Judgment:
ORDER
1. The defendant are the appellants. The case of the respondents is as follows:
He is a tenant of the land in old No. 77, New No. 128, Gangadeshwar Koil Street, Chennai - 4, which belongs to the Devasthanam. Four shops were constructed by one Vadivelu Mudaliar, who sold those shops to the respondent's father K.P. Radhakrishnan alongwith the leasehold right. Therefore, the respondent's father became a direct tenant under the Devasthanam and he was carrying on the business of Astrology. After his death the respondent became entitled to the shops since his mother had given up her rights in favour of the respondent. The shop in dispute is the second shop where the respondent is carrying on business under the name and style of Malayala Jothida Nilayam. The respondent had earlier filed O.S.No.67 of 1990 for possession. The respondent claimed the right to purchase the land under Section 9 under the Tamil Nadu City Tenants Protection Act. The suit is still pending. After the death of his father, the respondent's maternal grandfather M.K. Pillai,who is the appellant's father (M.K.P. in short) was carrying on the business as Astrologer in Shop No.2. After the death of the grandfather and after the respondent came of age he has been carrying on his profession as an Astrologer under the name and style of Malayala Jothida Nilayam. The appellants are the maternal uncles of the respondent and they are also astrologers by profession. They would visit Shop No.2 and would help the plaintiff in his profession. But recently, because of some ill-feelings they have been acting in a wholly illegal and highhanded manner and in the first week of January, 1991, the appellants have threatened to prevent the respondent from entering his shop which they have no right to do and therefore, the suit has been filed. In the written statement the plaint averments are denied and it is their case that they joined M.K.P., in the astrology business ever since 1960 as sub-tenants of the respondent's mother Dhana Lakshmi. M.K.P. died in 1979 and they continued the astrology business in the suit property as sub-tenants paying rent regularly. According to the written statement the respondent, is not in absolute possession of the suit property but only the appellants and they are paying the rent to the respondent's mother. They denied that they threatened the respondent or physically prevented him from entering into the suit property and according to the written statement the police forced the appellants to give accommodation to the respondent in the suit property for particular hours. According to them, the suit must be dismissed. The Trial Court decreed the suit and the Appellate Court confirmed it. Aggrieved thereby the present second appeal has been filed. The substantial question of law framed that arises in the second appeal is whether the suit for permanent injunction can be maintained when the plaintiff has admitted the defendant's possession of the suit property and whether a decree for injunction may be granted when no finding is given that, the defendants are not in possession and if the materials show that the defendants are atleast in possession alongwith the plaintiffs.
2. Mr. Sadasharam, learned counsel for the appellant submitted that the respondent has not categorically stated as to when the respondent acquired absolute possession of the suit property since admittedly the appellants' father who is the respondent's grandfather was in joint possession of the suit property alongwith the respondent. He also submitted that even as per the evidence the M.K.P. was in possession of the property after the death of the respondent's father and continued in possession till he died in 1979, and unless, the respondent satisfies the Court that after the death of M.K.P., he took control of the entire suit property, the presumption would only be that thereafter both the plaintiffs and the defendant were in joint possession. He submitted that even if his case of sub-tenancy is not accepted and he is found to be only a trespasser he cannot be ejected by force. For this he relied on a decision of the Kerala High Court reported in Karthiyayani Amma v. Govindan, . In that decision, the following extract from M.K. Setty v. M.V.L. Rao, :
'The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first Appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not approved to have a better title than himself of the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if ' he had failed to prove his title satisfactorily.'
3. In that case, the Supreme Court held that the plaintiffs possession has to be protected even if he had failed to prove it satisfactorily. The ultimate position was reduced to this that a person in possession can be evicted only by due process of law and even the rightful owner cannot eject the trespasser by force. In this case both the Courts below have concurrently held in favour of the respondent as regards his title though the suit is only one for permanent injunction.
4. Mr. A. Venkatesan, learned counsel for the respondent would submitted that it was only after the dispute that the appellants came into possession that too because of the mediation by the police and he would vehemently argue that the appellants having projected a case of sublease right through the Trial Court and the Appellate Court cannot now abandon it and take up a new plea questioning the right of the respondent to claim injunction. He submitted that here was a concurrent finding of fact not liable to be interfered with.
