title to the superstructure, they cannot claim any right under section 9 of the City Tenants Protection Act. In fact P.W.1 has stated in his proof affidavit that the defendants 1 and 2 filed petition claiming right under section 9 of the City Tenants Protection Act. During the trial, Dr.Pasupathy, who was examined as R.W.2 deposed that he had not executed any lease agreement as projected by the defendants 1 and 2 and also disputed the receipts produced by the defendants. It is further stated by P.W.1 that the petition was dismissed after full contest. The defendants 1 and 2 have not denied this aspect in their written statement. That apart, since the plaintiff has proved their title to the land as well as to the superstructure as against the defendants 1 and 2 by letting uncontroverted evidence, the claim of the defendants fails and I hold that they failed to prove that they are the owners of superstructure and their entitlement to the City Tenants Protection Act as well. 10. The case of the 3rd defendant stands on a different footing. It is the specific case of the 3rd defendant both in the written statement and the evidence adduced on his side that he is the lessee under Dr.Pasupathy in respect of the vacant land of 250 Sq.ft alone and the superstructure was put up by him on 6.7.1974 and was paying rent of Rs.25 per month to the vendor Dr.Pasupathy. He has pleaded that he is not aware of the proceedings in O.S.No.1689 of 1981 and was not a party to the said proceedings. In the written statement, he had admitted the receipt of notice issued by the plaintiff and claims to have issued a reply denying the right of the plaintiff to the superstructure. But, while he was examined as D.W.1, he denied having received any notice from the plaintiff and therefore he could not have sent any reply notice to Ex.P.5. 11 The 3rd defendant has not filed any document in support of his claim. It is needless to point out that the plaintiff has to succeed or fail on his own pleading and evidence and not on the basis of failure of the defendant to produce the evidence. Likewise, the plaintiff cannot pick holes in the case of the defendant and succeed on that basis. It is not the defendant, who has come to the court for declaration to prove his title to the superstructure. Therefore, it is for the plaintiff to prove his title to the land as well as to the superstructure. 12 Though the plaintiff claims that the superstructure in the Schedule II property was put up by Dr.Pasupathy as early as in the year 1982 and claims to have purchased the same under Ex.P.2, Sale Deed, but Ex.P.2 refers only two structures in the entire 1250 Sq.ft.which was in existence even at the time of agreement of sale in occupation of the second defendant and the plaintiff. Whereas his evidence is in total contradictory to the pleadings and Ex.P.2, Sale Deed. The plaintiff, who has been examined as P.W.1 has categorically stated that as on the date of the sale deed, there were three sheds. It refers to one superstructure behind the main building of the plaintiff of an area of 250 Sq.ft, in which it is claimed by the plaintiff that the superstructure was put up by Dr.Pasupathy in and around 1982, then towards the West there was another superstructure with tiled roof in an area of 525 Sq.ft occupied by the defendants 1 and 2 and the third one is in an area of 475 Sq.ft, which is in possession of the plaintiff. But the sale deed Ex.P.2 under which the plaintiff claims title refers only two superstructures in the total extent of 1250 Sq.ft. 13 The Schedule of property mentioned in Ex.P.2 is extracted below: "Existing Door No.282 (old No.64/1) Suriynarayana Road, Kasimedu, Royapuram, Madras 600 013, North East Taluk, Tondiarpet, Fort, Block No.5, Resurvey No.3618/20 Part, East to West 50 feet: South to North 25 feet; total 1250 Sq.ft. Including two superstructures." 14 The plaintiff has narrated in his evidence as to how he purchased the entire extent of 1250 Sq.ft from Dr.Pasupathy. According to him, he had come to know that Dr.Pasupathy was selling three sheds and the land on the East, front of the Suit Property abutting the main S.N.Chetty Street and he was approached by the vendor for the said purpose. Admittedly, the negotiation for sale of 1250 Sq.ft. had taken place even before the agreement of sale entered into between the plaintiff and his vendor. It is pertinent to point out that the agreement of sale was entered on 14.7.1980. He has reiterated his previous statement even in his latter part of chief examination that three sheds were in existence, while he negotiated for sale with the vendor. 15 The relevant portion in the proof affidavit is extracted below for better appreciation: "In 1978 when I learnt that Dr.Pasupathy was selling three sheds and the land on the East, front of the Suit Property, abutting the main S.N.Chetty St., I negotiated and purchased it. ... When he had agreed to sell the Suit Properties, the second defendant was having his works in the shed i.e.the plaint 1st Schedule property, but no one was in the shed in the plaint 2nd Schedule property." (emphasis supplied) 16 From the above said evidence, it is clear that the shed, which is now in occupation of the 3rd defendant was already in existence even in the year 1978 or 1980 but it was vacant. This fact is reaffirmed by him in his cross-examination that when he occupied the property in the year 1976, there were three sheds and those three sheds still exist now. So, it clearly establishes that including one under the occupation of the plaintiff, there were three sheds, which only refer to those sheds that are in possession of the defendants 1 and 2 and the 3rd defendant, apart from the one in possession of the plaintiff. It leaves no doubt that even before the agreement of sale by him, when the negotiations were held i.e. in the year 1976, the shed which is in occupation of the 3rd defendant already existed. 