AR. Lakshmanan, J.
1. The defendant in O.S. No. 579 of 1984 on the file of the First Additional Subordinate Judge, Pondicherry is the appellant in this, appeal.
2. The suit was initially filed by one P. Nirmala as an indigent person in O.P. No. 46 of 1983. The said P. Nirmala is the wife of the 1st respondent and mother of respondents 2 to 5. Leave was granted to her to sue as an indigent person. P. Nirmala died before the suit was taken on file. Hence, her legal representatives viz., her husband and four children, who are the respondents herein, were brought on record in O.P. No. 46 of 1983 itself. The respondents herein also sought for permission to sue as indigent persons. Leave was granted to them also to sue as indigent persons. Thereupon, O.P. No. 46 of 1983 was converted as O.S. No. 579 of 1984.
3. The suit was prosecuted by the plaintiffs on the following pleadings. The deceased plaintiff Nirmala wanted to start a bus body building industry under the name and style of M/s. Cholan Industries by availing financial assistance by way of loan to an extent of Rs. 2.88 lakhs from the Pondicherry Industrial Promotion Development and Investment Corporation (hereinafter referred to as PIPDIC). In this regard, the deceased plaintiff P. Nirmala's husband viz., the 1st respondent herein, who happened to be a good friend of the defendant/appellant, approached the latter for a lease of his land to start the industry. The defendant, with a view to help his friend, agreed to give on lease a small piece of his land on a low rent of Rs. 1,000 per annum, that too for a period of ten years without any increase of rent. In furtherance of the same, Ex. A-1 lease deed dated 27.8.1981 was executed by the defendant in favour of the deceased plaintiff in respect of the following lands:
(i) Cadastre No. 148/7/8/1, 148/7/8/2, 148/5/8/2 pt = R.S. No. 120/2 = 75 Kuzhies.
(ii) Cadastre No. 147,147bis(part) = R.S. No.l20/9 = 50 Kozhies.
Both items put together, 1 Kani, 25 Kuzhies and O Vizam, out of which one Kani only on the southern side, the boundaries are:
West of Sankaralingam's land,
South of Kannan and four others land,
North of Villupuram Road,
East of Jainabi's land,
Since the above lease deed was to be in force for ten years, the said deed was also duly registered.
4. The deceased plaintiff applied for a loan from PIPDIC on the strength of Ex. A-1, Ex. A-6 letter of no objection dated 9.9.1981 said to have been given by the defendant to PIPDIC, and the mortgage deed Ex. A-21 dated 5.7.1982 executed by the deceased plaintiff Nirmala in favour of PIPDIC. Even though the defendant had only leased out the lands aforementioned for a period often years on an annual rent of Rs. 1,000 the deceased plaintiff had executed Ex. A-21 dated 5.7.1982 in favour of PIPDIC mortgaging not the leasehold interest but the entire land itself, as security for the repayment of the loan of Rs. 2.88 lakhs to be advanced by PIPDIC to the deceased plaintiff, as evidenced by Ex. A-7 dated 5.6.1982.
5. The deceased plaintiff, in the meantime,started putting up construction for the purpose of her proposed industry. She had constructed about ten pillars and partition walls for a room, as seen from the evidence of P.Ws. 2 and 3. The defendant was away from Pondicherry at the time of construction. When he returned to his village, he realised that the construction was put up not on the leasehold land but on the neighbouring other land also owned by the defendant. Hence, the defendant objected to the construction and asked the deceased plaintiff to stop further construction. He also sent Ex. A-8 letter dated 22.10.1982 through his advocate to PIPDIC informing them that the deceased plaintiff had put up construction not on the leasehold land but on the other lands of the defendant. In that letter the defendant further requested the PIPDIC to defer granting of licence to the deceased plaintiff pending adjudication of the dispute. The PIPDIC wrote Ex. A-10 letter dated 9.11.1982 to the deceased plaintiff informing her that the loan sanctioned would not be released unless and until the dispute between her and the defendant is resolved.
6. Thereafter, the deceased plaintiff filed O.S. No. 212 of 1983 (subsequently renumbered as O.S. No. 1890 of 1986) on the file of the Principal District Munsif, Pondicherry, for a permanent injunction restraining the defendant, his men, etc., from interfering with her peaceful possession and enjoyment of the suit property. It would be relevant to notice that the suit properties in O.S. No. 212 of 1983 were the same properties mentioned in the lease deed Ex. A-1. Subsequently, the plaint in that suit was returned for presentation before proper court since the court did not have pecuniary jurisdiction. Even by that time, the legal representatives of the deceased plaintiff viz., the respondents herein who are the husband and children, were brought on record. That suit was not pursued further by them.
