IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24.08.2009 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.1062 of 2000 & C.M.P.Nos.4737, 12791, 6055,16979 of 2002 and 17748 of 2004 1.Mrs.Savithri Padmanabhan (died) 2.P.Geetha 3.P.Shanthi 4.P.Leela 5.P.Vijayalakshmi 6.P.Gowri 7.P.Chandra 8.P.Janaki Appellants 3 to 8 brought on record as L.Rs of the deceased 1st appellant vide order of this court dated 31.01.05 made in C.M.P.No.15947/04. .. Appellants/ (Defendants) Vs M.Rajendran .. Respondent/ (Plaintiff) SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 28.04.2000 made in A.S.No.21 of 2000 on the file of IV Additional City Civil Judge, Chennai confirming the Judgment and Decree dated 05.10.1999 made in O.S.No.7915 of 1997 on the file of XVIII Assistant City Civil Judge, Chennai. For Appellants : Mr.T.R.Rajagopalan, Sr.Counsel For Mr.Navaneetha Krishnan For Respondent : Mr.T.V.Ramanujam, Sr.Counsel for Mr.T.V.Krishnamachari https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT 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 https://hcservices.ecourts.gov.in/hcservices/ 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 regard. The leave and licence was granted because late P.Padmanabhan was moving closely with late Dr.M.G.Ramachandran and his family. Late P.Padmanabhan during his life time, never claimed any interest in the property and never claimed any leasehold right, because, he knew that it was only permissive occupation by way of leave and license and nothing else. Even after the demise of Dr.M.G.Ramachandran, late P.Padmanabhan admitted the possession of permissive occupation by way of leave and licence and he never made any other false claim. On the demise of Dr.M.G.Ramachandran on 24.12.1987, the leave and licence automatically came to an end. Since late P.Padmanabhan was closely moving with the family of late Dr.M.G.Ramachandran and the defendants, being ladies, wanted some time to remove the cattle and their belongings, the plaintiff gave them sufficient time, but, taking advantage of the goodness and courtesy shown to them, the defendants started claiming that they are running a diary farm under the name and style of 'P.M. Enterprises'. The defendants started misusing the permission given to them. The entry inside the compound wall was only via main gates and can be only with the permission of the plaintiff. If the main gates are closed, the defendants cannot enter the property at all. https://hcservices.ecourts.gov.in/hcservices/ (iii) After August 1997, the defendants started misusing the leave and licence. They started dumping cow-dung even outside the area covered by leave and licence, making the entire area nasty. They started dumping the cow-dung and waste water. The dumping of cow-dung also resulted in the breeding of mosquitoes resulting in health hazard. (iv) In view of the attitude adopted by the defendants, the plaintiff revoked the licence by his letter dated 18.9.1997. The defendants were called upon to remove their things by 30.10.1997 and it was made clear that after 30.10.1997, the defendants will have no right to enter the compound and that they will not be allowed to enter the compound. The defendants sent a reply dated 24.10.1997 through their counsel. In their reply notice, the defendants stated that late P.Padmanabhan was the lessee of the land and that late Dr.M.G.Ramachandran, leased out the land to late P.Padmanabhan, which is absolutely false. The defendants in their reply notice have also stated that late P.Padmanabhan put up structures in the vacant land at his own costs, which is also false. The plaintiff sent a rejoinder dated 4.11.1997 through his lawyer. (v) Late P.Padmanabhan, during his life time, never whispered that he was a tenant and never claimed tenancy. Even in the will of late Dr.M.G.Ramachandran, there is no reference to any tenancy in favour of late P.Padmanabhan. Even in the telegram dated 15.8.1997 sent by the defendants, the defendants never came forward with a story of lease or tenancy. The defendants filed a suit in O.S.No.7772 of 1997 on the file of XVIII Assistant Judge, City Civil Court, Madras for injunction. Since the defendants failed to vacate and deliver the possession to the plaintiff, the plaintiff filed the suit. 5. The brief case of the defendants are as follows: (i) According to the defendants, they are in possession and enjoyment of about 90 cents of land as lessees for the past about 30 years. The land in R.S. No.4275/5 is a Government poromboke land. The defendants are in possession and enjoyment of about 50 cents of land in R.S.No.4275/5, which is a Government Poromboke land. (ii) According to the defendants, late Dr.M.G.Ramachandran, leased out about 90 cents of land to late P.Padmanabhan in the year 1967 and allowed him to put up a block of buildings consisting of three rooms used as office rooms and one residential portion. Late Dr.M.G.Ramachandran also allowed late P.Padmanabhan to construct one go-down, seven cattle sheds and one shed for storing cattle feed. These constructions were put up by late P.Padmanabhan at his own costs. Late P.Padmanabhan purchased the cows with his money and was running a Dairy