17. It is also pertinent to point out that P.W.1 has stated in his cross-examination that he knew the 3rd defendant for the last 35 years and reiterated that he knew him from the date the 3rd defendant came to the Suit Property. According to the 3rd defendant, he put up superstructure in the year 1974, and so the plaintiff had come know him when the 3rd defendant came to the suit property in the year 1974 as a tenant in respect of the land. Therefore, the plea of the plaintiff that the superstructure in occupation of the 3rd defendant was put up only in the year 1982 cannot be sustained. 18. The learned counsel for the plaintiff, however, sought to get over this difficulty by contending that what is stated by the plaintiff, while he was examined as P.W.1 and in the proof affidavit is that in 1978 there were three sheds in the property purchased by him from Dr.Pasupathy, and it relates to 1200 sq.ft on which now four storey building is constructed. Her contention cannot be upheld as P.W.1's evidence is very clear and unambiguous that three sheds referred to by him exist still now. Whereas the superstructure referred to by the learned Advocate for the petitioner was already demolished and four storey building had been constructed. It is nowhere stated by the plaintiff that those three sheds were demolished and four storey building was put up after demolition. In fact P.W.1 clarifies and affirms in his cross-examination that the reference made in Ex.P.2 as regards two sheds is not correct and ought to have been mentioned as three sheds. Therefore, it makes it clear that he referred only to the Suit Property in his evidence and not the property which was already sold to him, on which four storey building had been constructed. 19. The learned counsel for the plaintiff also urged that the plaintiff's evidence that he knew the 3rd defendant for 35 years does not lead to any presumption that the 3rd defendant was in the property from the year 1974. She would contend that the 3rd defendant had oil shop in the neighbouring area and as the 3rd defendant and the plaintiff were good friends, this has been referred to by the plaintiff that he knew him for 35 years. The above said explanation made by the learned counsel for the plaintiff cannot be accepted as the evidence is very clear that P.W.1 had said that he knew the 3rd defendant after the 3rd defendant came to the Suit Property. (emphasis supplied) 20. The aforesaid admissions made by P.W.1 in his chief examination and reiterated in his cross- examination would clinchingly prove that the superstructure was not put up in the year 1982 as claimed by the plaintiff and it existed even before 1976, thus probablising the plea of the 3rd defendant that he put up the superstructure in and around 1974. 21. It is true that evidentiary admission cannot be the conclusive proof of the facts admitted and they may be explained or shown to be wrong by the party concerned. But, however, unless they are shown or explained to be wrong, they can be taken as efficacious proof of the facts admitted. Unless the person admitting the fact, on the principle that the party himself admits to be true, it may reasonably be presumed to be true and until the presumption is rebutted, the fact admitted must be taken to be established. It is settled law that admission is the best evidence which can be relied upon by the opposite party, though not conclusive but is decisive on matter unless specifically withdrawn or proved erroneous. 22. In the present case, the plaintiff has not only made those admission but also reaffirmed it in his latter portion of proof affidavit and further in his cross-examination. It is therefore too late for the plaintiff to wriggle out of the same by giving explanation in written arguments. It cannot be said that the plaintiff had inadvertently affirmed the same and it was only the conscious admission. He has repeatedly admitted the same in his cross-examination as stated supra. Therefore, the claim of plaintiff that he is the owner of the superstructure falls to the ground. On the other hand the 3rd defendant has established his plea that the superstructure was put up by him as early as in 1974. Therefore, I hold that the 3rd defendant is the tenant in respect of the vacant land alone and he has proved that he is the owner of the superstructure and therefore is entitled to the benefits provided under the City Tenants Protection Act. 23. As regards the defendants 1 and 2, they have failed to prove their claim that they are the owners of the superstructure, hence they are not entitled to the rights under the City Tenants Protection Act. Issue Nos. 1 and 2 are answered accordingly. ISSUE NOS.3 & 4 23. As already held in Issue Nos.1 and 2, the defendants 1 and 2 are not entitled to the owners of the superstructure and they cannot claim to the rights under the City Tenants Protection Act. Admittedly the second respondent has settled the leasehold rights of the Suit Schedule I property in favour of his wife, the first defendant herein. Based on the said settlement, the Corporation ownership has been transferred in her name and on coming to know the same, a complaint had been given by the plaintiff to the Commissioner, Corporation of