7. The deceased plaintiff instead of resolving the dispute regarding the identity of the property on which she had put up the construction viz., whether the construction was put up in the property leased out under Ex. A-1 or outside the said property, by getting the lands measured by the Revenue and Land Settlement officials, had filed the present suit (O.S. No. 579 of 1984) for the following reliefs:
(a) To permit the plaintiffs to sue as indigent persons.
(b) To declare that the plaintiffs are entitled to claim damages against the defendant at the rate of Rs. 10,000 per month till he recognises their leasehold right over the suit property and also withdraw all his objections made by him in person as well as through his advocate notice to the PIPDIC authorities.
(c) To direct the defendant to pay a sum of Rs. 60,000 as damages for the period from 1.1.1983 to 30.6.1983.
(d) To direct the defendant to pay the costs of the suit and such other orders as may be deemed fit.
8. The prayer in the suit pre-supposes that the deceased plaintiff had put up construction only on the leasehold land and the defendant had committed breach of contract of lease by illegally and unjustly interfering with their right to enjoy the leasehold properties. As a consequence, the plaintiffs had suffered loss of profit which they would have earned from the industry had it been allowed to run. The damages were claimed by the plaintiffs on the ground that the PIPDIC authorities in their project report had expected the industry to commence operation from 1.1.1983 and that the industry would earn a profit of Rs. 12,000 per month. The plaintiffs further pleaded that if only the defendant had not interfered with their leasehold rights, the PIPDIC would have released the loan sanctioned by them and the plaintiffs would have completed the construction and established the industry, which would have commenced operation from 1.1.1983 and by this, they would have earned a profit of Rs. 10,000 per month. This is the basis or the foundation for claiming damage at the rate of Rs. 10,000 per month by the plaintiffs.
9. The defendant resisted the suit contending inter alia that the deceased plaintiff had constructed not on the leasehold land, but on other lands belonging to him. Hence, he was constrained to object to the further construction in his other lands. Therefore, it was only the plaintiffs who were responsible for their wrong acts and that the defendant was not guilty of breach of contract. The defendant further contended that the damages as claimed was not at all maintainable and that the defendant put the plaintiffs to strict proof of their claim.
10. On the above pleadings, the trial court framed the following issues for trial:
1. Whether the suit as framed is not maintainable?
2. Whether the impleaded parties cannot be permitted to sue as pauper on the basis of the order given to the deceased plaintiff?
3. Whether the defendant actually leased out only 50 Kuzhies in Cad. 129/1 and Cad. 129/2 at Thiruvandarkoil?
4. Whether the plaintiff paid Rs. 10,000 as a debt and entered into an agreement for sale with the defendant on 19.2.1982?
5. Whether the defendant executed the deed of rectification on 25.3.1983?
6. Whether the plaintiff suffered damages from any act of the defendant and if so, what is the quantum?
7. To what relief is the plaintiff entitled?
11. On the side of the plaintiffs, P.Ws. 1 to 5 have been examined and Exs. A-1 to A-22 have been marked. On the side of the defendant, the defendant examined himself as D.W. 1 and marked Exs. B-1 to B-6. The trial court decreed the suit as prayed for against which the defendant has preferred the present appeal.
12. Elaborate arguments were advanced by Mr. G. Masilamani, learned Senior Counsel, on behalf of the appellant/defendant and by Mr. K. Yamunan, learned Counsel for the respondents/plaintiffs.
13. Mr. G. Masilamani, learned Senior Counsel would urge that the trial court has decreed the suit without strictly adverting to the two main issues that arose for consideration, viz.,
(a) Whether the plaintiffs had proved that the deceased plaintiff had put up construction in the leasehold land and the same was objected to by the defendant unjustly and illegally?
(b) Whether the plaintiffs had proved with acceptable material pleadings and evidence the quantum of damages claimed by them?
