IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.657 of 2003 & C.M.P.No.6290 of 2003 K.Durairaj .. Appellant / Appellant/ Plaintiff Vs. 1. Ashok Kakri 2. N.K.Shah .. Respondents / Respondents/ Defendants Second Appeal against the judgment and decree dated 8.11.2002 in A.S.No.205 of 1999 on the file of the Additional District Court (Fast Track Court No.2), Coimbatore, against the judgment and decree dated 29.7.1999 in O.S.No.1882 of 1992 on the file of the III Additional District Munsif Court, Coimbatore. For appellant : Mr.S.V.Jayaraman, Senior Counsel for Mr.R.T.Doraisamy For respondents: Mr.B.Ramamoorthy JUDGMENT The Second Appeal is filed by the plaintiff against the judgment and decree dated 8.11.2002 in A.S.No.205 of 1999 on the file of the Additional District Court (Fast Track Court No.2), Coimbatore, confirming the judgment and decree dated 29.7.1999 in O.S.No.1882 of 1992 on the file of the III Additional District Munsif Court, Coimbatore. 2. The averments in the plaint are as follows: (a) The plaintiff is the owner of the non-residential building. Apart from the suit property, he also owns other non- residential buildings adjacent to the suit property, which were let out to various tenants. The plaintiff is residing behind the suit property with his family. The defendants were his friends and the second defendant took the suit property on lease from the plaintiff on 19.2.1982 as per the unregistered lease agreement and paid the advance of Rs.7,500/- for running a non-vegetarian hotel under the https://hcservices.ecourts.gov.in/hcservices/ name of "Kabab Corner". The monthly rent was Rs.400/-. The first defendant took the premises bearing Door No.254-C, D, E, D.B. Road, Coimbatore, in the name of his wife Indu Kakri from the plaintiff, which is also adjacent building to the suit property. Thus, both the defendants were tenants under the plaintiff. The second defendant was tenant in Door No.254-C, D, E, wherein the first defendant was doing business in the name of his wife, just adjacent to the property. (b) Both the defendants were cordial and intimate and in the year 1984, some misunderstanding arose between the defendants, which ended in the litigation. So, they were unable to run the business and the second defendant surrendered the possession of the suit property to the plaintiff at the end of April 1984. Thereafter, the plaintiff let out the property to third parties. The plaintiff issued notice dated 24.5.1984 terminating the tenancy of the building in Door No.254-C, D, E, wherein the first defendant was doing business in the name of his wife. On receipt of the notice, the first defendant has stated that he was a tenant of the suit property and the second defendant was his Manager. The plaintiff has issued suitable reply. (c) In the meantime, the plaintiff had filed the suit for possession of D.No.254-C, D and E, against the wife of the first defendant and partners in O.S.No.626 of 1984 on the file of the Sub-Court, Coimbatore. The first defendant also filed the suit against the plaintiff in O.S.No.1486 of 1984 for possession of the suit property alleging that he was the tenant under the plaintiff and he was illegally dispossessed. On 13.3.1990, the suit in O.S.No.1486 of 1984 was allowed, stating that the first defendant is entitled to the possession of the property. The plaintiff preferred appeal in A.S.No.144 of 1990. The first respondent pleaded that it is a summary suit and under Section 6 of the Specific Relief Act, no appeal is maintainable. So, the appeal was dismissed. The plaintiff preferred a Civil Revision Petition before this Court with a delay excuse petition and the same was dismissed. (d) Now, the present suit is being filed under Section 6(4) of the Specific Relief Act, to decide the title of tenancy regarding the suit property. The first defendant was not a tenant. So far as the plaintiff is concerned, the second defendant was the tenant. Hence, it has become necessary for the plaintiff to file the suit for declaration that the second defendant was the tenant in the suit premises under the plaintiff from 19.2.1982 to April 1984 and also to restrain the first defendant from enforcing the decree in O.S.No.1486 of 1984 by way of permanent injunction and for cancelling the decree in O.S.No.1486 of 1984, dated 13.3.1990 on the file of the III Additional District Munsif Court, Coimbatore, and also for other relief. The plaintiff prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant are as follows: https://hcservices.ecourts.gov.in/hcservices/ The second defendant is only an employee under the first defendant. The second defendant colluded and trespassed