IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.Nos.85 and 86 of 2006 and C.M.P.Nos.504 to 506 of 2011 Haridason .. Appellant in both S.As. vs. Janakiram Banthalu Trust Maduranthakam, represented by its Managing Trustee Sri.K.V.Kuppusamy S/o Varadappa Naicker residing at No.92 Chellammal Car Street Maduranthakam Town and Firka Maduranthakam Taluk Kancheepuram District. .. Sole Respondent in S.A.No.85/2006 and R1 in S.A.No.86/2006 M.Elumalai, Trustee No.172, Chelliamman Car Street Maduranthakam Town and Taluk Kancheepuram District. .. R2 in S.A.No.86/2006 These Second Appeals are focussed as against the common judgment and decrees dated 28.10.2005 passed in A.S.Nos.18 and 19 of 2004 by the learned Subordinate Judge at Maduranthakam, confirming the common judgment and decrees dated 24.07.2004 passed in O.S.Nos.478 of 1998 and 129 of 1999 respectively by the learned District Munsif, Maduranthakam. For appellant : Mr.Ashok Menon for Menon & Goklaney Associates For respondents: Mr.N.Nagushah JUDGMENT These two Second appeals are focussed by the original defendant, animadverting upon the common judgment and decrees dated 28.10.2005 passed in A.S.Nos.18 and 19 of 2004 by the learned Subordinate Judge at Maduranthakam, confirming the common https://hcservices.ecourts.gov.in/hcservices/ judgment and decrees of the learned District Munsif, Maduranthakam in O.S.Nos.478 of 1998 and 129 of 1999 respectively. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The epitome, and the long and short of the relevant facts absolutely necessary and germane for the disposal of these two Second Appeals would run thus: (a) The respondent/plaintiff filed two suits. (i) O.S.No.478 of 1998 was filed seeking the following relief: "To direct the defendant to quite and deliver possession of the suit property to the plaintiff and on his failure to evict the defendant through the process of this Honourable Court; (ii) To direct the defendant to pay a sum of Rs.1,000/- per month as damages from August 1997 or use and occupation till the date of delivery; and (iii) for costs." (extracted as such) One K.V.Kuppusamy represented the Trust as its Managing Trustee. (b) O.S.No.129 of 1999 was filed seeking the following reliefs: "(i) For permanent injunction restraining the defendants, his men, agents, representatives, servants and legal heirs from any way put up further construction in the suit property; (ii) For permanent injunction restraining the defendant from any way alienating the suit property into third parties; (iii) For permanent injunction restraining the defendant from any way sub-leasing the suit property to the 3rd parties; and (iv) For costs." (extracted as such) The said K.V.Kuppusamy and one Elumalai represented the Trust as its Trustees. (c) The appellant/defendant filed respective written statements resisting the suits. (d) Whereupon the trial Court framed the issues. (e) During joint trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A13 were marked. The defendant examined himself as D.W.1 and Ex.B1 was marked. Exs.C1 and C2 were marked as Court documents. https://hcservices.ecourts.gov.in/hcservices/ (f) Ultimately the trial Court decreed the suits as against which appeals were filed for nothing but to be dismissed by the appellate Court, confirming the judgment and decrees of the trial Court. However, before the first appellate Court four additional documents were filed by the defendant and got them marked as Exs.B2 to B5. 3. Being aggrieved by and dissatisfied with the judgment and decrees of both the Courts below, these Second two Appeals have been filed by the defendant on various grounds and also suggesting the following substantial questions of law: "(1) Whether the learned lower appellate Court Judge erred in overlooking that the suit was not maintainable? (2) Whether the learned Lower Appellate Court Judge erred in overlooking that the Managing Trustee K.V.Kuppusami having ceased to function on account of efflux of time, put up the entire superstructure was entitled to benefits of the City Tenants Protection Act and initiate legal proceedings against the Appellant herein? (3) Whether the Learned Lower Court Judge erred in overlooking that the Appellant was entitled to the benefit of the City Tenants Protection Act, especially as the Appellant has put up the superstructure and only vacant land had been let out to him. (4) Whether the Learned Lower Court Judge had erred in concluding that the Appellant was in rental arrears, especially when there was nobody on behalf of the Respondent Trust who was competent to claim the same from the Appellant and consequently no demand had been made on the Appellant for the same?" (extracted as such) 4. C.M.P.No.504 of 2011 was filed to receive additional grounds in S.A.No.85 of 2006. 5. C.M.P.No.505 of 2011 was filed for reception of additional evidence in the form of following documents in Second Appeal No.85 of 2006. "01. 18.10.1996 F.M.B. Sketch issued by the Village Administrative Officer. [Original] https://hcservices.ecourts.gov.in/hcservices/ 02. 19.10.1996 Chitta Adangal issued by the Village Administrative Officer in favour of Durga Bhavan Hotel..[Original] 03. 19.10.1996 Certificate issued by the Village Administrative Officer in favour of the Appellant. [Original] 04. 10.01.1997 Proceedings of the Inspector, [Town Survey Office], Maduranthakam to the Appellant. [Original] 05. 07.02.1997 Ownership Certificate issued by the Tahsildar Town Survey Department, Maduranthakam in favour of the Appellant. [Original] 06. 10.02.1997 Ownership Certificate issued by the Tahsildar, [Land Survey, Maduranthakam] in favour of the Appellant. [Original] 07. 03.11.1997 Sanctioned Plan for construction issued by Commissioner, Maduranthakam Municipality; [Original] 08. 