IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2011 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU Second Appeal No.1511 of 1995 1.T.C.Thiagarajan 2.T.C.Venkatachalam 3.T.C.GAnesan 4.T.C.Vaideeswaran ... Appellants/Plaintiffs -Versus- 1.V.K.Lakshminarayanan [deceased] 2.L.Vimala 3.K.L.Bhoopal 4.V.LKarthikeyan 5.Mrs.G.C.Umamaheswari [Respondents 2 to 5 are brought on record as LRs of the deceased sole respondent as per order of this court dated 06.10.2004 made in CMP.No.114205 of 2004] .... Respondents/deceased sole defendant and his LRs This second appeal is filed against the judgment and decree dated 19.09.1994 made in A.S.No.286 of 1992 on the file of the Principal District Judge, Coimbatore, reversing the judgement and decree dated 28.09.1992 made in O.S.No.254 of 1987 on the file of the Principal Subordinate Judge, Coimbatore. For Appellants : Mr.M.S.Krishnan, Senior Counsel for M/s.Sarvabhauman Associates For Respondents : Mr.T.R.Rajagopalan, Senior Counsel JUDGMENT The plaintiffs in O.S.No.254 of 1987 on the file of the learned Principal Subordinate Judge, Coimbatore are the appellants herein and the 1st respondent – V.K.Lakshminarayanan [since deceased] was the sole defendant in the suit. The said suit was filed for recovery of possession of the suit property from the deceased sole defendant and for recovery of https://hcservices.ecourts.gov.in/hcservices/ arrears of rent to the tune of Rs.15,300/- representing the rent for 3 years and for future damages for use and occupation @ Rs.1000/- per month from the date of suit till date of possession. During pendency of the said suit, the deceased sole defendant filed an interlocutory application in I.A.No.1163 of 1987 before the trial court under Section 9 of The Chennai City Tenants' Protection Act, 1921 [herein after referred to as "the City Tenants' Protection Act"] for a direction to the plaintiffs to sell the suit property namely, the land to the deceased sole defendant. The trial court by decree and judgment dated 28.09.1992 decreed the suit as prayed for. By a separate order, the trial court closed the interlocutory application in I.A.No.1163 of 1987. Challenging the above decree and judgment in O.S.No.254 of 1987 , the deceased sole defendant filed an appeal in A.S.NO.286 of 1992 on the file of the Principal District Judge, Coimbatore. In the meanwhile, the deceased sole defendant filed a civil revision petition in C.R.P.No.3032 of 1992 before this court challenging the order in I.A.No.1163 of 1987 dated 03.07.1992. This Court by order dated 04.10.1993 allowed the civil revision petition, set aside the order in I.A.No.1163 of 1987 and remitted the same to the District Court, Coimbatore for disposal along with A.S.No.286 of 1992. On receipt of the same, the said application in I.A.No.1163 of 1987 on the file of the learned Principal Subordinate Judge , Coimbatore was renumbered as I.A.NO.5374 of 1994 on the file of the learned Principal District Judge, Coimbatore. During pendency of the same, the appellant filed an application in I.A.No.5157 of 1992 under Order 41 , Rule 5 of C.P.C. to stay the operation of the decree in O.S.No.254 of 1987 pending disposal of the appeal in A.S.No.286 of 1992. The learned District Judge, thus, heard A.S.No.286 of 1992, I.A.No.5374 of 1994 and I.A.No.5157 of 1992. jointly and by a common judgment dated 19.09.1994 disposed them of all. The learned District Judge allowed the appeal, set aside the decree and judgment of the trial court in O.S.No.254 of 1987 and dismissed the suit. The first appellate court held that the deceased sole defendant was entitled for the benefit of Section 9 of the City Tenants' Protection Act and remitted the application in I.A.NO.1163 of 1987 to the file of the learned Principal Subordinate Judge with a direction to proceed with further as provided in Section 9 (1)(b) of the City Tenants' Protection Act. Challenging the above decree and judgment of the first appellate court the plaintiffs are before this court with this appeal. 2. The case of the plaintiffs in brief is as follows:- The suit property was originally owned by one T.S.Chandrasekaran S/o.Samu Iyer. The plaintiffs are the children of T.S.Chandrasekaran. On 01.10.1975, T.S.Chandrasekaran and the defendant entered into a lease agreement by which T.S.Chandrasekaran leased out the suit property to the defendant on a monthly rent of Rs.425/-. According to the plaintiff, prior to the said lease agreement, T.S.Chandrasekaran was owning a building and machinery on the suit property wherein he was running a saw mill. But, unfortunately, the saw mill was destroyed partially in a fire accident. T.S.Chandrasekaran also fell ill. It was because of the said condition, T.S.Chandrasekaran leased out the entire property along with a license https://hcservices.ecourts.gov.in/hcservices/ to run the saw mill under