Farm in the name and style of "Makkal Thilagam https://hcservices.ecourts.gov.in/hcservices/ Dairy Farm" from 1967 onwards. The averment that late Dr.M.G.Ramachandran gave leave and licence to late P.Padmanabhan is not correct. During the life time of P.Padmanabhan, nobody questioned his leasehold rights. (iii) It is well known fact that late P.Padmanabhan was running a Dairy Farm in the suit premises from 1967 and after his demise, the defendants are continuing the dairy farm and there are more than 150 cows. The vacant land of 90 cents was leased out by late Dr.M.G.Ramachandran on behalf of Sathya Studio to late P.Padmanabhan for running a dairy farm. The defendants denied that the entire compound has two gates and both the gates are under the exclusive control of the plaintiff and if the main gates are closed, the defendants can not enter the property at all. The Plaintiff leased out some portions in the suit property to different tenants. The plaintiff cannot file a suit to evict the defendants from the occupation of Government Poromboke land. The defendants are in occupation of 50 cents of Government Poromboke land in R.S.No.4275/5 and storing cow-dung in a portion of the said 50 cents of Government land. The defendants are periodically removing the cow- dung and they are not polluting the ground water by dumping cow-dung and waste water. Late Dr.M.G.Ramachandran did not want to get back the land from late P.Padmanabhan. Late P.Padmanabhan and the defendants have been in possession of the suit property as lawful tenants for more than 30 years. (iv) The plaintiff cannot maintain the suit for mandatory injunction and permanent injunction against the defendants, who are lawful tenants. It is orally agreed between Dr.M.G.Ramachandran and late P.Padmanabhan that instead of paying rent by cash, he should supply sufficient quantity of milk for the purpose of Sathya Studio as and when required. Late P.Padmanabhan was supplying milk to Sathya Studio during his life time and that practice is being continued by the defendants even now. Therefore, there is no arrears of rent till date. Therefore, the defendants prayed for dismissal of the suit. 6. The case of the plaintiff in his reply statement is as follows: (i) Sathya Studio is in possession of land in R.S.No.4275/5 measuring about 40 grounds as lessee from the Government. The defendants are not in possession of 50 cents of land in R.S.No.4275/5 of Government Poramboke land. Even the Revenue Authorities after physical inspection and survey, found that the defendants are not in possession of Government Poramboke land. Both the main gates are under the control of the plaintiff and no one can enter the compound, if two gates are closed. The defendants are trying to improve their case from time to time because there is no truth in their claim. https://hcservices.ecourts.gov.in/hcservices/ (ii) The allegation that Dr.M.G.Ramachandran leased out 90 cents of land to late P.Padmanabhan in the year 1967 and allowed him to put up a block of buildings consisting of three rooms used as office rooms and one residential portion and also allowed late P.Padmanabhan to construct one go-down, seven cattle sheds and one shed for storing catle feed are all false; that there was some oral agreement between late Dr.M.G.Ramachandran and late P.Padmanabhan that instead of payment of cash rent, he should supply sufficient quantity of milk for the purpose of Sathya Studio as and when required is false. There was no such oral agreement. There was no tenancy and there was no rent. Even the letter dated 8.9.1977 from Indian Overseas Bank filed by the defendants in O.S.No.1772 of 1997 speaks of sale of entire milk to hotels, which will disprove the case of the defendants. 7. Before the trial court, the plaintiff was examined as P.W.1 and 20 documents Exs. A1 to A20 were marked. On the side of the defendants, 3 witnesses were examined and 16 documents Exs. B1 to B16 were marked. The court documents were marked as Exs.C1 to C3. 8. The trial court, after taking into consideration the oral and documentary evidences of both the parties decreed the suit as prayed for. 9. Aggrieved over the judgment and decree of the trial court, the defendants filed appeal in A.S.No.21 of 2000 on the file of IV Additional Judge, City Civil Court, Chennai and the lower appellate court after taking into consideration the materials available on record, confirmed the judgment and decree of the trial court and dismissed the appeal. 10. Aggrieved over the judgments and decrees of the courts below, the defendants have filed the above second appeal. 