Dismissed

J.Dass v. Joint Commissioner/E.O.

Madras HC17 Nov 2021SA(MD)/84/2019

Case brief

AI extract

What is this about?

This second appeal challenged the Subordinate Judge's reversal of the trial court's dismissal of a suit for arrears of auction dues. The High Court dismissed the appeal in limine, holding that substantial questions of law did not arise regarding the validity of the surrender and the lease terms.

What did the court decide?

Second appeal dismissed. No order as to costs. Connected miscellaneous petition dismissed.

J.Dass Vs Joint Commissioner/E.O. — Landlord and Tenant | Madras HC (2021)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 17.11.2021 CORAM THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN S.A.(MD) No.84 of 2019 and CMP(MD) No.2358 of 2019

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J. Dass .. Appellant/ Respondent/ Defendant vs.

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Joint Commissioner/Executive Officer Arulmigu Ramanatha Samy Thirukoil, Rameswaram Ramanathapuram District .. Respondent/ Appellant/ Plaintiff

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Second Appeal filed under Section 100 of CPC against the Judgment and Decree of the learned Sub Ordinate Judge, Ramanathapuram dated 07.07.2017 in A.S. No.21 of 2013 and reversing the decree and judgment of the learned District Munsif cum Judicial Magistrate, Rameswaram dated 22.02.2013 in O.S. No. 28 of 2011 by allowing this second appeal.

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For Appellant : Mr.B.Senthil Kumar For Respondent : Mr. S.Ramesh

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JUDGMENT

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This Second Appeal is directed against the Judgment and Decree of the learned Subordinate Judge, Ramanathapuram, made in A.S. No.21 of 2013, dated 07.07.2017, reversing the Decree and Judgment of the learned District Munsif-cum-Judicial Magistrate, Rameswaram, dated 22.02.2013, in O.S. No. 28 of 2011.

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For the sake of convenience, the parties are referred to as, as described before the trial Court.

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The defendant, who succeeded before the Trial Court, but, failed before the first appellate court, has filed the present Second Appeal.

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The case of the plaintiff, in brief, as per the averments made in the plaint is that the plaintiff conducted auction for the usufructs trees in West Anjaneyar grove, Lakshmanan grove, Arasiyar grove, and Santhiya grove, which are under the administration of the plaintiff's temple. The defendant is the highest bidder in the auction held on 01.07.2007, for a period of three years from 01.07.2007 to 30.06.2010 that is from Fasli 1417 to Fasli 1419. The bid amount for the first Fasli year was fixed @ Rs.20,400/-; for the second Fasli year, it was fixed @ Rs.23,460/- and for the third Fasli year 1419, it was fixed @ Rs.26,979/-. The defendant, being https://hcservices.ecourts.gov.in/hcservices/ the highest bidder, paid the sum of Rs. 20,400/-, for the first Fasli year and failed to pay the value of the usufructs for the

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Fasli year 1418 and 1419, as per the terms of the auction. Inspite of several demands made by the plaintiff, the defendant failed to pay the amount of Rs.50,439/- collected from the said groves. Therefore, the plaintiff sent a Notice, dated 27.09.2010, to the defendant, through the registered post and the same was received by him, but he did not give reply. Since the defendant did not pay the amount of Rs.50,439/-, the plaintiff filed a Suit against the defendant in O.S.No.28 of 2011, on the file of the learned District Munsif-cum-Judicial Magistrate, Rameswaram, for claiming arrears of due of Rs.50,439/-, along with interest at 12% p.a.

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The defendant had filed a written statement interalia contending that the defendant took possession of groves on 24.09.2007, pursuant to the auction held on 01.07.2007. Since the defendant had incurred a loss of Rs.25,000/- in the first Fasli 1417 and he had to go to out station, he did not want to continue the said lease and therefore, the defendant surrendered the possession of the groves on 25.06.2008, by sending a letter to the plaintiff to accept the same. The defendant is not liable to pay any amount. The plaintiff has to repay the deposited amount of Rs.6000/- to the defendant.

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On the above pleadings, the Trial Court had framed the following issues for consideration:-

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(i) Whether the defendant had bidden for some other coconut grove as claimed by him ? ii) Whether the defendant had surrendered the coconut groves bid by him after 1417 Fasli on 25.06.2008 to the plaintiff as claimed by him? iii) Whether the plaintiff is entitled to recover Rs.50,434/- along with subsequent interest from the defendant? and

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(iv) What other reliefs the parties are entitled to?