a composite lease to the defendant. To put it precisely, the lease was not only for land, but also for the building and the machinery including the license. The lease commenced from 01.10.1975. The monthly rent payable @ Rs.425/- is to be calculated from the first of every English calendar month. Ex.A.1 is the lease deed. T.S.Chandrasekaran died in the year 1981. But, the defendant did not pay any rent to T.S.Chandrasekaran while he was alive or to the plaintiffs after his death. Taking advantage of a clause in the lease deed, the defendant made only some repairs of the superstructure which was damaged in the fire accident. But, he did not pay any rent. After the demise of T.S.Chandrasekaran, having inherited the suit property, the plaintiffs tried to persuade the deceased sole defendant to hand over the vacant possession of the suit property. But, he did not come forward readily to obey. Therefore, a legal notice was issued on 28.05.1986 in this regard calling upon the him to hand over the vacant possession. But, no reply what so ever was given for the said notice by him. In those circumstances, the plaintiffs filed the suit for appropriate relief. 3. In the written statement , the execution of the agreement dated 01.10.1975 [Ex.A.1] is admitted by the deceased sole defendant. But, according to the specific case of the defendant, what was leased out was only a vacant site measuring 100 feet x 120 feet in S.F.No.409 / 2 in Singanallur Village, Coimbatore District and it was not a composite lease including the building and machinery. On the date of execution of lease agreement [Ex.A.1] , the suit property was only a vacant site since the entire superstructure had already been damaged in the fire accident. As a matter of fact, T.S.Chandrasekaran closed down the business because of the said fire accident. Thus, the vacant site alone was leased out and possession thereof was given to the defendant. 4. It is further contended that the plaintiffs' father had borrowed a sum of Rs.40,000/- from the defendant under promissory notes. The said promissory notes were also destroyed in the fire accident on 13.03.1975. when the lease of the entire site was given to the defendant, the plaintiffs' father T.S.Chandrasekaran agreed that the rent for the site could be adjusted towards the loan of Rs.40,000/- availed by him and that if the lessor was unable to repay the loan, the defendant would be entitled to purchase the vacant site for a sum of Rs.40,000/-. It was because of this arrangement, T.S.Chandrasekaran never demanded any rent and the defendant also had no occasion to pay the rent to T.S.Chandrasekaran. But, T.S.Chandrasekaran, did not repay the loan of Rs.40,000/- . Even though the defendant was ready and willing to purchase the vacant site and building, since T.S.Chandrasekaran was bedridden conveyance got postponed. The defendant had already invested a sum of Rs.60,000/- in making complete construction of the building. Incorporating the above terms, T.S.Chandrasekaran executed a vardamanam letter dated 09.07.1977 [Ex.B.27]. https://hcservices.ecourts.gov.in/hcservices/ 5. Since the defendant constructed the superstructure by investing his own funds, as per Section 9 (1) of the City Tenants' Protection Act, he is entitled for the benefit to compel the plaintiffs to sell the suit property namely, the land to him. Claiming so, he filed the interlocutory application in I.A.No.1163 of 1987 before the learned Subordinate Judge, Coimbatore [later on renumbered as I.A.No.5374 of 1994 on the file of the learned Principal District Judge]. Thus, according to the defendant, the suit was liable to be dismissed. 6. A reply statement was filed by the plaintiffs wherein the contention of the defendant that a sum of Rs.40,000/- had been secured by T.S.Chandrasekaran from him under promissory notes was denied. The execution of the varadamanam letter was also denied. According to the reply statement, a letter head paper of T.S.Chandrasekaran was stealthily kept by the defendant and misused by him for preparing the said varadamanm letter. Thus, the said document is a forged document which cannot be given any weightage of. It was further contended that investment of Rs.60,000/- by the defendant for constructing the building is only imaginary. According to the reply statement, the defendant never effected any improvement or any construction on the suit property. It was further contended that as per the terms of the lease agreement, the superstructure belongs only to the plaintiffs and, therefore, the defendant is not entitled for the benefit of Section 9 of the City Tenants' Protection Act. 7. An Additional written statement was filed thereafter by the defendant wherein the allegations in the reply statement were denied. Among other things, in the additional written statement, it was contended that the case