into the demised property and took illegal possession. In O.S.No.1486 of 1984, it was finally adjudicated that the first defendant was forcibly thrown out of the demised premises and that he is entitled to possession as a tenant. So, the decree of the trial Court in O.S.No.1486 of 1984 has become final and enforceable. The first defendant admits title of the plaintiff and states that he is only a tenant under the plaintiff. There is no denial of title and the present suit does not satisfy the ingredients of Section 6(4) of the Specific Relief Act. The suit did not relate to the title. But the case of the first defendant is that he was forcibly evicted, was accepted. The decision in O.S.No.1486 of 1984 confirms the right of the first defendant as a tenant and proves that the plaintiff is the owner. So, the present suit is superfluous. The plaintiff is trying to create records by colluding with the second defendant and hence, he prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement, framed five issues and considering the evidence of P.Ws.1 and 2, D.Ws.1 and 2, Exs.A-1 to A-12 and Exs.B-1 to B-10, dismissed the suit. Against that, the plaintiff preferred appeal and the first appellate Court, after hearing the arguments of both the counsel, concurred with the findings of the trial Court and dismissed the appeal. Against that, the present Second Appeal has been preferred by the plaintiff. 5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether the Courts below are correct in coming to the conclusion that the plaintiff had not established his case that the 2nd defendant was the tenant under him after perusing the document Ex.A.2, the rental agreement between the plaintiff and the 2nd defendant and Ex.A.2, the receipt issued by the plaintiff for advance amount paid by the 2nd defendant with an endorsement of taking back the advance money? (ii) Whether the Courts below are correct in shifting the burden of proof with reference to the tenancy of the first defendant on the shoulders of the plaintiff when the first defendant claims that he is the tenant of the suit shop? (iii) Whether the Courts below are correct in holding that the first defendant is the tenant of the suit house, on the other hand, the first defendant establish that he is the Proprietor of the suit shop? and (iv) Whether the Courts below are correct in holding that judgment and decree in O.S.No.1486 of 1984 becomes https://hcservices.ecourts.gov.in/hcservices/ final when the validity of the judgment and decree was not tested by the appellate or revisional authorities?" 6. Substantial questions of law: The appellant as plaintiff filed the suit for declaration that the second defendant is a tenant under him from 19.2.1982 to April 1984 and also for permanent injunction not to enforce the decree in O.S.No.1486 of 1984 and also for cancellation of the decree passed in O.S.No.1486 of 1984, dated 13.3.1990, on the file of the III Additional District Munsif Court, Coimbatore, stating that the first defendant is not a tenant under him and even though the second defendant surrendered the possession who was a tenant, the first defendant filed the suit under Section 6 of the Specific Relief Act and obtained a decree. Against that, the plaintiff preferred appeal and the appeal was dismissed as not maintainable. The Civil Revision Petition filed along with a petition to condone the delay in preferring the Civil Revision Petition, was also dismissed and hence, the plaintiff has come forward with the present suit. 7. The first respondent as first defendant raised a contention that the suit itself is not maintainable. He alone was a tenant under the appellant-plaintiff and the judgment and decree passed in O.S.No.1486 of 1984 is final and enforceable in law. To avoid handing over of the possession, he has come forward with the present suit. Hence, he prayed for dismissal of the suit. 8. The trial Court framed necessary issues and considering the oral and documentary evidence, dismissed the suit stating that the suit is not maintainable. Against that, the plaintiff preferred appeal, which was also dismissed by the first appellate Court. Against that, the present Second Appeal has been preferred by the plaintiff. 