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During the trial, the plaintiff was examined as PW1 and 9 documents were marked as Exs.A1 to A6, on the side of the plaintiff. The defendant examined himself as DW1 and three documents were marked as Exs. B.1 to B.3 on the side of the defendant.

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On analysis of the oral and documentary evidence, the Trial Court has dismissed the suit. Aggrieved by the same, the plaintiff has preferred an appeal in A.S. No.21 of 2013, on the file of the learned Subordinate Judge, Ramanathapuram.

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The first appellate court, after considering the oral and documentary evidence of the parties, had reversed the findings of the Trial Court. Aggrieved by the Judgment and decree passed by the first appellate Court, the present Second Appeal has been filed the https://hcservices.ecourts.gov.in/hcservices/ defendant.

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In the memorandum of Second Appeal, the appellant/defendant sought to raise the following substantial questions of law?

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(i) Whether the lease register maintained by the plaintiff temple cannot be considered as a lease agreement for more than one year period through unregistered instrument under Section 107 of Transfer of Property Act.

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(ii) Whether the lease is continued even after surrendering by the lessee within a period of one year and the same is terminated.

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(iii) Whether the plaintiff impliedly accepted the termination of lease and the plaintiff did not claim lease amount for 2^nd and 3^rd Fasli year itself.

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(iv) The first appellate Court failed to consider the 6^th conditions of Auction notice which in marked as Ex.A1. As per this condition, the plaintiff reserves their right for cancellation of auction, due to nonpayment of lease amount for at the time of commencement every Fasli year.

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The learned counsel appearing for the defendant / appellant would submit that the first appellate Court ought to have considered the fact that the defendant paid the Fasli amount of Rs.20,400/-, for the Fasli year 1417. Due to the loss sustained by the defendant to the tune of Rs.25,000/-, and had to go to out station, the defendant surrendered the groves to the plaintiff within a period of nine months and the same was accepted by the plaintiff. The first appellate court ought to have considered the Condition No.6 of the Auction Notification, dated 14.09.2007, which is marked as Ex.A1, in which it has been stated as follows:-

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“Vyk; $hhp bgw;wth; Vyk; Koe;jt [ld; Kjyhk; gryp Fj;jif bjhif Kgtija[k ; mg;bghGnj brYj;jntz;Lk;. kPjKs;s 2 grypf;Fk; Kd;ng KGj; bjhifiaa[k ; brYj;j ntz;Lk;. mt;thW brYj;jj; jtwpdhy; nkw;go Fj;jifia uj;J bra;tJld; gpiz itg;g [j ; bjhifiaa[k ; gwpKjy; bra;ag;gl;L jpUf;nfhtpYf;F Mjhakhf tut[ itf;fg;gLk;“

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As per the said condition, the plaintiff has power to take steps to cancel the lease for the Fasli year of 1418 and 1419. Further, the auction conditions are having binding effect on both the parties.

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Adding further, the learned counsel appearing for the appellant / defendant would contend that to upturn a well considered judgment of the trial court, the first appellate court, dealing with an Appeal under Section 96 C.P.C., should assign reasons indicating as to where the trial court has gone wrong and https://hcservices.ecourts.gov.in/hcservices/ what should have been the right approach. This exercise must be done by the first appellate court, when it intends to upturn a well considered judgment. Suffice to state that the first appellate has

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not done this important duty, keeping in mind the rigor of Section 96 C.P.C. which is a statutory right available to the aggrieved person. Hence, the learned counsel prayed for setting aside the Judgment made by the first appellate Court and allowing the Second Appeal.

