1. The plaintiff is the appellant. She died during the pendency of this appeal and her legal representative, appellants 2 and 3 continue the appeal. For the sake of convenience, the plaintiff alone will be referred to in this judgment.
2. The suit was for a declaration that the plaintiff is the absolute owner of the property described in the plaint Schedule and that the defendant is her tenant of the premises and is not entitled to any rights of a 'tenant' under the Madras Act III of 1922 (as amended) in respect of the plaint schedule property and also for a decree against the defendant for arrears of rent. The suit property is described as house, ground and premises now bearing municipal door No. 34-A, Bangaru Reddy St, Corporation Dn No. 44, Madras bearing R.S. No. 28/4 measuring east to west 83 ft. and north to south 411/2 ft. together with the structures thereon. The defendant contended that he came into occupation of the premises about 44 years ago, that in or about 1940 the defendant attorned to the plaintiff's step-brother, about 28 years back, the old ricketty, dilapidated mud construction was completely washed away, that immediately thereafter the defendant was permitted to continue as a tenant of the land only on a monthly rent of Rs. 5 and that the defendant was permitted to put up superstructures thereon. He further contended that accordingly he spent considerable sums of money and put up three superstructures (brickwalled constructions and zinc sheet shed) on the land leased in the hope and assurance that he will not be evicted therefrom, that he has been very regular in the payment of rents and that thus he is the owner of the superstructure and the plaintiff cannot lay claim to the buildings. His further contention was that he is entitled to the benefits of, and protection under, the Madras City Tenants Protection Act.
3. The trial Court, on the issues framed in the suit, came to the conclusion that the suit is maintainable, that the defendant is a tenant of the building as such, that he is not entitled to the benefits of the Madras City Tenants protection Act and that he is liable to pay rent for the superstructures. On appeal, the Additional judge, City Civil Court, observed that the plaintiff has failed to claim the relief of possession and held that the suit is not maintainable. As regards ownership of the building, the lower appellate court held that the building that originally existed on the suit land fell down completely in the year 1942-43, that when the land was lying vacant, the defendant took it on lease and constructed the present building in or about 1943-44 and that the defendant is a tenant of only the land. On these findings, the lower appellate court dismissed the suit for declaration filed by the plaintiff-appellant.
Aggrieved by the judgment and decree of the lower appellate court, the plaintiff has preferred this appeal.
4. Thiru v. Vedantachari, the learned counsel for the appellant, submitted that the suit for declaration with a consequential relief of getting arrears of rent, in the circumstances of the present case, is maintainable. The learned counsel attacked the judgment of the lower appellate court on the ground that the findings given by the lower appellate court are not on proper discussion of all the relevant materials on record but the same seem to be inferences, presumptions and assumptions without relevance to the evidence on record. He also submitted that the building that originally existed on the suit land fell down completely in the year 1942-43 that when the land was lying vacant, the defendant took it on lease and constructed the present building in or about 1943-44 and that the defendant is a tenant of only the land, is not based upon proper evidence.
5. Thiru Kanakaraj the learned counsel for the respondent, supported the judgment of the lower appellate court and submitted that the suit is not maintainable in view of the fact that the appellant has not asked for possession of the suit property. He also submitted that Ex. A-8 counter-foils of rent receipt book cannot be taken as mentioning that the respondent is the tenant of the 'house' since the signature in the counterfoils was obtained without making the respondent understand the contents thereof. The learned counsel once again reiterated that the house which was originally taken on rent fell down in ruins in about 1942, that a new building was built in that place by the respondent and that he paid rent only in respect of the 'site' from that time onwards.