11(a). C.M.P.No.4737 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to receive Form No.32 filed with the Registrar of Companies, Madras and the resolution passed by Sathya Studios (P) Limited as additional documents in the above second appeal. (b) According to the respondent, Form No.32 is the public document available with the Registrar of Companies. Though the appellants did not question the authority of the plaintiff before the courts below, the respondent is producing the same in the second appeal to avoid technical objections. The respondent has also filed the resolution dated 1.11.1997 authorising the plaintiff to file the suit. (c). According to the appellant, the documents which is now https://hcservices.ecourts.gov.in/hcservices/ sought to be produced is only a copy of Form No.32 dated 5.7.1991 and the copy of the resolution; that the alleged resolution authorising the plaintiff to file a suit is a creation of the respondent for the purpose of this proceedings and the non-filing of the same either at the time of institution of the suit or at the time of trial has not been properly explained. The resolution now sought to be produced is created for the purpose of this case and the resolution sought to be produced will not cure the defects. Therefore,the respondent cannot be allowed to bring these documents at the belated stage in the second appeal. Therefore, appellants prayed for dismissal of the above miscellaneous petition. 12.(a) C.M.P.No.12791 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to receive the following documents: (i)Certified copy of Form No.23 filed with the Registrar of Companies; (ii)certified copy of Annual Return made upto 30.9.1997 filed with Registrar of Companies; (iii)certified copy of Annual Return made upto 30.9.1999 filed with Registrar of Companies; (iv)Memorandum and Articles of Association of Sathya Studio (P) Limited as additional documents in the above second appeal. (b). According to the respondent, he is filing these additional documents to show that he is continuing as Managing Director of Sathya Studios (P) Limited. Though there was no issue in this regard and the appellants are raising this point before this court, the respondent is filing these documents as additional evidence in order to avoid technical objections. (c). According to the appellants, mere production of the copy of the Memorandum and Articles of Association will not add credence to his case in any way. These documents will have no relevance and in no way improve the case of the respondent, when the suit itself has been filed in his individual capacity and the mere description of status as executor of the Will of late Dr.M.G.Ramachandran and as the Managing Director of M/s. Sathya Studios (P) Limited will not cure the defects. Therefore, appellants prayed for dismissal of the above miscellaneous petition. 13(a) C.M.P.No.17748 of 2004 in S.A.No.1062 of 2000 has been filed by the respondent to receive the resolution dated 20.11.2002 passed by the Sathya Studios (P) Limited as additional document in the above second appeal. (b). According to the respondent, a technical objection was raised by saying that the plaintiff should be "Sathya Studios (P) Limited" and not "M.Rajendran, Managing Director of Sathya Studios https://hcservices.ecourts.gov.in/hcservices/ (P) Limited". It is a curable one in view of Order I Rule 10 (1) of C.P.C. To avoid any technical objection, the Board has also passed resolution dated 20.11.2002 ratifying all the actions taken by M.Rajendran, Managing Director. The respondent is filing the said resolution as additional document. (c). The appellants did not file any counter in the above civil miscellaneous petition. 14(a). C.M.P.No.6055 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to amend the short cause title and long cause title in the plaint in O.S.No.7915 of 1997. (b). According to the respondent, a technical objection is sought to be raised now that the cause title should be "Sathya Studio represented by its Managing Director". To avoid any technical objection, the above civil miscellaneous petition is filed to amend the long and short cause title of the plaint in O.S.NO.7915 of 1997. (c). According to the appellants, the petition to amend the cause title lacks bonafide and not maintainable. The respondent is trying to introduce a new cause of action under the guise of amending the cause title. If the amendment now proposed is allowed, it would cause great injury and prejudice to the appellants. Therefore, appellants prayed for dismissal of the above civil miscellaneous petition. 15(a). C.M.P.No.16979 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to amend the plaint in O.S.No.7915 of 1997 by adding one more paragraph in the plaint and correct the registered addresses of the parties in the plaint. (b) According to the respondent, the proposed amendment is fully consequential to the prayer sought for in C.M.P.No. 6055 of 2002. The amendment is necessary to meet the technical objections raised by the appellants. (c). The appellants did not file any counter in the above civil miscellaneous petition. 16. Heard Mr.T.R.Rajagopalan, learned senior counsel appearing for the appellants and Mr.T.V.Ramanujam learned senior counsel appearing for the respondent. 17. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- " (i) Is not the judgment of the lower court vitiated for non-framing of the points for determination in the appeal as held by this Hon'ble https://hcservices.ecourts.gov.in/hcservices/ Court in 1996(1) CTC 26 and page 559? (ii) Is the suit at the instance of Thiru M.Rajendran for mandatory injunction and recovery of possession maintainable when admittedly the property is owned by a private limited company M/s. Sathya studios (P) Limited a company incorporated under the Indian Companies Act 1956? (iii) Are not decisions of the courts below vitiated for non-consideration of the material evidence which establish all the ingredients of a lease in favour of late Mr.Padmanabhan and are the courts below right in deciding the said issue merely based upon the non-mentioning of the lessees name in the Will of late Dr.M.G.Ramachandran? " Apart from the above three substantial question of law, learned senior counsel appearing for the appellant also raised the following additional substantial question of law :- "Are the courts below right in decreeing the suit when there is absolutely no evidence of any licence or permission having been given by M/s.Sathya studios (P) Limited to late Padmanabhan and is not the judgment vitiated on that account? 18. Mr.T.R.Rajagopalan Learned senior counsel appearing for the appellants contended that the judgment of the lower appellate court is vitiated for non-framing of the points for determination in the appeal; that at the instance of the plaintiff, the suit for mandatory injunction and recovery of possession is not maintainable when the properties is owned by a private limited company namely, M/s. Sathya Studios (P) Limited; that there is absolutely no evidence with regard to leave and licence as alleged by the respondent/plaintiff; that the appellants are in possession of the suit property only as a lessees. 19. Learned senior counsel further contended that late Dr.M.G.Ramachandran was holding only shares of M/s.Sathya Studios (P) Limited; that late Dr.M.G.Ramachandran was not the owner of the suit property and that M/s. Sathya Studio (P) Limited is the actual owner of the suit property. Since the respondent had filed the suit in his individual capacity, the suit is not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 20. Countering the submissions made by the learned senior counsel appearing for the appellants, Mr.T.V.Ramanujam, learned counsel appearing for the respondent submitted that since the lower appellate court has independently considered all the issues, omission to frame points for determination will not render decree of the lower appellate court invalid; that since the appellant/defendant was put in possession of the suit property by late Dr.M.G.Ramachandran as a lessee, the suit for mandatory injunction against the lessee is maintainable and that Sathya Studio (P) Limited has not put the appellants/defendants into possession of the suit property; that there is sufficient evidence to prove that the possession of the appellants/defendants is only as leave and licence; that there is no evidence on the side of the appellants to prove that the suit property was leased out to late P.Padmanabhan by late Dr.M.G.Ramachandran. 21. On a careful consideration of the materials available on record and the submissions made by the learned senior counsel appearing for the appellants and the learned senior counsel appearing for the respondent, it could be seen that the appellants were put in possession of the suit property in the year 1967 by late Dr.M.G.Ramachandran to have some cattle. Though the case of the respondent is that possession of late P.Padmanabhan was by way of leave and licence, the appellants case is that their occupation of the suit property is as a lessee. The contention of the appellants that late Dr.M.G.Ramachandran was not the owner of the suit property and that it is only M/s.Sathya Studio (P) Limited is the owner of the suit property, therefore, the suit filed by the respondent as executor of the will of Dr.M.G.Ramachandran and as Managing Director, Sathya Studios (P) Limited, is not maintainable. 22. Late Dr.M.G.Ramachandran died on 24.12.1987. By a registered will dated 18.01.1987, late Dr.M.G.Ramachandran appointed the respondent as executor of the will and there is also a recital in the said will bequeathing the shares held by alte Dr.M.G.Ramachandran to All India Dravida Munnetra Kazhagam founded by him and that the party shall take possession of the Sathya Studio and all the articles therein and manage the same and utilise the income therefrom for the party work. In the event of split in the party or dissolution of the party, the executor shall take over the https://hcservices.ecourts.gov.in/hcservices/ shares and management of the Sathya Studio company and utilise the income for meeting the expenses of the trust named as "M.G.Ramachandran Home for Deaf and Dumb". 23. Admittedly, there was a split in the party and the executor namely, the respondent took charge of the management and Sathya Studios (P) Limited. Though the appellants have contended that the respondent has no right to file the suit and it is only Sathya Studio (P) Limited which has got right to file the suit, there is absolutely nothing on record to show that the appellants were put into possession of the suit property by Sathya Studios (P) Limited. 24. Even in Ex.A11 reply notice dated 24.10.1997 sent by the appellants to the respondent, they did not dispute the right of the respondent to issue the notice. Further, they have also admitted that late Dr.M.G.Ramachandran being most generous person allowed late P.Padmanabhan to occupy