9. Learned Senior Counsel appearing for the appellant- plaintiff would contend that the suit was filed by the plaintiff for declaration that the second defendant was the tenant under him and he has not contested the suit. The trial Court has not considered this aspect. The suit has been filed only under Section 6(4) of the Specific Relief Act. He further urged that a civil suit under Section 6(4) of the Specific Relief Act, is not barred. He relied upon the decision of a Division Bench of this Court reported in 1997 (1) L.W. 76 (Marimuthu,S. Vs. G.Kumaraswamy and others), a decision of this Court reported in Vol.80 L.W. 76 (Gopalakrishna Pillai Vs. Venkatesam Pillai) and a decision of the Gujarat High Court reported in AIR 1984 GUJARAT 66 (Mohd. Hussain Suleman Sk. Vs. Batukbhai) and argued that even in case where the plaintiff is dis-satisfied with a decree, under Section 6(4) of the Specific Relief Act, he can immediately initiate a suit for declaration of https://hcservices.ecourts.gov.in/hcservices/ his title and can claim the available consequential relief and the suit itself is maintainable. 10. Per contra, learned counsel for the respondents-defendants would contend that since the first respondent-first defendant is a tenant under the plaintiff, the second respondent-second defendant was only the Manager under him and he was forcibly evicted from running the non-vegetarian hotel, i.e. from the suit property and hence, he filed the suit in O.S.No.1486 of 1984 under Section 6 of the Specific Relief Act, which was allowed, but instead of handing over the possession to the first respondent-first defendant, he preferred appeal and the appeal was dismissed as not maintainable. Then, the appellant-plaintiff filed Civil Revision Petition along with a condone delay application under Section 5 of the Limitation Act. The condone delay application has also been dismissed and so, the judgment and decree passed in O.S.No.1486 of 1984 are final and since he is entitled for recovery of possession, to avoid the possession, the appellant-plaintiff has come forward with the present suit and so, the suit itself is not maintainable. The present suit is hit by res-judicata. Learned counsel for the respondents relied upon the decisions of the Supreme Court reported in AIR 1977 SC 1268 (Narayana Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna Prabhu (dead) by L.Rs.), 1999 (1) SCC 693 (Vijayabai Vs. Shriram Tukaram), 2002 (3) SCC 137 (S.R.Ejaz Vs. T.N. Handloom Weavers' Cooperative Society Ltd.) and a decision of this Court reported in 1999 (1) MLJ 480 = MANU/TN/1320/1998 (Marimuthu Vs. Savarimuthu and others) and argued that under Articles 21 and 300-A of the Constitution of India, only dispossession in due course of law can be accorded legitimacy by the Courts and forcible dispossession by influential persons and musclemen cannot be condoned. Learned counsel for the respondents prayed for dismissal of the Second Appeal. 11. The admitted fact is that the suit property absolutely belongs to the appellant-plaintiff. The property was leased out for running "Kabab Corner" as non-vegetarian hotel. Ex.A-1 is an unregistered lease agreement. As per Ex.A-2 = Ex.B-1, Rs.7,500/- has been paid and it is the receipt. The case of the appellant- plaintiff is that Ex.A-1 lease agreement has been entered by the second respondent-second defendant with the appellant-plaintiff and the second respondent-second defendant is the tenant. The second respondent-second defendant handed over the property to the appellant-plaintiff after the tenancy period was over. But the first respondent-first defendant filed the suit in O.S.No.1486 of 1984 under Section 6 of the Specific Relief Act and obtained a decree. The appellant-plaintiff has come forward with the present suit under Section 6(4) of the Specific Relief Act. At this juncture, the main argument advanced by the learned counsel for the respondents-defendants is that the present suit itself is not https://hcservices.ecourts.gov.in/hcservices/ maintainable. Moreover, the present suit has been filed under Section 6(4) of the Specific Relief Act to declare that the second respondent-second defendant was the tenant under him and also for cancellation of the decree in O.S.No.1486 of 1984 and also for permanent injunction not to enforce the decree in O.S.No.1486 of 1984. In such circumstances, the trial Court has dismissed the present suit and the first appellate Court concurred with the findings of the trial Court. 12. At this juncture, it is appropriate to state that the said Ex.A-1 lease agreement has not been produced before Court while suit in O.S.No.1486 of 1984 was contested, even though it was with the appellant-plaintiff. Exs.B-3, B-4, B-5 and B-6 clearly prove that the second respondent-second defendant was only the Manager of "Kabab Corner", but the Proprietor is the first respondent-first defendant and some of those documents came into existence prior to the earlier proceedings. The Second respondent-second defendant as a Manager of "Kabab Corner" was prosecuted in the criminal proceedings, which was even on 30.7.1982, which is evidenced by Exs.B-5 and B-6. The Registration Certificate also proves that the first respondent-first defendant was the Proprietor and the second respondent-second defendant was only the Manager. Considering these documents, for and on behalf of the Proprietor of "Kabab Corner", the second respondent-second defendant has signed Ex.A-1. Moreover, Ex.A-1 is an unregistered document. It is for more than 11 months. 