IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 7.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.763 of 2007 Shanthi .. Appellants/Plaintiff Vs. 1. Javarammal 2. Rajappan 3. Swamy Sekar @ Pappaanan .. Respondents/Defendants The second appeal has been filed against the judgment and decree dated 27.3.2007, made in A.S.No.78 of 2006, on the file of the Sub Court, of the Nilgiri at Uthagamandalam, confirming the judgment and decree dated 31.8.2006, made in O.S.No.253 of 2004, on the file of the District Munsif, Uthagamandalam. For Appellant : Mr.Srinath Sridevan For Respondents : Mr.J.Franklin J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 27.3.2007, made in A.S.No.78 of 2006, on the file of the Subordinate Court, Udagamandalam, confirming the judgment and decree, dated 31.8.2006, made in O.S.No.253 of 2004, on the file of the District Munsif Court, Udagamandalam. 2. The plaintiff in the suit, in O.S.No.253 of 2004, is the appellant in the present second appeal. The defendants in the said suit are the respondents herein. 3. The plaintiff in the suit had stated that he is an encroacher in the land, in S.No.4789/6 (new R.S. No.5) having an extent of 3 cents. She had constructed a house and a shed in the said property https://hcservices.ecourts.gov.in/hcservices/ bearing door No.167. She has been in occupation of the said property for more than 15 years. The defendants, who are strangers to the suit schedule property, are attempting to trespass into the plaintiff’s house and the shed with the mala fide intention of damaging the house and the shed. The plaintiff, who is a poor lady, is eking out her livelihood by rearing cows in the suit shed. In such circumstances, the plaintiff had filed the suit praying for the relief of permanent injunction against the defendants. 4. In the written statement filed on behalf of the defendants, it has been stated that the plaintiff had never encroached upon the suit property at any point of time. She is not in possession of the suit property. One Late M.N.Lingan @ lingiah, the husband of the first defendant and the father of the second defendant, was the original owner of the property. The house bearing door No.246/C in old R.S.No.4789/6 (new R.S.No.5) belonged to him by virtue of an assignment patta issued by the Collector of the Nilgiris. After his demise, the legal heirs, including the defendants 1 and 2 had inherited the property and are in possession of the same by paying the necessary property tax, till date. The plaintiff is the tenant in one of the portions of the said house bearing Door No.246/C (part) and a cowshed thereon under the legal representatives of the said Lingan @ lingiah, on a monthly rent of Rs.250/-. In spite of the repeated demands made by the defendants 1 and 2, the plaintiff had failed to pay the rents from the month of November, 2002. Therefore, the defendants 1 and 2 had requested the plaintiff to vacate the said portion and the cowshed. However, the plaintiff had failed to do so. There is no revenue land existing, which is said to have been encroached upon by the plaintiff, in R.S.No.4789/6. Since the plaintiff is the tenant under the defendants 1 and 2, there is no necessity for the defendants to trespass into the suit property, as alleged by the plaintiff. The plaintiff has filed the suit only with the mala fide intention of claiming title, by adverse possession, over the suit property. Since, the suit filed by the plaintiff is without any cause of action, it is devoid of merits. 5. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: "1. Whether the plaintiff has got any right over the suit schedule property? 2. Whether the plaintiff is in possession of the suit schedule property? 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? 4. To what other reliefs, the plaintiff is entitled to?" https://hcservices.ecourts.gov.in/hcservices/ 6. The plaintiff had filed four documents in her favour, marked as Exhibits A.1 to A.4. Three witnesses had been examined on behalf of the plaintiff, as P.W.1 to P.W.3. 11 documents had been marked on behalf of the defendants, as Exhibits B.1 to B.11. D.W.1 and D.W.2 had been examined as witnesses on behalf of the defendants. C.W.1 and C.W.2 were examined as Court witnesses. 7. Based on the evidence adduced on behalf of the plaintiff, as well as the defendants, the trial Court had come to the conclusion that the entire extent of 0.03-3/4 acres in S.No.4789/6 (new R.S.No.5) belongs to the first defendant, rejecting the contention of the plaintiff that she is entitled to the suit schedule property. 8. The trial Court had also come to the conclusion that the plaintiff had failed to explain as to the manner in which she had claimed her rights over the suit property. The trial Court had come to the conclusion that, by merely encroaching into the defendants' property and by putting up a construction, the plaintiff cannot claim that she would derive title in the said property. Further, the trial Court had held that the plaintiff had failed to establish that she had constructed a house and a cowshed. Since, the plaintiff had not admitted the title of the first defendant, in respect of the suit schedule property and as she had not claimed her title by way of adverse possession, her claims cannot be accepted. However, the trial Court had noted that the defendants had admitted that the plaintiff is in possession of the suit schedule property, as a tenant. 