1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:17.02.2011 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.50 of 2011 1.Krishnavani 2.Dhinakaran 3.Ramesh :Appellants/Defendants -Vs- D.S.Saratha :Respondent/Plaintiff PRAYER:Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgment and decree made in A.S.No.117 of 2004, dated 01.04.2005, on the file of the Additional Sub-Court, Kumbakonam confirming the judgment and decree made in O.S.No.471 of 1996, dated 08.07.2002, on the file of the I Additional District Munsif Court, Kumbakonam. For Appellants:Mr.A.V.Arun JUDGMENT The arguments advanced by Mr.A.V.Arun, the learned counsel for the appellants were heard. Materials placed by the appellants for the perusal of the Court were also perused. The judgments of the Courts below were also considered. 2.The defendants in the original suit are the appellants in the Second Appeal. The suit was filed by the respondent herein against the appellants herein for the relief of permanent injunction restraining the appellants herein/defendants from removing the thatched structure and putting up a new construction in the suit property. The said plea was made based on the contention of the respondent herein/plaintiff that she had let out a portion of the suit property, over which a thatched structure measuring 10 feet x 15 feet had been put up her, to the first appellant/first defendant for a monthly rent of Rs.50/-; that the first appellant /first defendant, having committed default in payment of rent for an year, collected building materials in the suit property with the intention of removing the thatched shed and putting up a pucka construction and that neither the first appellant/first defendant nor her grand sons/appellants 2 and 3/ defendants 2 and 3 had have any such right to do so 3.The suit was resisted by the appellants herein/defendants denying the contention of the respondent/plaintiff that there was a jural relationship of landlord and tenant between the respondent/plaintiff and the first appellant/first defendant and contending that on the other hand, the first appellant was in possession and enjoyment of 3300 square feet, which forms western part of the suit property and the thatched structure available in that portion was one put up by the first appellant; that the first appellant entered into an agreement to purchase the suit property having an extent of 3330 square feet for a sum of Rs.65,000/- on 02.11.1989 and paid a sum of Rs.30,000/- on the date of agreement itself; that possession of the said property which was the subject matter of the agreement was given to the first appellant in part performance of the contract under the agreement and that therefore, the first appellant's right was protected under Section 53 (A) of the Transfer of the Property Act, 1882. https://hcservices.ecourts.gov.in/hcservices/ 2 4.The learned trial Judge, after trial, came to the conclusion that the claim of the appellants/ defendants that the first appellant/1s defendant was in possession of the suit property by virtue of the agreement for sale and also in part performance of the agreement of sale dated 02.11.1989 was not proved and that on the other hand the plea of the respondent/ plaintiff that the first appellant/first defendant was in possession only as a tenant stood proved. Based on the said findings, the learned trial Judge granted the relief of permanent injunction as prayed for, by a judgment and decree dated 08.07.2002. The said decree of the trial Court was challenged before the lower appellate Court in A.S.No.117 of 2004 by the appellants/defendants herein. 5.In fact, except the oral testimony of the 3rd appellant herein, who was examined as D.W.1, no other evidence, either oral or documentary was adduced on the side of the appellants/defendants in the original suit before the trial Court. On the other hand, besides the evidence of the son of the respondent as P.W.1, Ex.A.1 to A.8 had been produced on the side of the respondent/ plaintiff. Even though the stand of the appellants/ defendants happens to be that the first respondent was in possession of a portion of the suit property by virtue of an agreement for sale and also in part performance of the agreement of sale dated 02.11.1989, they had not chosen to produce the said agreement before the trial Court. However, in the appeal before the lower appellate Court, totally four documents seems to have been produced as additional evidence with the leave of the Court. But it is obvious from the judgment of the lower appellate Court that the procedure prescribed for recording additional evidence in the appellate stage i.e., Order 41 Rule 28 of C.P.C. was not followed. No witness was examined to prove the genuineness of the documents produced by the appellants in the appellate stage as Ex.B.1 to B.4. Without following the procedure for recording additional evidence, the lower appellate Court seems to have simply referred to the documents as Ex.B.1 to B.4. 6.No doubt, the procedure adopted by the lower appellate Court, in marking those documents is not in tune with the law regarding recording of additional evidence in the appellate stage. But, even assuming that the procedural lacuna found in the reception of the additional evidence will not affect the case of the appellants since the additional evidence had been accepted and referred to by the lower appellate Court as no specific objection was taken, the said additional evidence also is not helpful to the appellants to show that the first appellant was in possession of the property in part performance of the agreement of sale. 7.The alleged agreement dated 02.11.1989 has been marked as Ex.B.1 and the endorsement dated 07.12.1989 made in the said document has been marked as Ex.B.4. It should be noticed that nearly after a period of one month, substantial amount was paid and Ex.B.4 endorsement was obtained. The first appellant, who claims to have paid the entire sale consideration has come forward with a noval story that the balance amount of Rs.15,000/- was adjusted towards the chit amount payable to the first appellant in connection with a chit conducted by the respondent/plaintiff. The said adjustment pleaded by the appellants is not evidenced by any writing. The learned lower appellate Judge has also made a clear observation that neither Ex.B.1 – agreement, nor Ex.B.4 endorsement does have any indication that possession of the property was handed over to the first appellant in part performance of the agreement for sale. https://hcservices.ecourts.gov.in/hcservices/ 3 8.It is admitted on behalf of the appellants in the Second Appeal that the said finding to the effect that there is nothing in the agreement or the endorsement marked as Ex.B.1 to B.4 respectively, to show that possession of a portion of the suit property was given to the first appellant in part performance of the agreement for sale is correct. When such is the case, this Court does not find any fault with the decision arrived at by the lower appellate Court that the appellants'/defendants possession could have been traced to the alleged tenancy agreement and that even without embarking upon a detailed enquiry as to the genuineness and enforceability of the agreement for sale and without deciding the question of the jural relationship of landlord and tenant which had then been referred to the rent controller in the rent control proceedings initiated in the year 2002, the appellant could not be permitted to remove the existing thatched structure altere the physical features and put up new construction The lower appellate Court has also rightly held that, without entering upon the realm of the Rent Controller and without deciding the question as to whether the first appellant was entitled to get any relief under the alleged agreement for sale, the first appellant and the other appellants could be prevented from altering the physical features of the suit properties by putting up new constructions, as the possession of the first appellant could not be treated as a possession of agreement holder in part performance of the agreement for sale under Section 53(A)of the Transfer of Property Act, 1882. 9.This Court does not find any defect or infirmity in the judgment and decree of the lower appellate Court confirming the decree passed by the trial Court granting the relief of permanent injunction as prayed for by the respondent herein. For all the reasons stated above, the Second Appeal deserves to be dismissed. 10.Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs as the Second Appeal is dismissed at the admission stage itself. By way of clarification it is observed that the question of the jural relationship of landlord and tenant is left open to be agitated in the rent control proceedings. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The Additional Subordinate Judge, Kumbakonam. 2.The Additional District Munsif, Kumbakonam. Sj RP/30.05.2011/3P/3C. S.A(MD)NO.50 of 2011 17.02.2011 https://hcservices.ecourts.gov.in/hcservices/