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The learned Counsel appearing for the Respondent / Plaintiff would submit that the defendant was the highest bidder in the auction for the period of 3 years from 01.07.2007 till 30.06.2020., that is from Fasli 1417 to Fasli 1419. The bid amount for the first Fasli years was fixed @ Rs.20,400/-; for the second Fasli year, it was fixed @ Rs.23,460/- and for the third Fasli year 1419, it was fixed @ Rs.26,979/-. The defendant, being the highest bidder, paid the sum of Rs. 20,400/-, for the first Fasli year and he failed to pay the value of the usufructs for the Fasli year 1418 and 1419, as per the terms of the auction. Inspite of several demands made by the plaintiff, the defendant failed to pay the amount of Rs.50,439/-, collected from the said groves. Therefore, the plaintiff sent a Notice, dated 27.09.2010, to the defendant, through the registered post and the same was received by him, but he did not give any reply. Since the defendant did not pay the amount of Rs.50,439/-, the plaintiff filed a Suit against the defendant in O.S.No.28 of 2011, on the file of the learned District Munsif-cum-Judicial Magistrate, Rameswaram, for claiming arrears of due of Rs.50,439/- along with interest at 12% p.a, which was negative and on appeal in A.S.No.21 of 2013, the learned Subordinate Judge, Ramanathapuram reversed the findings of the trial Court and allowed the appeal with costs. The well considered Judgment of the first appellate court need not be interfered with and prayed for dismissal of the second appeal.

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14.This Court paid its anxious consideration to the rival submissions made and also perused the materials placed on record.

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It is not in dispute that the West Anjaneyar grove, Lakshmanan grove, Arasiyar grove, East Anjaneyar grove, Santhiya grove belong to the plaintiff's temple and is under the control and administration of the plaintiffs. Ex.A1 is the tender for the auction, dated 14.09.2007 and Ex.A2 is the Auction Register. It is evident from Exs.A1 and A2 that the usufructs from the trees in the above said groves were auctioned in favour of the defendant for a period of three years from 01.07.2007 till 30.06.2010, that is from Fasli 1417 to Fasli 1419, in an auction held by the plaintiff's temple, as he was the highest bidder and that the amount for the first Fasli year 1417 was fixed as Rs.20,400/- and for the second Fasli year 1418 was fixed as Rs.23,460/- and that for the third Fasli year 1419 was fixed as Rs.26,979/-.

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The plaintiff contended that the defendant had failed to pay the auction amount for Fasli year 1418 and 1419 and therefore, https://hcservices.ecourts.gov.in/hcservices/ he is liable to pay a sum of Rs.50,434/- with interests. But, the defendant contended that, since he surrendered the said groves to

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the plaintiff's temple on 25.06.2008, he is not liable to pay the quantified auction amount for the said Fasli years. In order to prove his contention, the defendant relied Ex.B2, which is a letter, dated 25.06.2008, sent by the defendant to the Joint Commissioner of the plaintiff's temple stating that he had to go to out station, he was surrendering the groves. The plaintiff's temple had sent a reply Ex.B3, dated 20.08.2008, to the defendant, stating that, since the defendant had agreed to take right to collect the usufructs from the groves for a period of 3 Fasli years, contrary to the agreement, the unilateral surrender cannot be accepted and therefore, advised the defedant to pay the balance amount for the rest of the two Fasli years.

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Of course, if the defendant really intended to surrender the possession, he should have resorted to some legal procedures for cancelling the contract and to surrender the possession. Even after receipt of Ex.B3 reply memo, the defendant had ramained silent till the date of filing of the suit and it could be presumed that the defendant had accepted the refusal of the plaintiff's temple to accept the surrender of possession. No oral and documentary evidence had been adduced by the defendant to prove the handing over of possession and acceptance of the same by the plaintiff's temple. These are pure findings of fact, from which, there cannot be any substantial question of law. No question of law, much less any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the Memorandum of Appeal also do not arise for determination in this Second Appeal, which is liable to be dismissed in limine.

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18.In fine, the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.

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Assistant Registrar (CS-II)

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// True Copy //

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/ /2021 Sub Assistant Registrar(CS)

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aav

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Note: In view of the present lock down owing to COVID 19 pandemic, a web copy of the order may be utilised for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

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https://hcservices.ecourts.gov.in/hcservices/

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Sub Judge,

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Ramanathapuram.

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The District Munsif cum Judicial Magistrate, Rameswaram.

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Copy to: The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.(2 copies)

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+1 CC to M/s.V. RAGHAVACHARI, Advocate ( SR-35222[F] dated 19/11/2021 )

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S.A.(MD) No.84 of 2019 17.11.2021

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RD(20.12.2021) 6P 6C

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https://hcservices.ecourts.gov.in/hcservices/

J.Dass v. Joint Commissioner/E.O.

Case brief

What is this about?

What did the court decide?

J.Dass v. Joint Commissioner/E.O.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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