IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1242 of 2010 1. Mary 2. Rani 3. Gandhi 4. Latha 5. Babu 6. Kumar @ Prem Kumar 7. Rita 8. Thinamani 9. Vinod 10.Philomina 11.Thomas .. Appellants/ (Defendants 2,4 to 13) vs. Vasanthakumari .. Respondent (Plaintiff) This second appeal is filed against the judgment and decree of the learned Subordinate Judge, Poonamallee in A.S.No.58 of 2009 dated 09.06.2010 thereby dismissing the appeal and confirming the judgment and decree of the learned Principal District Munsif, Poonamalle dated 30.07.2009 and passed in O.S.No.1683 of 1988 and praying that both the aforesaid judgments and decrees of the trial Court and the lower appellate Court may be set aside. For Appellants : Mr.M.Saravanakumar for M/s Majestic Law Firm For Respondent : Mr.A.Palaniappan J U D G M E N T This second appeal is focussed animadverting upon the judgement and decree dated 09.06.2010 passed in A.S.No.58 of 2009 by the learned Subordinate Judge, Poonamallee confirming the judgment and decree of the learned Principal District Munsif, Poonamalle in O.S.No.1683 of 1988. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: "(a) For recovery of possession of vacant suit property after removal of the thatched superstructure illegally put up by the defendant. (b) For costs of the suit." (extracted as such) (b) The defendants filed the written statement resisting the suit. (c) Whereupon issues were framed. (d) On the side of the plaintiff, one Mr.Subramani was examined as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B1 to B5 were marked. Ex.C1 was marked as Court document. (e) Ultimately the trial Court decreed the suit. Being aggrieved by and dissatisfied with the same, appeal was filed for nothing but to to be dismissed confirming the judgment and decree of the trial Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that the defendants have been in possession and enjoyment of the suit property ever since 1954, but both the Courts below failed to take note of the same. The fact remains that the defendants had put up thatched shed over the land concerned and that fact was also not considered by the Courts below. The defendants were paying the land rent at the rate of Rs.5/- per month in addition to having paid the rental advance of Rs.3,000/- to the land owner and as such the superstructure belongs to the defendant. These facts were not at all considered by the Courts below. The defendants filed O.S.No.749 of 1988 and obtained an order of injunction against the respondent even in the year 1988. 4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal: "(1) Whether the Courts below were right in concluding that the appellants/defendants, who https://hcservices.ecourts.gov.in/hcservices/ are admittedly the owners of the building and the tenants in respect of the land only for several years, have no rights over the suit property? (2) Whether the respondent/plaintiff is a bonafide purchaser without knowledge, while evidently the appellants are in possession of the suit property for more than several decades thereby owing the buildings and occupying the premises as tenants in respect of the land only? (3) Whether the husband of the respondent/plaintiff, has any necessary right or authority or any locustandi or he is in any way legally entitled to give evidence on her behalf as P.W.1 in terms of the Evidence Act? (4) When the appellants or the tenants in respect of the land only and owners of the buildings, whether they are entitled to purchase the land in term of Sec.9 of the Tenants Protection Act or not? (extracted as such) 5. Heard both sides. 6. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. A mere poring over and perusal of those judgments would exemplify and demonstrate that unless there is any substantial question of law is involved in the Second Appeal, the question of entertaining the same would not arise. Hence, it is just and necessary to find out as to whether any such substantial question of law is involved or whether there is any perversity or illegality in the judgments and decrees passed by both the Courts below. 7. The gist and kernel of the arguments as put forth and set forth on the side of the appellants/defendants would run thus: (a) The courts below failed to read the evidence in the proper perspective and in fact they misread the evidence. What the https://hcservices.ecourts.gov.in/hcservices/ defendants contended before the trial Court was that they entered into possession of the vacant site referred to in the plaint under the said Kanniappa's vendor, but it was understood by the Court as though the defendants entered into possession under Kanniappan. (b) The superstructure was put up by the defendants and they have been there ever since 1954 and that fact also was not considered by both the Courts below. As such pressing into service the proposed substantial questions of law, the learned counsel for the appellants/defendants would pray for setting aside the judgments and decrees of both the Courts below and for dismissing the original suit. 8. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would advance his arguments which could tersely and briefly be set out thus: The Courts below appropriately and appositely, correctly and convincingly referred to the evidence of D.W.1 and extracted the relevant portion which would exemplify and demonstrate, display and project that D.W.1 falsely stated as though he has been occupying the suit property under Kanniappan ever since 1954, when in fact Kanniappan himself became the owner of the property only in the year 1971. This evidence glaringly and pellucidly, in addition, axiomatically evincing and conveying that the defendants uttered out falsehood. 9. A mere poring over and perusal of the judgments of both the Courts below would display and demonstrate that the said Kanniappan himself acquired the suit property only in the year 1971 vide the sale deed, Ex.A1 dated 15.03.1971 and in such a case, out of over enthusiasm and with an intention to impress the Court the defendants illegally stooped to the level of uttering out such a falsehood before the trial Court. The I.A. was filed under Section 9 of the City Tenant's Protection Act before the trial Court and it was dismissed as against which no further action was taken over and above that the defendants cannot blow hot and cold. In one breath the defendants would state that they became the owners of the property and in another breath they would state that they are the tenants in the property. 10. At this juncture, I recollect the maxim : Quod approbo non reprobo: That which is approved is not reproved. https://hcservices.ecourts.gov.in/hcservices/ As such both the courts below correctly took into account the fact that the plaintiff by virtue of oral and documentary evidence established his right over the property, whereas the defendants filed the written statement and adduced evidence with antithetical and self contradictory averments and pleas. 11. The proposed first substantial question of law No.1 is far from satisfactory for the reason that in one breath the defendants would contend as though they became the owners and in another breath they would contend they are the tenants. 12. The proposed second substantial question of law is relating to the title of the plaintiff. But both the Courts below as has been pointed out supra, referred to the documents of title and held that the plaintiff has got title. 13. The proposed third substantial question of law is relating to the locus standi and I am of the view that once it is held that the plaintiff is the owner of a property, it should necessarily be taken that such a owner has got the right to evict a person in occupation of the property. 14. The proposed fourth substantial question of law is relating to Section 9 of the City Tenants' Protection Act and both the Courts below correctly stated that the application filed was dismissed as untenable and no further action had been taken. 15. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that the person who wants to invoke Section 9 of the said Act cannot plead that he is the owner, but in this case the defendants pleaded that they were the owners of the property and in that sense Section 9 is not applicable. 16. Hence, I could see no perversity or illegality in the judgments passed by both the Courts below. Accordingly, I could see no merit in the contention of the appellants and the Second Appeal is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Gms https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, Poonamallee. 2. The Principal District Munsif, Poonamalle. 2 ccs to M/s. Majestic Law Firm, Advocate, Sr. 4446 1 cc to Mr.A. Palaniappan, Advocate, Sr. 4765 S.A.No.1242 of 2010 JRG (CO) kk 31/1 https://hcservices.ecourts.gov.in/hcservices/