9. Further, the trial Court had found that the plaintiff had claimed that she was living in the house bearing Door No.167, based on the documents marked as Exhibits A.1 to A.3. Therefore, it had been held that there is no substance in the contention of the defendants that the door number of the house, occupied by the plaintiff, is 246/C (part). As such, the trial Court had concluded that the plaintiff is in possession in the suit schedule house and in the cowshed. In such circumstances, the trial Court had come to the conclusion that the relief of permanent injunction sought for by the plaintiff cannot be granted against the defendants, as they are the owners of the suit schedule property. However, since the defendants had admitted that the plaintiff was a tenant in the property, the trial Court had come to the conclusion that the plaintiff cannot be evicted from the suit property, except by the due process of law, enumerated under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 10. Aggrieved by the judgment and decree of the trial Court, dated 31.8.2006, the plaintiff had filed an appeal before the subordinate Court, Udagmandalam, in A.S.No.78 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 11. The first appellate court had framed the following points for consideration: "1. Whether the impugned judgment and decree of the trial Court are sustainable in law? 2. To what relief the appellant/plaintiff is entitled for?" 12. Based on the averments made on behalf of the parties concerned and in view of the evidence available on record, the first appellate Court had dismissed the appeal confirming the judgment and decree of the trial Court. 13. Aggrieved by the judgment and decree of the first appellate Court, the plaintiff in the suit, who was the appellant in the fist appeal, had preferred the present second appeal before this court raising the following questions, as substantial questions of law: "i. Whether the failure of the Sub Court to consider Exhibit A.1 will not vitiate its judgment? ii. Whether the finding of the sub Court that the plaintiff failed to identify the survey number of the suit property is correct in law, when the plaintiff has properly identified the suit property by door number? iii. In a suit for bare injunction, when once the defendants admit the plaintiff’s possession on date of suit, but set up a plea of tenancy, whether the burden of proof does not shift onto the defendants to then prove the tenancy?" 14. The learned counsel for the appellant had stated that the courts below had erred in law in failing to note that the suit was for the relief of bare injunction and therefore, the title in respect of the suit property ought not to have been decided by the courts below. The courts below had erred in not appreciating Exhibit A.1 in its proper context. Instead, the Courts below had given too much of importance to the discrepancies existing in the survey number of the property concerned and the door numbers of the house in which the plaintiff was residing. Further, the courts below had erred in coming https://hcservices.ecourts.gov.in/hcservices/ to the conclusion that the plaintiff was a tenant in respect of the suit property based merely on the admission of the defendants, without any other supporting evidence. 15. The learned counsel appearing for the defendants in the suit, who are the respondents in the present second appeal, had submitted that both the courts below had rightly arrived at their conclusions, based on the evidence available on record. The courts below were correct in concluding that the defendants are the owners of the suit schedule property and that the plaintiff is a tenant in the said property. 16. The learned counsel had further submitted that the appellant had not proved her claim that she is an encroacher in the suit property, as claimed by her. As such, the trial Court, as well as the first appellate Court had rightly dismissed the suit rejecting the claims made by the plaintiff, who is the appellant in the present second appeal. 17. At this stage of the hearing of the second appeal, the learned counsel for the appellant had submitted that the courts below had erred in traversing beyond the scope of the suit in coming to their conclusions, holding that the plaintiff/appellant is a tenant under the defendants/respondents, merely on the admission made by the defendants, without any other evidence, either oral or documentary, to support such a conclusion. Such a finding rendered by the courts below would be adversely affecting the rights of the appellant in the second appeal, in the rent control proceedings initiated by the respondents before the Rent Controller, Udagamandalam, in R.C.O.P.No.13 of 2005. The learned counsel for the respondents was not in a position to state as to how the finding by the Courts below, that the appellant was a tenant under the respondents could be sustainable in law. 18. In such circumstances, the learned counsel for the appellant had submitted that it would suffice if this Court makes it clear that the finding given by the courts below, with regard to the status of the appellant, stating that she is a tenant under the respondents, is not based on evidence and therefore, it cannot be sustained in the eye of law. He had also prayed that this Court may be pleased to make it clear that it would be left open to the Rent Controller, Udagmandalam, in R.C.O.P.No.13 of 2005, pending on his file, to examine the issue as to whether the appellant is a tenant under the respondents, based on the evidence to be adduced in the said rent control proceedings. https://hcservices.ecourts.gov.in/hcservices/ 19. In view of the submissions made by the learned counsel for the appellant, as well as the respondents, this Court finds it appropriate to hold that the findings of the courts below, stating that the appellant is a tenant under the respondents, cannot be sustained, in view of the fact that it is based on no other evidence, except the admission of the respondents. Further, it is made clear that it would be open to the rent controller, Udagamandalam, in R.C.O.P.No.13 of 2005, said to be pending on his file, to examine the issue based on the evidence adduced before him, in accordance with law. The second appeal is ordered accordingly. No costs. Consequently, connected M.P.No.1 of 2007 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Sub Court, of the Nilgiri at Uthagamandalam 2. The District Munsif,Uthagamandalam 3. The Section Officer, VR Section, High Court, Madras S.A.No.763 of 2007 MRD (CO) RH (27.8.10) https://hcservices.ecourts.gov.in/hcservices/