04.12.1997 Letter issued by the Village Administrative Officer to Appellant. [Original] 09. 26.04.2001 S.L.R. Copy issued by Additional P.A. to Collector, Kancheepuram. [Original] 10. 12.12.2006 Water charges Receipts [2 Nos.] and issued by Maduranthakam Municipality in 09.03.2010 fabvour of Appellant [Original] 11. 09.02.2007 Profession Tax issued by Maduranthakam Municipality in favour of Appellant. [Original] 12. 08.03.2007 Property Tax Receipts [2 Nos.] issued by and Maduranthakam Municipality 10.11.2009 in favour of Appellant. [Original]" 6. C.M.P.No.506 of 2011 was filed to receive additional grounds in S.A.No.86 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 7. Heard both sides. 8. At the outset I fumigate my mind with the principles as found enshrined in the following decision: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." 9. A mere poring over and perusal of those excerpts including the whole judgment would reveal that perversity or illegality in the findings of the Courts below or failing to apply the correct law or mis-reading or non-reading of the evidence would warrant interference in Second Appeal. 10. It is therefore just and necessary to find out as to whether there is any substantial question of law is involved in these matters. 11. The pith and marrow of the arguments as put forth and set forth on the side of the appellant/defendant would run thus: (a) The plaintiff Trust and for that matter the said K.V.Kuppusamy, who claims to be representing the said Trust, is having no locus standi to file this suit. (b) Janakiram Banthulu Trust is not at all the owner of the suit property. https://hcservices.ecourts.gov.in/hcservices/ (c) K.V.Kuppusamy is not the Managing Trustee as claimed by him. Without any appointment from the District Court concerned which formulated a Scheme decree in the suit O.S.No.1 of 1953, he cannot pose him as a Trustee. The one other Trustee Elumalai also had no right to maintain any suit as he is no more a trustee. (d) As per the Scheme Decree, a Trustee appointed by the Court could continue only for five years. After the expiry of five years, his trusteeship automatically comes to an end. Here the said K.V.Kuppusamy, who allegedly represents the Trust was appointed by the District Court long ago and his quinquennial period got expired, so to say long prior to the filing of the suits. The same is the position with Elumalai also. In such a case, the suits are not maintainable. (e) The defendant owing to mistake of fact, at one point of time thought Janakirm Banthulu Trust was the owner of the suit property, but it was turned out to be far from reality. Whereupon, he took steps to get his name mutated in the revenue records as owner and he raised a new construction after demolishing the old structure. He is running his hotel under the name and style 'Durga Bhavan' and other commercial activities are also going on in the said building. (f) A de facto trustee should be in actual effective control of the Trust and then only he could file any suit so as to safeguard the property of the Trust. But in this case, there is no iota or shred, molecular or miniscule extent of evidence to show that the Managing Trustee, namely K.V.Kuppusamy or Elumalai is in effective control of the administration of the Trust. (g) No accounts and no correspondence with the Government, produced and in such a case, they cannot project themselves as the person competent to represent the Trust and file the suits. (h) In the Scheme Decree there is no reference to this suit property at all. Only an immovable property measuring an extent of 26 acres is found referred to in the Scheme Decree. Whereas, the suit property is a Natham poromboke. As such, in the absence of any evidence to show that the suit property belongs to the Trust, the soi distant Trustees K.V.Kuppusamy and Elumalai cannot file the suits as set out supra. (i) Mere mistake of fact on the part of the defendant cannot be pitted against him by the plaintiff and try to achieve success in the litigative process. (j) Both the Courts below miserably failed to take into consideration the real purport of the written statements and the https://hcservices.ecourts.gov.in/hcservices/ pleas raised by the defendant, warranting interference in the Second Appeals. (k) There is no explanation, much less plausible explanation as to what prevented K.V.Kuppusamy or Elumalai or any other person to approach the District Court, which formulated the Scheme Decree to get appointed himself as the Trustee. (l) The provisions of the City Tenants' Protection Act were not taken into consideration at all by both the Courts below. (m) Both the Courts below ignored the fact that there was no one competent to receive the rental arrears from the appellant/defendant. (n) During the pendency of the appeals, I.A.No.41 of 2005 was filed seeking permission to file certain documents by way of additional documents, which would reveal that mutation was got effected in the revenue records to the effect that the appellant herein acquired title over the suit property. Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the common judgment and decrees of both the Courts below and for dismissing the original suits or in the alternative for remanding the matters to the trial Court for adducing additional evidence. 