1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 21.07.2011 C o r a m The HONOURABLE MR.JUSTICE M.DURAISWAMY S.A (MD) No.257 of 2011 and M.P (MD) No.1 of 2011 1.Nagarajan 2.N.Chandra .. Appellants/Plaintiffs Vs. Arunachalam .. Respondent/Defendant Prayer:- Second Appeal has been filed under Section 100 of Civil Procedure Code against the Judgment and decree of the lower Appellate Court, dated 19.01.2011 made in A.S.No.45 of 2009 on the file of the Camp Sub-Judge, Madurai, reversing the judgment and decree of the trial Court, dated 16.02.2009 made in O.S.No.197 of 2001 on the file of the District Munsif Court, Thirumangalam. For Appellants : Mr.R.Subramanian For Respondent : Mr.R.G.Shankar Ganesh JUDGMENT The above second appeal arises against the judgment and decree, dated 19.01.2011 made in A.S.No.45 of 2009 on the file of the Sub-Court, Madurai, reversing the judgment and decree of the trial Court, dated 16.02.2009 made in O.S.No.197 of 2001 on the file of the District Munsif Court, Thirumangalam. 2. The plaintiffs in the suit are the appellants and the respondent was the defendant in the suit. The plaintiffs filed the suit in O.S.No.197 of 2001 on the file of the District Munsif Court, Thirumangalam for mandatory injunction directing the defendant to surrender possession of the suit premises and to pay past damages of Rs.12,000/-. 3. The brief facts of the plaintiffs in the suit are as follows:- According to the plaintiffs, the suit premises belong to the plaintiffs. The second plaintiff is the wife of the first plaintiff. The first plaintiff is a Junior Telecom Officer at Virudhunagar and the defendant is a Security in the Telecom Department, Virudhunagar. Originally, the defendant was residing at Tirumangalam. One S.Natarajan was in occupation of the suit premises. After, the said https://hcservices.ecourts.gov.in/hcservices/ 2 S.Natarajan vacated the premises by the end of November 1999, the defendant was requested by the first plaintiff to look after the suit premises. The defendant requested the first plaintiff to lease the suit premises to him on a monthly rent of Rs.1,000/-. The first plaintiff also agreed for the same and the tenancy commenced from December 1999. The defendant paid rent up to the end of April 2000. The defendant informed the first plaintiff that he would vacate the premises on 30th May 2000. On 24.05.2000, the plaintiffs executed a Power of Attorney in favour of the defendant to look after the building and lease it out. The defendant requested the first plaintiff to permit him to stay in the premises without rent and told him that as soon as he is able to fix a tenant for the suit premises, he would surrender the possession. The plaintiffs permitted the defendant to occupy the premises without rent. The defendant did not fix up any tenant. On 04.09.2000, the plaintiffs cancelled the Power of Attorney executed in favour of the defendant. The plaintiffs revoked the permission and requested the defendant to vacate and surrender the possession to him. But the defendant did not surrender the possession. On 26.03.2001, the plaintiffs issued lawyer's notice to the defendant calling upon him to vacate and surrender possession of the premises within 15 days and also to pay damages at the rate of Rs.1,000/- per month from 01.06.2000. In these circumstances, the plaintiffs filed the suit. 4. The brief facts of the defendant in the suit are as follows:- According to the defendant, the suit premises was not leased out to him and that he was not permitted to stay in the suit premises without rent on his request. The defendant is not in possession of the property on the permission by the first plaintiff. It is not licence. As such there is no meaning that the plaintiffs have revoked the permission. There is no obligation on the part of the defendant to surrender the possession of the suit property to the plaintiffs and as such no relief can be granted to the plaintiffs under Section 39 of Specific Relief Act. The plaintiffs possession over the suit property is not unlawful. In these circumstances, the defendant prayed for dismissal of the suit. 5. Before the trial Court, on the side of the plaintiffs, two witnesses were examined and eight documents Exs.A1 to A8 were marked and on the side of the defendant, three witnesses were marked and eight documents Ex.B1 to B8 were marked. 6. The trial Court after taking into consideration the oral and documentary evidence of both sides decreed the suit. Aggrieved over the judgment and decree of the trial Court, the defendant preferred an appeal in A.S.No.45 of 2009 on the file of the Sub- Court, Madurai and the lower Appellate Court after taking into consideration the case of both sides reversed the judgment and decree of the trial Court and allowed the appeal. Aggrieved over the judgment and decree of the lower Appellate Court, the plaintiffs have filed the above second appeal. https://hcservices.ecourts.gov.in/hcservices/ 3 7. The appellants have raised the following substantial questions of law in the second appeal:- “a) It is not the finding of the lower Appellate Court that the defendant's possession is that of a lessee, perverse in the wake of specific case of the defendant in the pleading and evidence that he was not a lessee? b) Whether in law has not the lower Appellate Court erred in misconstruing the pleadings, which has resulted in perverse finding? c) Has not the lower Appellate Court failed to see that the defendant set up an oral agreement of sale, which has not been proved and consequently the defendant's possession is only that of a licensee? d) Whether in law is not the lower Appellate Court wrong in holding that the suit for mandatory injunction is not maintainable overlooking the import of Section 39 of Specific Relief Act and the law laid down in AIR 1985 SC Page 857 namely the suit for mandatory injunction is in effect one for the possession?” 8. Heard Mr.R.Subramanian, learned counsel appearing for the appellants and Mr.R.G.Shankar Ganesh, learned counsel appearing for the respondent. 