of the plaintiffs that there was a composite lease is false and contrary to the recitals of the lease agreement on which the suit itself was based. What was leased out was only a vacant site and, therefore, the defendant was entitled for the benefit of Section 9 of the City Tenants' Protection Act. 8. Based on the above pleadings, appropriate issues were framed by the trial court. During trial on the side of the plaintiffs, the 3rd plaintiff was examined as P.W.1 and one Mr.Ranganathan was examined as P.W.2 and as many as 24 documents were marked as Exs.A.1 to A.24. On the side of the defendant, the defendant himself was examined as D.W.1 and as many as 27 documents were marked as Exs.B.1 to B.27. During pendency of the proceedings, an Advocate Commissioner was appointed and his report and sketch were marked as Ex.C.1 and C.2 respectively. 9. Having considered the above materials, the trial court decreed the suit as prayed for by the plaintiffs. As against the same, an appeal in A.S.No.286 of 1992 had been filed before the District Judge, Coimbatore. As I have already narrated, the trial court closed the interlocutory application filed under Section 9 of City Tenants' Protection Act in I.A.No.1163 of 1987. The revision filed against the https://hcservices.ecourts.gov.in/hcservices/ same by the defendant in C.R.P.No.3032 of 1992 was allowed on 19.09.1994. This Court while allowing the revision remitted the interlocutory application in I.A.NO.1163 of 1987 to the file of the District Judge with a direction to try the same along with A.S.No.286 of 1992. Accordingly, both the appeal in A.s.No.286 of 1992 and I.A.No.1163 of 1987 [ renumbered as I.A.No.5374 of 1994 by the District Judge, Coimbatore] were tried together. The first appellate court dismissed the suit , however, held that the defendant is entitled for benefit of Section 9 of City Tenants' Protection Act and remitted the interlocutory application back to the trial court with a direction to proceed further under Section 9 (1) (b) of City Tenants' Protection Act. As against the same, the plaintiffs are before this court with this second appeal. 10. When the second appeal was admitted, this court framed the following substantial question of law:- Whether the view taken by the lower appellate court that the respondent is entitled to the benefits of the Tamil Nadu City Tenants' Protection Act is vitiated by the circumstance that the terms of Ex.A.1 have not been correctly understood by the lower appellate court? 11. I have heard the learned counsel on either side and also perused the records carefully. 12. Ex.A.1 is the document, upon which the entire dispute between the parties hinges. The execution of the said document is not in dispute. It is also not in dispute that by means of the said document, the defendant was put in possession as a lessee of the suit property. The one of the disputes between the parties is as to whether under Ex.A.1 , the vacant site was leased out to the defendant or land along with building and machinery was leased out. To put it otherwise, whether it was a simple lease of land or it was a composite lease of land with the building and machinery. Both the courts below have resolved this factual dispute by concurrently holding that what was leased out under Ex.A.1 was only a vacant land. 13. The learned counsel for the respondents would make reliance on Ex.B.1 which is a news item in Malai Murasu Tamil Daily dated 13.03.1975. This has been marked through the plaintiff during the cross examination. Relying on this, the learned senior counsel would submit that the entire saw mill was burnt to ashes. In my considered opinion, such reliance placed by the learned counsel for the respondents cannot be countenanced at all for the simple reason that Ex.B.1 is nothing but a simple news item appeared in a news paper. It is not at all admissible in evidence in the absence of proof of the contents of the same in the manner known to law. https://hcservices.ecourts.gov.in/hcservices/ 14. Nextly, the learned senior counsel on either side have taken me through Ex.A.1. A perusal of the description of the property contained in Ex.A.1 would go a long way to show that what was leased out is only a vacant land. It is needless to point out that though the plaintiffs have contended that what was leased out under Ex.A.1 is a composite lease of land, building and machinery, I do not find any material to believe the same to be true. Apart from that, under Section 92 of the Evidence Act, the plaintiffs are debarred from letting in any evidence against the recitals of Ex.A.1. When Ex.A.1 clearly states that what was leased out was only a vacant land, any amount of evidence let in by the plaintiffs in an attempt to prove that what was leased out is only a composite lease of land, building and machinery cannot be considered at all in law