13. It is also pertinent to note that the second respondent- second defendant has not participated in all the proceedings before the trial Court and the first appellate Court. There was difference of opinion between the first and second respondents and hence, the second respondent-second defendant will not support the case of the first respondent-first defendant. In such circumstances, it is the duty of the appellant-plaintiff to prove that the second respondent-second defendant was a tenant under him. All these facts have been considered by Court in Ex.A-5, which is the copy of the judgment in O.S.No.1486 of 1984. The documents now filed by the respondents-defendants have already been filed in the previous suit in O.S.No.1486 of 1984 and only on that basis, the judgment in O.S.No.1486 of 1984 has been pronounced, as seen from Ex.A-5. In such circumstances, I do not find any infirmity in the judgment of the trial Court and the first appellate Court has also come to the conclusion that the first respondent-first defendant alone was the tenant and the second respondent-second defendant was only the Manager. 14. It is appropriate to consider Section 44 of the Indian Evidence Act, since the suit has been filed to declare that the second respondent-second defendant was a tenant under the appellant-plaintiff and also for cancellation of the decree passed https://hcservices.ecourts.gov.in/hcservices/ in O.S.No.1486 of 1984. Section 44 of the Indian Evidence Act reads as follows: "Section 44: Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under sections 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion." 15. But there is no averment in the plaint stating that the judgment in O.S.No.1486 of 1984 has been obtained by fraud or collusion or due to incompetency of the Court. It is pertinent to note that as per Order 6 Rule 4 C.P.C., if there is any fraud or collusion, it is the duty of the plaintiff to specifically plead the same. But in the present case, nothing has been averred in the plaint. 16. The appellant-plaintiff has stated in the plaint that after the decree has been obtained as seen from Ex.A-5 in O.S.No.1486 of 1984, the plaintiff preferred A.S.No.114 of 1990. But as per Section 6(3) of the Specific Relief Act, no appeal shall lie and so, the appeal has been dismissed as not maintainable, as seen from Ex.A-7. As against the same, the plaintiff preferred a Civil Revision Petition before this Court, with a petition to condone the delay and the petition to condone the delay was also dismissed by this Court. Hence, the appellant-plaintiff has come forward with the present suit for cancellation of the decree in O.S.No.1486 of 1984, by invoking the provisions of Section 6(4) of the Specific Relief Act. 17. Section 6 of the Specific Relief Act reads as follows: "Section 6: Suit by person dispossessed of immovable property.--(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought-- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. https://hcservices.ecourts.gov.in/hcservices/ (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof." 18. Learned Senior Counsel for the appellant-plaintiff relied on the following decisions, relevant portions of which are quoted hereunder and he argued that the suit under Section 6(4) of the Specific Relief Act is maintainable: (i) 1997 (1) L.W. 76 (cited supra): "12.A. We must also observe that simply because after meeting failure in the summary suit under Section 6 of the Specific Relief Act, the plaintiff comes forward to file a title suit as the present one, he cannot be blamed that he is coming to Court with unclean hands, since only seeks the relief, which is provided under law. Section 6(4) of the Specific Relief Act itself says thus:- "Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof." Further, it must also be noted that while he succeeded initially in O.S.No.5884 of 1981 and got dismissal of the said suit against him, he failed only in the subsequent C.R.P.No.1382 of 1985. But, even in the order dated 5.7.1991 in the said C.R.P., the 1st respondent herein could not point out any strictures as such having been passed against the present plaintiff by the learned Judge of this