12. In a bid to torpedo and pulverise, and to make mince meat of the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, the gist and kernel of them would run thus: (a) The written statements filed by the appellant/defendant pellucidly and palpably indicate and connote that the defendant recognised the plaintiff as the landlord. In such a case, the defendant in the Second Appeals cannot veer round and take a plea quite antithetical to what he committed himself in black and white in the written statements. (b) The defendant approached the District Court during the year 1991 seeking permission to get demolished the old structure, which was leased out to him by the Trust so as to raise new construction. However, the District Court which passed the Scheme Decree earlier rejected his application. The application for getting the lease in his favour extended for a period of thirty years also was rejected. After meeting with his waterloo, in his attempt, he subsequently as an afterthought, joined hands with his friends i.e., business men and started laying claim as owner in respect of the suit property. However much latter, so to say https://hcservices.ecourts.gov.in/hcservices/ during the year 2003, when the written statement was filed, he made a categorical admission therein that the Plaintiff Trust is the actual landlord of the demised premises concerned. (c) The prevaricative stands of the defendant would speak by themselves that he is not having a consistent case of his own and every now and then he tries to indulge in prevarication, meriting no consideration by this Court. (d) Even after the lapse of five years period of the Trusteeship of K.V.Kuppusamy, he has been continuing as a de facto trustee and till new trustees come and take over the administration, it is his legal as well as moral duty, to see that the property of the Trust is not dissipated or taken away or grabbed by any person, including the defendant. Hence the law is clear on the point that persons like K.V.Kuppusamy could very well maintain the suits like the ones which he filed before the lower Court. The same factual and legal positions enure to Elumalai the one other trustee also. (e) A perusal of the entire evidence and pleadings would demonstrate and display that the defendant candidly and categorically admitted the ownership of the plaintiff Trust over the suit property. (f) The contention on the side of the defendant that in the Scheme Decree, the suit property was not included is neither here nor there, because the Trust is owning several properties, including the suit property and so far these suits are concerned, the very admission and acknowledgment made by the defendant that the plaintiff Trust is the owner and under whom the defendant was occupying as a tenant, would be much more than sufficient to pass decrees in the suits filed by the plaintiff. (g) The defendant also at one point of time tried to set up title in Mangammal, the wife of the original founder of the Trust, by projecting as though Mangammal was the original owner. As such, every now and then he changed his stand, so as to grab the property of the Trust. (h) The question of invoking the City Tenants' Protection Act, would not arise at all for the reason that, what was admittedly leased out by the Trust to the defendant was a building and not a vacant plot or land, over which he was allowed to raise the construction. As such, the learned counsel for the respondent/plaintiff, would pray for the dismissal of the Second Appeals. 13. I would like to discuss the substantial questions of law suggested by the defendant in seriatim. https://hcservices.ecourts.gov.in/hcservices/ 14. The indubitable and indisputable, or atleast the undeniable facts would run thus: The defendant herein filed the written statements candidly admitting that he entered into the suit property, as a tenant. Certain excerpts from the written statements would run thus: "This defendant submits that is true that the suit property belongs to M/s Janakiram Banthula Trust, Maduranthakam and it is equally true that the suit property has been 1st leased out to the defendant for non-residential purpose for running a Hotel under the name and style of 'Durga Bhavan' in the suit property. This defendant has been regular in payment of rent and has not committed wilful default nor is in arrears of rent........." (emphasis supplied) 15. I hark back to the maxim: Judicis est judicare secundum allegata et probata – It is the duty of a Judge to decide according to the facts alleged and proved. 16. En passant, I would like to refer fruitfully to the precedent of the Hon'ble Apex Court in Udhav Singh vs. Madhav Rao Scindia [1977(1) SCC 511], which clearly by referring to the aforesaid maxim held that in a litigation, a party should not be allowed to litigate by giving go bye to his pleadings. Here the gamut and scope of the suits filed by the plaintiff should be seen. The plaintiff instituted both the suits as set out supra, as against the defendant, narrating that the defendant was its tenant and in respect of the same, the defendant without any reservation admitted that he happened to be the tenant under the Trust. Hence, it is quite obvious and axiomatic that the defendant himself got attracted as against him Section 116 of the Indian Evidence Act, which is extracted hereunder: "No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given." 17. A plain reading of the said Section would indicate that a tenant cannot dispute the ownership of his landlord or the capacity of the landlord to lease out the premises concerned to https://hcservices.ecourts.gov.in/hcservices/ him. Hence, the contentions raised before this Court in the Second Appeals and that too, to some extent based on the additional documents are all untenable and the tenant/defendant cannot, in view of the aforesaid Section 116 of the Indian Evidence Act raise such pleas. 