This second appeal has been filed by the plaintiff, animadverting upon the judgement and decree dated 21.1.2008 passed by the learned V Additional City Civil Judge, Chennai, in A.S.No.414 of 2006, confirming the judgement and decree dated 19.4.2006 passed by the learned 1st Asst.City Civil Court, Chennai, in O.S.No.5176 of 2004.. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
(a) The appellant/plaintiff filed the suit O.S.No.5176 of 2004 as against the defendants, seeking the following reliefs:
"i. To direct the defendants to quit and deliver vacant possession of the suit property;
ii. To pay the mesne profits arising out of the property both past and future."
(extracted as found in the plaint) as against which, the defendants filed the written statement and resisted the suit.
(b) During enquiry, the trial Court framed the relevant issues. The plaintiff examined herself as P.W.1 along with one Sekar as P.W.2 and Exs.A1 to A.5 were marked. The second defendant examined himself as D.W.1 along with one R.Janaki as D.W.2 and no documents were got marked.
(c) Ultimately the trial Court dismissed the suit, as against which, the plaintiff filed the A.S.No.414 of 2006, for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court.
3. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds.
4. My learned predecessor, admitted the second appeal on the following substantial questions of law:
"1.Whether the decree and judgement of the appellate Court is legally sustainable in view of the fact that the appellate Court failed to take into account Ex.A1., viz., a letter terminating the permissive occupation which is valid in law?
2. Whether the appellate Court was right in seeking to apply the provisions of the Transfer of Property Act, ignoring the admission of permissive occupation?"
5. Heard the learned counsel appearing for the appellant/plaintiff and the learned counsel appearing for the respondents/defendants.
6. A poring over and perusal of the typed set of papers, including the certified copies of the judgements and decrees of both the Courts below, would exemplify and display that the appellant/plaintiff filed the suit for recovery of possession on the ground that she is a life estate holder, as per Ex.A1-the probated 'Will' dated 11.8.1978 and both the Courts below erroneously dismissed the plaintiff's suit on the ground that there was no proper termination of tenancy as per
Section 106 of the Transfer of Property Act.
7. The learned counsel for the plaintiff would appropriately and appositely, correctly and convincingly put forth and set forth, highlight and spotlight the fact that
Section 106 of the Act could be ushered in only in cases where there existed landlord and tenant relationship and not in a case where there was no such relationship; here, the plaintiff and the defendants are close relatives; undoubtedly, the plaintiff is having the right to enjoy the suit property during here life time by leasing it out or by enjoying it in any manner as she likes and the defendants, being some of the vested reminders could claim right of occupancy as well as right to meddle with the property only after the death of the plaintiff-the life estate holder and in such a case, both the Courts were wrong in ushering in
Section 106 of the Act and failed to recognise Ex.A4-the notice dated 7.8.2004 sent by the plaintiff to the defendants, as the valid one, which called upon the defendants to vacate the suit premises. The learned counsel for the plaintiff also would submit that because the defendants happened to be the close relatives, the plaintiff permitted them to occupy the suit premises, but they proved themselves a scourge to her welfare as well as they were giving lot of mental agony to the plaintiff, which actuated and accentuated, propelled and impelled her to file the suit for eviction, as otherwise this litigation would not have emerged at all.
8. Whereas, the learned counsel for the defendants would submit that if the plaintiff, after evicting the defendants, leases out the property to any third party, after the death of the plaintiff it would be a very difficult task, so as to say a Herculean task to the vested remainders to evict them. Considering the pro et contra, in these circumstances, it is crystal clear that both the Courts below were perverse in their approach to the issue and accordingly, their findings and the ultimate conclusions should be set aside.
9. I would even go to the extent of pointing out that both the Courts below were unable to see the wood for tree and without categorical imperative to view the matter properly, they simply approached the problem perfunctorily without au fait with law and negatived the legitimate claim of the plaintiff. Hence, the judgements and decrees of both the Courts below are set aside and the original suit is decreed by allowing this second appeal and directing the defendants to vacate the suit premises within three months from the date of receipt of copy of this order.
10. Accordingly, second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.