5. The relief sought for in the plaint is as follows:
'restraining the defendants by a permanent injunction from the peaceful possession and enjoyment of the shop Purasawalkam, Madras 600 084 morefully described in the schedule hereunder;'
6. The appellants no doubt have claimed that they are sub-tenants. Both the Courts have held against them. But the basis of the plaintiffs claim is that he is in exclusive possession of the suit property and the defendants are interfering with his possession. He is bound to prove this before getting a decree. The respondent's father died in December, 1961. It is evident that after his father's death his mother became entitled to all the shops and in particular he says,
Therefore, it is his case that when his father died it was only his grandfather who was carrying on the business of Astrology in the shop. It is not clear in what capacity M.K.P. who is the grandfather of the respondent and father of the appellants was occupying the suit shops. It is the case of the respondents that he was a sub-tenant and after that they became tenants. This has been disbelieved. Therefore, M.K.P. could have occupied the property in his own right or he might have been permitted to occupy the suit shop. There is no pleading regarding this. The grandfather was obviously a well-known astrologer and the respondent states that this person who had been carrying on the astrology business from 1961-1979 on his own right was assisting him, the grand son in the shop till his death. This is a little difficult to believe since an experienced elderly man is not likely to be this young amateur's assistant. When the grandfather died he was only 16 years. In the plaint it is stated as follows:
'The plaintiff submits that in the second shop from Sri Gangadeeswarar Koil lane immediately adjacent to the first shop, Dhanalakshmi Tea Stall, the plaintiffs father P.R. Radhakrishnan was carrying on his profession as an astrologer. After his 'death, the -plaintiffs maternal grandfather M.K. P. was carrying on his profession as an asirologer after his death, and after the plaintiff has came of his age he has been carrying on the profession under the name and style 'Malayala Jothida Nilayam'.'
7. The appellants are the maternal uncle of the respondent and they are also astrologers by profession and according to the plaintiff/they helped the respondent in his profession. After this, the plaint goes on saying that due to ill feelings between the respondents and the mother on the one hand and the appellants on the other, the relationship between the two became sour. From the pleadings it is apparent that the respondent started carrying on the profession only after he came of age. It must be remembered that it is his own-evidence that he was only 16, when his grandfather died. There is no dispute that this Malayala Jothida Nilayam has been functioning throughout without any break. Therefore, if the uncles viz., the appellants were helping the respondent to carry on the business of astrology and they must have been permitted to do so between the time when M.K.P. died and the date on which the respondent attained majority. They were obviously carrying on business in the suit property and were in possession, which cannot be termed unlawful. Even assuming that the petitioner had granted them permission to be in possession of the suit property, it is not -clear when this permission was revoked. I do not think this is a question where the negation of the claim made by the appellants will result in the respondent's entitlement to suit claim. The respondent as the plaintiff will still have to prove that he was in exclusive possession on the date of suit and the appellants herein were not. While the respondent's entitlement to the suit property is not questioned, I am of the opinion that the Court below had decreed the suit merely on the basis of the failure on the part of the appellants to prove their case of sub-tenancy. The Courts below ought to have seen that it is the respondent who has to prove that he is in exclusive possession of the suit property on the date of the suit. I am afraid the lacuna in the plaintiffs case stares in the face. He has not pleaded clearly as to when after the death of his grandfather and before he came of age he took possession of the suit property. If it is his case that until he came of age his mother has been in control then that ought to have been stated clearly. There is no material to show when he resumed possession, it is the respondent's own case that from 1961 his maternal grandfather was running the shop; there is absolutely no pleading to show that M.K.P. was carrying on the business by permission except for a stray sentence in the evidence that he would help him. It is the respondent's evidence that there is nothing in writing to show that the defendants have to surrender possession upon his coming of age. This clinches the issue. The wrong appreciation of the oral evidence by the Court below and the conclusion arrived at by the Courts below that if sub-tenancy is not proved, the suit should be decreed, has resulted in error. Since the material on record do not show when the possession of the suit property was resumed by the respondent and when in fact, the materials show that atleast parties were in joint possession of the suit property, the suit ought not to have been decreed. The substantial questions of law are answered in favour of the appellant. The second appeal is therefore, allowed. No costs. Consequently, C.M.P.No.15751 of 2000 is also closed.