9. On a careful consideration of the materials available on record and the submissions made by both the counsel, it could be seen that there is no dispute that the appellants/plaintiffs are the owners of the suit property. According to the appellants/plaintiffs the respondent was put in possession of the property as a tenant in December 1999 on a monthly rent of Rs.1,000/-. Thereafter, on 24.05.2000, the appellants executed a Power of Attorney, which is marked as Ex.A1, in favour of the respondent/defendant to look after the building and lease it out to a tenant. Further, according to the appellants the defendant requested the first appellant/first plaintiff to permit him to stay in the premises without rent until a tenant is fixed for the suit premises. Therefore, the appellants permitted the respondent to put in possession of the suit premises. According to the appellants, the possession of the respondent is as a permissive occupant. Since the respondent did not fix a tenant in the suit premises, the appellants cancelled the Power of Attorney under Ex.A2-Cancellation Deed, dated 04.09.2000. 10. The respondent in a written statement has not stated under what capacity he is in possession of the suit premises. He denied his possession both as a tenant as well as a licensee. Since the respondent has not disputed the title of the appellants, he could have 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/ 4 Further, in his evidence he has stated that there was an oral Sale Agreement between himself and appellants/plaintiffs and on the basis of the said agreement, he has also paid Rs.50,000/- to the appellants/plaintiffs towards advance. However, there is no pleading to that effect in the written statement. Therefore, it cannot be relied upon and it is liable to be rejected and the trial Court rightly rejected the said contention. The stand taken by the respondent would only prove that he is not sure about under what capacity he is holding the possession of the suit premises. The appellants also sent Ex.A5-lawyer's notice, dated 26.03.2001 to the respondent informing about the revocation of the permission granted to him and called upon the respondent to vacate and hand over the premises within 15 days and also to pay damages at the rate of Rs.1,000/- per month from 01.06.2000. Though the respondent received the lawyer notice, he did not send any reply. If the contention raised by the respondent that he is holding the possession of the suit premises in different capacity is true, he would have sent reply to Ex.A5-Lawyer's Notice. But for the reasons best known to him he did not send any reply to Ex.A5-Lawyer's notice. The lower Appellate Court has come to the conclusion that the possession of the defendant is that of a lessee. When the respondent himself has stated that he is not a lessee in respect of the suit premises, the lower Appellate Court ought not to have come to the conclusion that he is a lessee in respect of the suit premises. The lower Appellate Court also held that the suit for mandatory injunction is not maintainable. From the materials available on record and from the evidence of DW.1, it is clear that the possession of the respondent is only as a licensee. When the possession of the respondent is only as a licensee the suit filed by the appellants for mandatory injunction is maintainable under Section 39 of the Specific Relief Act. 11. The learned counsel appearing for the respondent in support of his contention relied upon the judgment in Delta International Limited Vs. Shyam Sundar Ganeriwalla and another reported in AIR 1999 SCC 2607, wherein the Honourable Apex Court held that to find out whether the document creates lease or license real test is to find out 'the intention of the parties', keeping in mind that in cases were exclusive possession is given, the line between lease and license is very thin. The Honourable Apex Court further held that in the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease. In the case on hand, the respondent/defendant himself in his written statement has stated that he is not a tenant in respect of the suit premises. He also stated that he is not a licensee in respect of the suit premises. When he himself had stated that he is not a tenant in respect of the suit premises, the proposition of law laid down by the Honourable Apex Court by the above referred judgment is not applicable to the facts and circumstances of the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 5 12. As already stated, the respondent's possession is that of a licensee. The lower Appellate Court failed to take into consideration the written statement filed by the respondent while coming to the conclusion that he is a lessee in respect of the suit premises. The lower Appellate Court ought not to have reversed the judgment and decree of the trial Court. The judgment and decree of the lower Appellate Court are liable to be set aside. 13. So far as with regard to the damages of Rs.1,000/- per month from 01.06.2000, the trial Court has rightly come to the conclusion that the respondent is liable to pay the damages at the rate of Rs.1,000/-. Since it is not in dispute that the respondent is in possession of the property without paying rent, the trial Court rightly decreed for damages. The appellants/plaintiffs are entitled to a decree as decreed by the trial Court. 14. In these circumstances, the questions of law a, b and d are decided in favour of the appellants/plaintiffs. The judgment and decree of the lower Appellate Court are set aside. The judgment and decree made in O.S.No.197 of 2001 on the file of the District Munsif Court, Tirumangalam are restored. Accordingly, the second appeal is allowed. However there shall be no order as to costs. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1.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 in S.A (MD) No.257 of 2011 21.07.2011 ps NSV/5.8.11/5P/5C https://hcservices.ecourts.gov.in/hcservices/