This second appeal has been filed against the judgment and decree dated 19.01.2007 in A.S.No.12 of 2006 whereby the learned Subordinate Judge, Devakkottai confirmed the judgment and decree dated 11.04.2005 in O.S.No.245 of 2004 on the file of the Additional District Munsif Court, Karaikudi.
2. The respondents herein instituted O.S.No.245 of 2004 for delivery of possession of the suit property. According to the respondents, the building was leased out to the appellant as per lease agreement dated 01.05.2003. Since the appellant did not act as per the terms of lease and as they require the property for their bona fide need, they issued a notice to the appellant terminating the tenancy and since the appellant failed to comply with their request to surrender the property, they have laid the suit for delivery of possession.
3. The appellant resisted the suit on the ground that her husband alone is the tenant in respect of the property and there is no surrender of lease made by her husband in favour of the respondents and as such, the lease agreement dated 01.05.2003 cannot be acted upon. In short, the main contention appears to be that it is only the husband of the appellant who is in possession of the property as a tenant and as such, there is nothing to be recovered from the appellant.
4. The learned trial Judge framed issues and answered the same in favour of the respondents by holding that there is a subsisting tenancy agreement between the parties and rejected the contention of the appellant that it is only her husband who is in possession of the property and accordingly, decreed the suit as prayed for. The first appellate Court confirmed the said finding and dismissed the appeal and aggrieved by the same, the present second appeal has been preferred by the appellant.
5. When the appeal was taken up for admission, this Court ordered notice of motion and accordingly, the respondents entered appearance through counsel and as such, the second appeal is disposed of during the admission stage itself on consent of the learned counsel appearing on either side.
6. The following substantial questions of law arise in the present second appeal:
"(i) Whether the Courts below are justified in not holding that Ex.A.5-lease agreement, which requires registration, cannot be referred to for proving the terms of the document in view of
Section 49 of the Registration Act? and
(ii) Whether the Courts below are justified in finding that the appellant is the tenant of the suit premises when Ex.A.5 lease deed is not properly stamped and when the question who is the tenant is an essential term of the agreement of lease and not a collateral issue?"
7. In the above factual back ground and with reference to the substantial questions of law framed and referred above, I have heard Mr.R.Sundar Srinivasan, learned counsel appearing for the appellant and Mr.V.R.Shanmughanathan, learned counsel appearing for the respondents.
8. The learned counsel for the appellant contended that the husband of the appellant is in possession of the subject property from 1993 onwards, where he is conducting stationery business in the name and style of "VASUMATHI STORES". The learned counsel also referred to Exs.B.5, B.7 and B.11 to show that the husband of the appellant is doing business at the premises sought to be evicted. It is the further case of the learned counsel that the respondents earlier issued a notice to the husband of the appellant as per Ex.B.1 dated 17.02.1993, wherein there is an indication of a lease in favour of her husband. According to the learned counsel, Ex.A.5 was executed at the instance of the respondents, when her husband was away and so long as the property is in the possession and enjoyment of her husband and as there is no surrender of property, no credence could be attached to Ex.A.5 which is an unregistered document and as such, prayed for setting aside the judgment and decree of the trial Court as well as the first appellate Court.
9. The learned counsel for the respondents supported the findings of the Courts below and contended that nothing is there to be decided as a substantial question of law in the second appeal and as such, prayed for confirming the judgment and decree of the Courts below.
10. I have considered the contention of the learned counsel appearing on either side and also considered the pleadings and the evidence adduced by the parties and the findings of the trial Court as well as the first appellate Court.
11. It is true that Ex.B.1 dated 17.02.1993 refers to a lease granted by the respondents in favour of the husband of the appellant. But, admittedly there is no lease agreement between the parties. Ultimately a fresh lease agreement was executed in the name of the appellant in respect of the very same premises and as such, in view of the subsequent lease in favour of the appellant and absence of any document to show the possession of appellant's husband subsequent to Ex.A.5, it cannot be said that the husband of the appellant continue to be a tenant even after execution of Ex.A.5.
12. It is also on record as per Ex.B.5 dated 20.02.1992 that the husband of the appellant is doing business in the subject premises. Though the learned counsel for the appellant relies on Exs.B.7 and B.11 to show that her husband continue to keep the premises, those documents cannot be relied on to show the possession of the appellant's husband, inasmuch as in Ex.B.7, the door number is different and there is no evidence adduced to show the correlation between the door numbers as found in Exs.B.5 and B.7. Ex.B.11 is only an assessment order where there is no reference to the door number of the premises. Admittedly there is no lease agreement between the husband of the appellant and the respondents in respect of the property. The only evidence available on record are Exs.B.1 and B.5, all of which are prior to the execution of lease agreement between the appellant and the respondents.