14. Insofar as the first issue viz., whether the plaintiffs had proved that the deceased plaintiff had put up construction in the leasehold land and the same was objected to by the defendant unjustly and illegally is concerned, the same is to be examined before rendering a finding that the defendant was guilty of breach of contract and consequently, he was liable to pay damages as contemplated under Section 73 of the Indian Contract Act. Mr. G. Masilamani, learned Senior Counsel, invited our attention to the recitals in the lease deed Ex. A-1, dated 27.8.1981 whereunder only two items of properties were leased out. Those items are extracted in paragraph 3 supra. Whereas in the plaint schedule, apart from the two items of properties mentioned in Ex. A-1 lease deed, one other item was also found mentioned. The new item mentioned is as follows:
(i) Cad. No. 145 = R.S. No. 120/10 = Kani O, Kuzhi 33, Vizam 10.
(ii) Cad. No. 146 = R.S. No. 120/11 = Kani O, Kuzhi 13, Vizam 1.
15. Even though two new survey numbers measuring 46 Kuzhi and 11 Vizams are included in the plaint schedule in addition to two other items corresponding to the properties mentioned in Ex. A-1 lease deed, the same boundary description mentioned in Ex. A-1 was repeated in the plaint schedule. Obviously the boundary descriptions cannot be correct. The boundary description relating to Ex. A-1 properties with different Survey Numbers to an extent of 1 Kani and 25 Kuzhies cannot be the same even after addition of two more Survey Numbers covering an additional extent of 46 Kuzhies and 11 Vizams. It is beyond one's comprehension as to how could a boundary description for 1 Kani and 25 Kuzhies be the same for 1 Kani, 71 Kuzhies and 11 Vizams as claimed in the plaint.
16. The addition of Item No. 2 in the plaint schedule was sought to be justified through Ex. A-16 dated 25.3.1982 captioned as 'continued lease deed', whereas under the said document, no lease sought to be continued. As a matter of fact, Ex. A-1 lease deed was for a period of ten years from 27.8.19 81. Therefore, as rightly pointed out by Mr. G. Masilamani, as on 25.3.1982 viz., Ex. A-16, there was no need for any extension of the lease deed Ex. A-1. Further, a reading of the recitals in Ex. A-16 reveals that the same was not one for extension of lease but purport to add Item No. 2 of the plaint schedule in Ex. A-1 lease deed. Therefore, it is contended that Ex. A-16 was in effect seek to create leasehold right in respect of item No. 2 of the plaint schedule also owned by the defendant i n favour of the deceased plaintiff for a period of ten years. As already seen, this document was captioned as 'continued lease deed' and sought to be referred to by the deceased plaintiff as a rectification deed to Ex. A-1 lease deed. According to Mr. G. Masilamani, neither of these claims were correct. In reality, it creates a transfer of right in immovable properties which were not covered by Ex. A-1, by way of lease, that too for a period of ten years, strangely for the same rent of Rs. 1,000 per year mentioned in Ex. A-1, de hors the addition 46 Kuzhies and 11 Vizams to the already existing leasehold extent of 1 Kani.
17. We have closely scrutinised Ex. A-1, which reveals that the said document is an unregistered one and that the defendant denies the execution of the same. Ex. A-16 is typed on a non-judicial stamp paper of Rs. 5 only. The said stamp paper was purchased in the name of one G. Dhanam of Poraiyur, who is not connected with the parties to the document. No explanation was given as to why the stamp paper was purchased in the name of a person who was either fictitious or unconnected to the document. Even though this document is dated 25.3.1982 and a very important document connected with the suit schedule property, the same was not produced along with the plaint dated 4.7.1983 even though the lease deed Ex. A-1 dated 27.8.1981 was produced as the first document. Further, Mr. G. Masilamani would contend that Ex. A-16 is not admissible in evidence since the same was neither properly stamped nor registered even though the same was compulsorily liable to be registered since it purports to create transfer of right in an immovable property on an annual rent of Rs. 1,000 that too, for a period often years. As already stated, the plaintiffs described this document as a rectification deed to the lease deed Ex. A-1. Even assuming it to be so, Ex. A-1 being registered, a deed of rectification thereof also should be a registered instrument. We find much force in the argument of Mr. G. Masilamani in this aspect. Hence, we are of the view, that this document is inadmissible in evidence and cannot be relied upon for more than one reason.