in view of the bar contained in Section 92 of the Evidence Act. Therefore, I find not reason to interfere with the said concurrent finding of the courts below that what was leased out under Ex.A.1 was only vacant land. 15. If once, the said dispute is resolved so, then comes, the question as to whether the defendant is entitled for the benefit of Section 9 of City Tenants' Protection Act . There can be no controversy before this court that in order to get the benefit of Section 9 of City Tenants' Protection Act, the defendant is bound to prove that the building was constructed on the vacant land leased out by the deceased T.S.Chandrasekaran only out of the funds of the defendant. This is the essential requirement of Section 9 of City Tenants' Protection Act. It is not the case of the plaintiffs that neither T.S.Chandrasekaran nor the plaintiffs paid any amount to the defendant for the construction of the building. Therefore, it goes without saying that the building was constructed only by the defendant. 16. The next question that would arise is as to whether the above said fact by itself would go to establish that the defendant is entitled for the benefit of Section 9 City Tenants' Protection Act. In this regard, the contention of the plaintiffs is that the building was constructed by spending money which was due from the defendant towards rent for the vacant site. The learned senior counsel for the appellants/plaintiffs would rely on Ex.A.1 wherein it is clearly stated that the defendant shall construct a building , occupy the same and adjust Rs.425/- p.m. towards rent as against the amount spent for the purpose of construction. Therefore, according to the learned senior counsel for the appellants, the amount spent by the defendant for the construction of the building was only from the amount belonging to the plaintiffs and, therefore, the building was not constructed out of the funds belonging to the defendant. So, according to the appellants/plaintiffs, the respondents/defendant(s) are not entitled for the benefit of Section 9 of the City Tenants' Protection Act. 17. But, the learned senior counsel appearing for the respondents would make reliance on the varadamanam letter under Ex.B.27 executed by T.S.Chandrasekaran in favour of the defendant on 09.07.1977. Before https://hcservices.ecourts.gov.in/hcservices/ considering the contents of this document, let me first of all consider the objection regarding its genuineness. According to the plaintiffs, this letter cannot be given any weightage of for two reasons. First of all, the said document is a forged document and secondly, the contents of the same have not been proved. Therefore, the same is liable to be rejected. But, the learned counsel for the respondents/defendant(s) would submit that the said document has been found to be true by both the courts below which does not require any interference at the hands of this court. Here again, I have to state that the courts below have given a concurrent finding on facts that the said document was validly executed by the deceased T.S.Chandrasekaran in favour of the defendant. Since this question, as I have already stated, is essentially a question of fact which has been resolved by both the courts below on appreciating the entire evidence on record and as it has not been established before this court that the said finding is perverse in any legal sense, I do not find any reason to interfere with the same. 18. Now, turning to the contents of Ex.B.27, it reads as though T.S.Chandrasekaran authorized the defendant to occupy the suit property by adjusting the monthly rent towards the dues from T.S.Chandrasekaran. It goes to show that there is a reference about the sum of Rs.40,000/- allegedly paid to T.S.Chandrasekaran under promissory notes. It further reads that the promissory notes were also destroyed subsequently in the fire accident. But, there is also a reference in Ex.B.27 about Ex.A.1 lease agreement. It states that the defendant shall occupy the building without paying any rent until T.S.Chandrasekaran would repay the amount due under the destroyed promissory notes and if the said amount is paid to the defendant, then the defendant would start paying the monthly rent regularly to the plaintiffs. The said document further states that if the amount of Rs.40,000/- is not paid within 3 years from 09.07.1977, thereafter, T.S.Chandrasekaran shall execute a sale deed thereby transferring the title for the vacant land in favour of the defendant. Taking me through the said recitals, the learned senior counsel appearing for the respondents would submit that the rent is deemed to have been paid to T.S.Chandrasekaran since it was adjusted only towards interest for Rs.40,000/- due under the promissory notes. Thus, the defendant was only a tenant and he deemed to have paid the rent for the