13. The respondents have relied on Ex.A.5 dated 01.05.2003 in support of their case that there is a subsisting lease agreement between the parties and as such, it is their case that the appellant being a tenant is bound to pay the rent and in case of termination of lease, she is liable to surrender the property.
14. The sheet anchor of the case of the appellant relates to the inadmissibility of the document in Ex.A.5, as according to her, the document being an unregistered lease agreement is inadmissible in evidence and as such, the Courts below erred in relying on the said document to come to a finding that there is a valid tenancy. Therefore, the only question requires consideration is as to whether Ex.A.5 could be relied on to show the lease in favour of the appellant.
15. In Bondar Singh v. Nihal Singh reported in 2003(4) SCC 161, the Apex Court considered the legal effect of an unregistered and unstamped document when a party to a lease relies on such a document and held thus:
"The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized."
16. In the present case, the appellant has not denied the execution of Ex.A.5. On the other hand, the learned counsel for the appellant would submit that the appellant has executed Ex.A.5 when her husband was away from town. This fact would prove that the appellant admits the execution, but gives explanation, though belatedly for execution of such a lease agreement. Hence the said document can be relied on for the collateral purpose of deciding the possession of the appellant as a tenant.
17. The document in Ex.A.5 assumes significance also for the reason that the lessee as per the said document is none other than the wife of the party, who is stated to be in possession of the premises as found in Ex.B.1. But during the currency of such a lease agreement, if execution of a document like Ex.A.5 is admitted, it is only for the appellant to explain the circumstances leading to the factum of such execution and having failed to establish such factors before the Court of facts, it is too late for the appellant to contend for the position that Ex.A.5 is only a sham document not intended to be acted upon.
18. Admittedly, Ex.A.5 was executed by the appellant knowing fully well the contents of the said document. If really Ex.A.5 was got executed by the respondents, when the husband of the appellant was away, nothing prevented the appellant or her husband from taking action either to cancel the said lease agreement or at least to issue a notice to the respondents calling upon their attention to the circumstances under which the appellant was made to execute Ex.A.5. No evidence is produced to show the initiation of any such action at the instance of either the appellant or her husband.
19. Similarly, there is no acceptable evidence to show that the tenancy in the name of the husband of the appellant continued even after execution of Ex.A.5. Of course, the learned counsel for the appellant relied on Exs.B.14 and B.15 dated 07.03.2005 and 15.07.2004 respectively and contended that the appellant's husband paid rent to the respondents even in 2005. However, on perusal of Exs.B.14 and B.15 shows that the rent was deposited in the account of the respondents in ICICI Bank, wherein the name of the remitter is shown as the appellant's husband. The mere fact that the rent was remitted in the bank account of the landlord by the husband of the appellant cannot be taken as a material evidencing continuation of landlord-tenant relationship between the parties.
20. It is trite law that in a second appeal under Section 100 of the Code of Civil Procedure, the scope of interference by the High Court is very limited. In such second appeals, the appellate Court is not justified in interfering with the findings of fact arrived at by the Courts below, especially when there is a concurrent finding and unless and until it is held that such concurrent findings are vitiated on account of non-consideration of materials in their proper perspective or the findings are perverse, interference by the appellate Court is not justifiable.
21. The Courts below, on the basis of evidence on record, arrived at a conclusion that the appellant is a tenant and as such, it is not possible for this Court to investigate the grounds on which the finding of fact was arrived at by the final Court of fact. In a given case, from a given set of facts and circumstances, two inferences are possible on facts, one drawn by the lower appellate Court will not be disturbed in second appeal by High Court exercising jurisdiction under Section 100 of the Code of Civil Procedure. Such being the legal position, the findings of the lower Court as confirmed by the first appellate Court on the basis of the available evidence cannot be disturbed in the present appeal.
22. Therefore, I do not find any reason to interfere with the concurrent finding of the Courts below and as a result, the Second Appeal is dismissed. However, in the facts and circumstances, there will be no order as to costs.
SML To
1.The Sub Court, Devakkottai.
2.The Additional District Munsif, Karaikudi.