18. The plaintiffs had not taken any tangible steps to prove satisfactorily that the deceased plaintiff had put up construction in the leasehold land. The only document marked by the plaintiffs and which was some what germane to resolve this dispute was Ex. A22 dated 3.7.1987, which is a certified copy of the Commissioner's report filed in the plaintiff s former injunction suit O.S. No. 212 of 1983 on the file of the Principal District Munsif, Pondicherry. As per this report, the suit schedule in O.S. No. 212 of 1983 contained only two items mentioned in the lease deed Ex. A-1. Further, the Commissioner's report states that the deceased plaintiffs construction was found in R.S. No. 120/10, which was not the subject matter of Ex. A-1 lease deed. The Commissioner also found that the construction was within the suit boundary description, which relates to R.S. No. 120/10. The plaintiffs having come to know that their construction was in R.S. No. 120/10 and not in the survey numbers covered in the lease deed Ex. A-1, desired to bring R.S. No. 120/10 also within Ex. A-1 lease deed. To give effect to this illegal desire, the plaintiffs, brought about Ex. A-16, the alleged continued lease deed/rectification deed providing for the inclusion of R.S. Nos. l20/10 and 120/11 in Ex. A-1.It appears to us that R.S. No. 120/11 was also included perhaps as an abundant caution. Finding that the defendant was not obliged to them in this regard, they were rest content with Ex. A-16 as an anti-dated and unregistered document, typed on an old stamp paper which stood in the name of some third party. The origin of the document ought to have been much later than its purported date of execution since not even a xerox copy of the said document was filed along with the plaint in this suit.
19. Yet another document which should also be considered at this stage is Ex. A-6, no objection certificate, said to have been given by the defendant to PIPDIC. A xerox copy of this document was marked through P.W. 1 subject to objection. In this, neither in the subject portion nor in the body of the letter, the survey numbers in respect of which the lease relates to, were mentioned. However, in the Court records, the original of Ex. A-6 is also found. In the subject portion of the original document, the survey numbers mentioned in Ex. A-1 lease deed have been subsequently added by erasing and typing the same. We have perused Ex. A-6. We are able to see material interpolations in it. In addition to the same, two more alleged initials of the defendant are affixed in the body of Ex. A-16 viz., in pages 1 and 2, which were not found in the marked xerox copy. However, curiously, the abovesaid interpolations of survey number were not initialled. No explanation whatever was forth coming from the plaintiffs in this regard. No other document, among the documents produced on the side of the plaintiffs, was relevant and germane to decide the point whether the deceased plaintiff s constructions were on the leasehold property or outside. These surrounding facts gathered from the plaintiff s documentary evidence clearly establish beyond doubt that the deceased plaintiff had put up construction on a land which was not leased out to her. Therefore, the defendant cannot be found fault with or could be held guilty of breach of contract.
20. Let us now consider the oral evidence on record on the side of the plaintiffs. In all, the plaintiffs have examined five witnesses on their side. P.W. 1 was the 1st plaintiff. He has stated during his chief-examination that the deceased plaintiff started construction three months after the lease and at the time of laying foundation, the defendant was present in the suit property and he only commenced the ceremony. It would be relevant to note that in the plaint there was no reference at all about the presence of the defendant and about he himself commencing the ceremony. In paragraph VIII of the plaint, the plaintiffs had stated that 'after getting approval from the abovesaid authorities, the deceased had started the construction work.' The plaint was filed after all the disputes had arisen. Therefore, if the defendant was, in fact, present and he had commenced the foundation laying ceremony, the plaintiffs would not have failed to mention this very material and relevant fact in the plaint, since such a conduct on the part of the defendant would constitute acquiescence, waiver and estoppel. Therefore, in our view, the evidence of P.W. 1 do not clearly establish that the construction was put up in the leasehold land.
21. P.Ws. 2 and 3 were admittedly very close relatives of the defendant. However, they had come to depose against the defendant and in favour of the plaintiffs. Their evidence also do not prove that the construction was put up in the leasehold land; P.Ws. 2 and 3 do not have personal knowledge about the details contained in Exs. A-1, A-6 and A-16. They only indirectly attempted to establish this fact by saying that the defendant was present at the time of foundation laying ceremony. P.W. 2 claims that he and P.W. 3 among others were present at the time of foundation laying ceremony. These facts were also not mentioned in the plaint. Further, P.W. 1 had not stated neither in the plaint nor even in his evidence about the presence of P. Ws.2 and 3 and others at the time of foundation laying ceremony. P.W. 2 had gone a step further in saying that for the construction purposes, water was taken from the defendant's motor shed. This was not the case of the 1st plaintiff either in the plaint or in his evidence. During the cross-examination, P.W. 2 had admitted that he had no personal knowledge about the contents of the relevant documents relating to the lease. Motive of enmity against the defendant was suggested to him. However, he denied the same. His evidence does not inspire confidence and acceptance.