The learned counsel for the appellant took mew through the relevant portions of the appellate judgment and pointed out that the lower appellate court has not discussed properly Exs. A-1 to A-7 that the findings given by the lower appellate Court are not based upon any documentary or oral evidence. The learned counsel also stated that the lower appellate court has not considered Exs. A-10 to A-12, A-15 and A-16 before reversing the judgment of the trial Court. And that acceptance of the inspection report of the engineer which has been done without notice to the appellant-plaintiff, is against law and that if the lower appellate Court had properly construed the above documents and also Exs. A-18 to A-22 which are house tax receipts issued by the Panchayat Board, Sembiam, in favour of the appellants' settlor, Ramchandra Naidu, it would have correctly appreciated the case on hand.
6. On going through the judgment of the lower appellate Court it is clear that many of the documents referred to above have not been considered at all by it. As regards the documents considered by it, I am of the view that there is no warrant for the conclusion thereon that the entire superstructure was built by the respondent. Further, the finding as if the defendant took on lease the vacant land and constructed the present building in or about 1943-44 is a finding without evidence.
7. The appellant is the step-sister of P.W. 1 P.W. 1 purchased the suit property under Ex. A-6, Exs. A-1 and A-5 are the prior title deeds given to P.W. 1. The description of the property in Ex. A-6 is: 'Land and mudbuilt wall with superstructure consisting of teak-wood and tiles'. But the description in Ex. A-2 is that the wall is built with roofing of teak wood rafters and tiles. In Exs. A-3 and A-4 also, the property had been described as 'brick built wall with superstructure'. In Ex. A-5 the wall has been described as a 'mud wall'. Ex. A-1 is dated 21-8-1915, wherein the wall is described as a 'mud wall' Exs. A-3 and A-4 of the year 1928 described the wall as a 'brick built wall'. But Exs. A-5 and A-6 describe the wall as 'mud wall'. It is not the case of the respondent under Exs. A-2, A-3 and A-4 was demolished and mud wall constructed., On the other hand, it can be safely inferred that the description mentioned in Ex. A-1 would have been simply copied out in Exs. A-5 and A-6 while describing the property. Hence the description as 'mud wall' in Exs. A-5 and A-6 can be safely ignored in view of the present state of the wall, supported by the description of the wall as 'brick built wall' in Exs. A-2 to A-4. This inference can be fortified by Ex. A-7 which is of the year 1956, wherein the property has been described as 'house, ground and premises bearing door No. 29 Bangaru Reddy St, Chinna Sembarambakka, Iyyanavaram, Madras.' The settlement under Ex. A-7 was many years earlier to the institution of the present suit. As such no motive can be imputed regarding the description of property as found therein, which makes it clear that the appellant is the owner of the house, ground and premises bearing door No. 29 Bangaru Reddy St, Chinna Sembarambakkam, Iyyanavaram, Madras.
As early as 26-11-1962, under the original of Ex. A-15 the appellant has stated in her notice that the respondent was all along accepting receipts as tenant of the building and that he cannot suddenly send money order purporting to have been transformed into a tenant of the land. Ex. A-16 evidences attornment of tenancy by the respondent in favour of the appellant's settlor. It is dated 1-12-1960. In Ex. A-16, the respondent has accepted that the appellant's settlor is the owner of the land and the house situate thereon. Ex. A-8, A-9 and A-9(a) which are books of counterfoils of rent receipts given to the respondent for the years 1958 to 1962 clearly make out the case that the respondent is a tenant of the superstructure. This is fortified by Exs. A-31 to A-35 which are correspondence that passed between the appellant's settlor and the Corporation of Madras in respect of the suit property. Exs. A-17 to A-22 which are house tax demand notices and receipts issued by the Panchayat Board, Sembiam to the appellant's settlor, clearly make out the case that the appellant is the owner of the superstructure. There is absolutely no document prior to 1962 to show that the respondent was paying the assessment. It is also interesting to note that this area was not included in the city limits of the Madras Corporation and was a panchayat area for a long number of years. The absence of any receipts from 1943 onwards cannot in any way advance the case of the respondent.