Court, who passed the said order. Further, one other observation of the learned trial Judge, particularly the latter part of it is also, according to us, not proper. The said observation runs as follows:- "With eyes open, the trespass also continued for years together, and till the order was passed in C.R.P.No.1382 of 1995, he continued his unlawful possession, and only after the order was passed in the said C.R.P., he thought of filing a suit to declare his title with consequential reliefs." It is obvious that only after the abovesaid order in the C.R.P., the plaintiff would normally get cause of action for filing the present title suit. So, the plaintiff filing a suit only after the order in the C.R.P. cannot be put against him. Further only because there was some discrepancy regarding the extent between what is contained in the schedule to the abovesaid sale deed and the actual extent conveyed to him under the said https://hcservices.ecourts.gov.in/hcservices/ sale deed, the confusion arose, which led to the decree that was passed in the C.R.P. under Section 6 of the Specific Relief Act and the said confusion has also now been made clear by the learned trial Judge himself in the present suit. Therefore also, it cannot be said that there is any real justification for the remarks passed by the learned trial Judge in his judgment against the conduct of the plaintiff." (ii)Vol.80 L.W. 76 (cited supra): "Rejecting the contention, S.9 of the Specific Relief Act by itself imposes no specific bar to a suit by the defeated party in possession before surrendering possession. There is nothing in the language of the section to take away the remedies available to a person in possession of property as of right, and entitled to remain in possession. Of course, it goes without saying that then there is a valid decree for possession against a plaintiff, he will not be granted an injunction from executing that decree. If the legality of the decree is not questioned, a decreeholder cannot be restrained from executing the decree as between the parties to the decree. The object of the title suit is in substance to have the summary order for possession set aside on the basis of title and right to present possession. In such a suit if the plaintiff in possession has claimed declaration of his title, it may properly be followed by the consequential relief of injunction." (iii) AIR 1984 GUJARAT 66 (cited supra): "In a case where the plaintiff is dissatisfied with a decree under S.6 he can immediately institute a suit for declaration of his title and can claim the available consequential relief. That is, if he is in possession of the suit property, all that he can pray for is that status quo be maintained and an injunction be issued restraining the defendant from dispossessing him. However, while granting interim injunction the Court is required to consider all the relevant facts i.e. prima facie case, balance of convenience and irreparable injury to either party." 19. It is appropriate to consider the prayer in the plaint, which reads as follows: "The plaintiff therefore prays that this Hon'ble Court may be pleased to pass a decree against the defendants: https://hcservices.ecourts.gov.in/hcservices/ a) Declaring that the 2nd defendant herein was the tenant of the suit premises under the plaintiff from 19.2.82 to April 1984; b) Restraining the 1st defendant from enforcing the decree in O.S.No.1486 of 84 by a decree of permanent injunction; c) Cancelling the decree in O.S.No.1486 of 1984 dt.13.3.1990 on the file of the 3rd Additional District Munsif Court, Coimbatore. d) awarding the costs of the suit and to pass such and other suitable orders as the court deems fit and proper in the circumstances of the case." 20. As per Section 6(4) of the Specific Relief Act, the appellant-plaintiff is entitled to file a suit for declaration of title and recovery of possession. But the present suit is not for declaration of title to the property and recovery of possession. It has been filed for a declaration that the second respondent-second defendant was the tenant of the suit premises under the plaintiff and to restrain the first defendant from enforcing the decree in O.S.No.1486 of 84 by way of a decree of permanent injunction and for cancelling the decree in O.S.No.1486 of 1984. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents reported in 1999 (1) M.L.J. 480 = MANU/TN/1320/1998 (cited supra), wherein, it has been held as follows: "8. In this case, plaintiffs does not seek relief for themselves and what they claim is only a relief to declare that defendant is a member of back-ward community and revenue authorities