22. Similarly, the evidence of P.W. 3 also contains materials which are not pleaded and which were not corroborated by P.W. 1. At one stage, this witness admits that he does not know the details of the deed. Subsequently, he states that he has read it and found one Kani of land was given on lease. Simultaneously, he says that he did not notice who were the persons who signed as witnesses. He also admits that he has no knowledge about the survey numbers of the surrounding lands. These facts, coupled with the suggestion that he was doing business along with the 1st plaintiff as a partner, cast serious doubt about the veracity of his evidence. Further, the evidence of these witnesses is not helpful to come to the definite conclusion that the construction was put up by the plaintiffs in the leasehold property.
23. P.W. 4 was the Manager of PIPDIC, who produced certain original documents such as Exs. A-1, A-4, A-6, A-8, A-9, A-17 and A-21. In addition to that, he refers to Ex A-10 and calls it as a deed of renewing the tenancy continuously. Ex. A-10 is a letter dated 9.11.1982 written by PIPDIC to M/s. Cholan Industries. Therefore, the description of the document viz., the deed of renewing the tenancy continuously, could only be Ex. A-16. Apart from producing these documents, he has not given any evidence in support of the plaintiffs' case either in regard to the place of construction or in regard to the damages claimed by the plaintiffs. Therefore, the evidence of P.W. 4 is also not very useful.
24. P.W. 5 is the Advocate Commissioner who inspected the suit property and submitted Ex. A-22 report and plan in O.S. No. 212 of 1983. He also does not speak anything about the controversy on hand in this suit. Therefore, in the light of the aforesaid oral and documentary evidence, it is clear to us that the plaintiffs had not proved clearly that they had put up construction only in the leasehold property.
25. Mr. K. Yamunan, learned Counsel for the respondents, attempted to establish that the construction was within the boundary description contained in Ex. A-1 lease deed, as found by the Advocate Commissioner in Ex. A-22, even though the boundary description relates to R.S. No. 120/10 which was sought to be included in Ex. A-1 lease deed dated 27.8.1981 through Ex. A-16, alleged rectification deed dated 25.3.1982. He placed reliance on the well established general principles of law that the boundary descriptions shall prevail over survey number, extent, etc., when there is conflict. In this regard, he placed reliance on the decisions reported in The Palestine KupatAm Bank Co-operative Society Limited v. Government of Palestine A.I.R. 1948 P.C. 207 : 62 L.W. 21, Sheodhyan Singh v. Sanichara Kuer : [1962]2SCR753 and Kamakshi Ammal v. R. Ranganaihan 82 L.W. 142. There can be no quarrel over this proposition of law. However, the same cannot be applied to the facts and circumstances of this case. Ex. A-1 lease deed, as mentioned earlier, contains only two items of properties in R.S. Nos. 120/2 and 120/9, having an extent of 1 Kani and 25 Kuzhies. For this Survey Number and extent, a boundary description was given. Out of this, only one Kani on the southern side was leased out. Subsequently, under Ex. A-16, the alleged rectification deed, two more survey numbers viz., R.S. No. 120/10-33 Kuzhies and 10 Vizamsand R.S. No. 120/11-13 Kuzhies and 1 Vizam, were added to the extent mentioned in the lease deed aforementioned. Even after the addition of two more survey numbers and another total extent of 46 Kuzhies and 11 Vizams, the same boundary description is given. If really what was sought to be done under Ex. A-16 was to rectify the mistake, viz., to incorporate in Ex. A-1 the lands which were comprised within the boundary description in Ex. A-1 viz., R.S. No. 120/10 : 33 Kuzhies and 10 Vizams and R.S. No. 120/11 = 13 Kuzhies and 1 Vizani, totalling 46 Kuzhies and 11 Vizams, then, the two other survey numbers in R.S. No. 120/2 = 75 Kuzhies and R.S. No. 120/9 = 50 Kuzhies totalling 1 Kani and 25 Kuzhies, ought to have been deleted under Ex. A-16. Failure to delete as aforesaid result in the boundary description which encompassed 1 Kani and 25 Kuzhies after the rectification deed encompass 1 Kani 71 Kuzhies and 11 Vizams. Further, as per Ex. A-22, Commissioner's report, the boundary description relates to R.S. No. 120/10 wherein the construction was found. R.S. No. 120/10 consists of only 33 Kuzhies and 10 Vizams. Perhaps, only placing reliance on the Commissioner's report, R.S. No. 120/10 was sought to be included under Ex. A-16, the alleged rectification deed. Ex. A-16 was created by using an old stamp paper issued in the name of some third party by anti-dating the document, that too, a xerox copy was produced before court by P.W. 4. The original has not seen the light of the day and no explanation was given for the same. If really, as per Ex. A-22, the Commissioner's report, the boundary descriptions contained in Exs. A-1 and A-16 relate to R.S. No. 120/10 only, how then in Ex. A-16 the plaintiffs could claim that within the same boundary not only R.S. No. 120/10 but also R.S. No. 120/11, in addition to the survey numbers mentioned in the lease deed Ex. A-1 viz., R.S. Nos. 120/2 and 120/9, are also comprised. Ex. A-1 mentions that the leasehold right was created specifically in respect of only one Kani out of one Kani and 25 Kuzhies, that too, on the southern side. If that is so, R.S. No. 120/10 having an extent of 33 Kuzhies and 11 Vizams only cannot come within the boundary description.