land. Since he only constructed the building and occupied the same, according to the learned counsel for the respondents, the first appellate court was right in holding that the defendant is entitled for benefit of Section 9 of the City Tenants' Protection Act. 19. But, in my considered opinion, the first appellate court was not right in holding so. Ex.A.1 is the lease agreement in which monthly rent has been fixed at Rs.425/- and as per the further terms of Ex.A.1, the rent amount shall be adjusted towards the cost of the construction of the building. It is not the case of the defendant that he ever paid any amount as rent to T.S.Chandrasekaran or to the plaintiffs. Thus, it is crystal clear that though the defendant has been in occupation of the https://hcservices.ecourts.gov.in/hcservices/ property from 01.10.1975 onwards, he has not paid even a single pie towards rent for the vacant land to T.S.Chandrasekaran or to the plaintiffs. But, at the same time, it cannot be termed as 'default' on his part. As recited in Ex.A.1 the monthly rent was getting adjusted towards the cost of construction of the building. Thus, the building was not constructed out of the funds of the defendant as it is claimed by the defendant. 20. At this juncture, I have to state that the true mode of construing a document is to read and understand the same in its entirety so as to know the intention of the parties to the document while executing the said document. Had it been the intention of the parties that the defendant would make construction out of his own funds, then the parties would not have recited in Ex.A.1 that the rent for the suit land shall be adjusted towards the cost of the construction. This would clearly go to show that the parties never intended that the construction of the building should be made by the defendant out of his own funds. The recitals of the document would make it undoubtedly clear that the intention of the parties was only to construct the building by the defendant from out of the funds of T.S.Chandrasekaran only. Since T.S.Chandrasekaran had no money to pay for the purpose of constructing the building and since he had already closed down his business due to damage caused to the building in the fire accident , he had wanted the defendant to construct the building by spending money which would be realized by way of rent. Therefore, I have no hesitation to hold that the building was not constructed out of the funds of the defendant so that he could have the benefit of Section 9 of the City Tenants' Protection Act. 21. Now, coming to the contention of the learned counsel for the respondents/defendant(s) based on Ex.B.27 vardamanam letter, though the vacant site was handed over to the defendant on 01.10.1975, till 09.07.1977, the defendant had constructed only a portion of the building and had started using the same for his business purpose. According to the recitals of Ex.B.27, as on 09.07.1977, the defendant had spent a sum of Rs.60,000/- for the purpose of construction of the building. Though it was denied by the plaintiffs, the said denial has no force at all in view of the fact that the courts below have found that Ex.B.27 is a true document containing the true facts. Therefore, as recited in Ex.A.1 as on 09.07.1977, when Ex.B.27 was executed a sum of Rs.60,000/- had been spent and therefore, the rent at the rate of Rs.425/- p.m. shall be adjusted as against the same. The said document further recites that apart from Rs.60,000/- already spent , a further sum of Rs.25,000/- would be required to complete the construction. Apart from that there is also a recital about Rs.40,000/- secured by T.S.Chandrasekaran under promissory notes. Thus, the total sum due from T.S.Chandrasekaran was Rs.85,000/- towards construction of the building including a sum of Rs.40,000/- towards loan. Now as per the very same document, the defendant would be occupying the building without paying any rent which means the monthly https://hcservices.ecourts.gov.in/hcservices/ rent shall be adjusted towards the cost of construction. Therefore, even Ex.B.27 will not go to indicate that the cost for the construction of building was borne out by the defendant out of his own funds so as to claim the benefit of Section 9 of the City Tenants' Protection Act. 22. Now, let me turn to the oral evidence of the defendant. D.W.1 even in his chief examination has stated that as per Ex.A.1 lease agreement, he completed the construction of the building during the years 1976 and 1977 strictly in accordance with Ex.B.3 approved plan. He has further stated that he handed over the accounts for the construction of the building at once. Thereafter, according to him, he purchased a second hand saw mill from a person at Trichy and started running the mill. Ex.B.23 dated 07.07.1978 is the receipt showing the payment of fine for having