18. As has been correctly pointed out by the learned counsel for the plaintiff, the defendant unsuccessfully and frivolously during the year 1991 tried all his level best to get permission from the District Court which earlier passed the Scheme Decree, so as to enable him to effect major modification in the building and also for getting extended his lease period after thirty years. 19. Ex.A8, the certified copy of I.A.No.1111 of 1991 and the order passed thereon and Ex.A12, the certified copy of the decreetal order in I.A.No.1195 of 1991, would cumulatively show that I.A.No.1111 of 1991 was filed by Haridason seeking certain reliefs; certain excerpts from it would run thus: "3. The petitioner is the tenant of the property of the respondent morefully and particularly described in the schedule hereunder, on a monthly rent of Rs.350/-. He is running a hotel business at the premises. His father was running the hotel business previously and the petitioner is continuing the same after his father. They have been and are the tenants of the trust for over 40 years. 5. The petitioner intends improving the construction by suitable alternation and additions. Such alternations and additions which will give better appearance and amenities will improve the hotel business. 6. The rough estimate for such improvements stands at Rs.4,00,000/- (Rupees four lakhs only). The petitioner has applied for necessary loan to the Karnataka Bank, a scheduled Bank at Madras. The bank authorities insist on a long term lease of the property so that they may advance the required funds." 20. The I.A.No.1195 of 1991 was filed by one Amirthavalli Ammal claiming to be the Managing Trustee of the Trust, seeking permission of the District Court so as to enable her to lease out the suit property for a period of thirty years. Both those applications were dismissed during the year 1991. It is therefore crystal clear that the defendant wanted to make major alterations and additions to the building leased out to him by the Trust and https://hcservices.ecourts.gov.in/hcservices/ after he having failed to get necessary permission from the District Court concerned that passed Scheme Decree, the defendant throwing winds the Court order as well as the law governing pendency, demolished as per his own version the old building and raised new building. As such, the conduct of the defendant was found fault with by both the Courts below in unmiserable terms. The conduct of the defendant was totally against law and in Second Appeals he cannot try to project himself as though he is having a case of his own capable of being canvassed before this Court. 21. As such by his conduct also, the defendant clearly projected himself as the tenant of the Trust concerned. It is abundantly clear that the additional documents sought to be filed, all emerged subsequent to the year 1991, which are having no probative force of their own. Ex facie and prima facie, those documents are not legally tenable. The certificates issued by the Karnam or some other Revenue officials certifying as though the defendant happened to be the owner of the premises are not at all legal as they do not possess the authority to declare the alleged ownership of he defendant over the suit property and such documents cannot be countenanced and upheld as valid documents. Wherefore, the question of entertaining additional evidence as prayed for in M.P. is next to impossibility. 22. The contentions on the side of the defendant that he demolished the old building which he took it from the plaintiff and raised a new building after obtaining plan approval from the administrative authority, extinguished the right of the trust, over the leased out property, are in my opinion, far fetched arguments, which even by phantasmagorical thoughts or by one's own wildest imagination, cannot be upheld as correct. If a tenant comes to the Court and says as against the landlord that the building which he took on lease was demolished by him and he raised a new one and therefore the landlord should simply lose his right over the property leased out, certainly the Court should condemn such attitude and contention of the tenant in unmistakable terms. The tenant was not expected to raise such new construction without the permission of the landlord or without obtaining permission from the District Court, which passed the Scheme Decree and in fact the District Court dismissed the tenants' application as set out supra. It appears, even after that, the tenant did choose to demolish the old building and raise a new one for which he has to blame himself and he is not entitled to get any relief on that ground and in fact he has to leave the plot and the building raised by him thereon to the landlord without any demur. 23. The landlord's right to seek for eviction from the said plot and building cannot be denied at all and it is quite obvious and axiomatic. https://hcservices.ecourts.gov.in/hcservices/ 24. My mind is redolent and reminiscent of the following maxim: Allegans contraria non est audiendus – On alleging contrary or contradictory things (whose statements contradict each other) is not to be heard. 25. Here the above narration of facts would unambiguously and unequivocally, display and demonstrate that every now and then the defendant tried his level best to change his stand. At one point of time, he admitted his status as that of a tenant and he tried to obtain certain orders from the District Court concerned; however he failed. Subsequently, the defendant bending over backwards, with the help of other business men, tried to lay claim over the suit property as owner and thereupon also, he could not succeed. Subsequently, while filing the written statements he candidly admitted that he happened to be tenant under the plaintiff Trust. In paras 25 and 26 of the common judgment of the Appellate Court, the nebulous and dubious nature of documents