8. It is the admitted case that the respondent became a tenant in respect of the superstructure and it is also the admitted case that the respondent attorned the tenancy under Ex. A-16 to the appellant's settlor., in such circumstances, there must be conclusive evidence for the destruction of the original superstructure and for the putting of a new superstructure by the respondent and for taking up a new tenancy in respect of the vacant site. Even though there is oral evidence adduced by the respondent's witnesses as to the destruction of the old superstructure and the construction of a new one in its place by the respondent, I do not think that that would be sufficient to establish ownership with the respondent of the superstructure that is standing now. The plaintiff's evidence coupled with the clinching documentary evidence, such as Exs. A-15, A-16, A-8, A-9 and A-9(a) and A-18 to A-22, clearly establish the ownership of the appellant in respect of the said superstructure. Even assuming it is a question of appreciation of evidence as regards the ownership of the superstructure, the failure on the part of the lower appellate court to discuss the relevant evidence, enumerated above, clearly vitiated the findings arrived at by it. The lower appellate court, as the final court of facts, ought to have discussed all the relevant and material evidence before it has given a finding as regards the ownership of the superstructure. Apart from this, there is absolutely no evidence for the conclusion it arrived at, that there was a tenancy in favour of the respondent in respect of the vacant site. In these circumstances, I am of the view that it is the appellant who is the owner of the superstructure and as such she is entitled to the declaration she has prayed for.
9. The next question is as regards the maintainability of the suit. It is clear after the amendment of the plaint, the prayer includes the consequential relief of recovery of arrears of rent. It is needless to say that eviction of tenant is governed by the Madras Building (Lease and Rent Control) Act. In view of the fact that the respondent claimed the superstructure as his own and in view of the fact that claiming possession from a tenant of a building is governed by a special enactment, I do not think there is any need for the landlord who prays for a declaration that she is the owner of the superstructure, to pray for the relief of possession also. The question of getting possession from a tenant cannot be successfully agitated in a suit except by way of an application under the Madras Building (Lease and Rent Control) Act.
Thiru Kankaraj cited Chockalingapeshana Naicker v. Achiyar, ILR (1876) Mad 40. There a Bench of this court held that the provisions as to declaratory suits requires a great care and circumspection in its application and that a declaratory decree should not be made where the object of the plaintiff is to evade the stamp laws, or to eject under colour of a mere declaration of title. In view of my discussion above, I do not think that the appellant intends to use the declaratory decree to evade stamp laws or to eject the tenant under colour of such declaration. Hence, the above decision is not applicable to the facts of this case.
10. In view of my finding that the appellant is the owner of the superstructure, I do not think it is necessary to consider the decisions in Natesa Naicker v. Arumugha Naicker, (1968) 81 MLW 325; Ramachandra Naidu v. parameswaran Nair, : (1970)1MLJ578 and Haridas Girdhardas v. Varadaraja Pillai, : (1971)1MLJ200 cited by Thiru V. Vedantachari, the learned counsel for the appellant in support of the preposition of creation of a new tenancy on the facts of the case and for the position that the respondent is not entitled to the benefits of the Madras City Tenants Protection Act in view of the clear finding that even the original tenancy is in respect of the superstructure and that tenancy is subsisting even today owing to the fact that the superstructure belongs to the appellant.
11. Thiru V. Vedanthachari cited Veerappa Mudaliar v. Venugopala Mudaliar, : AIR1967Mad404 , wherein Srinivasan J., has held that a suit for a mere declaration of title without a prayer for possession will be maintainable when the declaration of title is sought in respect of properties in the possession of the cultivating tenants governed by the Madras Cultivating Tenants Protection Act which prevents actual possession being taken, the tenants being entitled to continue in possession. In the case on had, the tenant comes under the purview of the Madras Buildings (Lease and Rent Control) Act and as such the suit for a mere declaration is maintainable. Hence I am of the view that the suit for declaration with a prayer for recovery of arrears of rent is maintainable.
12. In these circumstances, the second appeal is allowed and the suit is decreed as prayed for. There will be no order as to costs in this appeal. No leave.