26. The contention of Mr. K. Yamunan on behalf of the plaintiffs is not only mutually inconsistent but also destructive. At one stage, the plaintiffs rely on the Commissioner's report Ex. A-22 and contended that the boundary description mentioned in Exs.A-1 and A-16 relates to R.S. No. 120/10 having an extent of 33 Kuzhies and 10 Vizams only wherein the construction was found. Simultaneously, the plaintiffs placed reliance on Ex. A-1 and contended that one Kani and 25 Kuzhies comprised in R.S. Nos. 120/2 and 120/9 are also covered by the same boundary description. Similarly, the plaintiffs contend, placing reliance on Ex. A-16, that R.S. No. 120/11 measuring an extent of 13 Kuzhies and 1 Vizam is also comprised within the same boundary description. If Ex. A-22, Commissioner's report, is correct, Exs.A-1 and A-16 insofar as they relate to R.S. Nos. 120/2 and 120/11 are bound to be incorrect. If Ex. A-1 is incorrect and S.F. Nos. 120/2 and 120/9 cannot be within the boundary description, then, the total extent leased out, which is 1 Kani as per Ex. A-1, should also be incorrect. Such a contention lead to the situation that what was leased in R.S. No. 120/10 measuring 33 Kuzhies and 10 Vizams only as per Ex. A-22 read with Item No. 1 in Ex. A-16, which is an unregistered and inadmissible document. In the peculiar facts and circumstances of this case, it would not be proper and prudent to accept the contention of M.K. Yamunan, learned Counsel for the respondents, that the boundary description shall prevail over the survey numbers and the extent and to hold that what was leased out was R.S. No. 120/10 measuring 33 Kuzhies and 10 Vizams wherein construction was said to be found, totally disregarding all other recitals contained in Ex. A-1. Further, acceptance of such contention of the plaintiffs shall amount to altering various details relating to Cadastre Numbers and their corresponding Survey Numbers, the extent and the portion of the extent leased out, etc.
27. Ex. A-21, the deed of mortgage executed by the deceased plaintiff in favour of PIPDIC do not include R.S. No. 120/10 wherein the construction was found. Similar is the case with Ex. A-6, the no objection letter. In the light of the aforesaid facts and circumstances, we are of the view that it would not be possible to ignore/omit/exclude every other details relating to the leasehold lands such as survey numbers, extent, etc., found in several documents and to accept the boundary description alone.
28. Mr. K. Yamunan, learned Counsel for the respondents/plaintiffs, contended that the defendant in Ex. A-8 notice dated 22.10.1982 addressed to PIPDIC had mentioned wrong survey numbers as to the leasehold properties. From this, it is contended by Mr. K. Yamunan, that the defendant was not clear about the leasehold property and also about the property in which the construction was put up. It is needless to point out that the plaintiffs shall succeed or fail on their own pleadings and evidence and not on the basis of any mistake committed by the defendants. The plaintiffs cannot pick holes in the case of the defendant and succeed on that basis. Therefore we hold that the contention of Mr. K. Yamunan in this regard cannot hold water.
29. However, it is contended by Mr. K. Yamunan, that the facts mentioned in the defendant's notice Ex. A-8 to PIPDIC do not relate to the leasehold survey numbers found in Ex. A-1 and hence, there was no reason for the PIPDIC to stop payment to the plaintiffs, that too, after the plaintiffs themselves had issued a lawyer's notice Ex. A-9 to PIPDIC stating that the dispute mentioned in Ex. A-8 notice did not relate to leasehold properties. If it is looked at from this angle, the stoppage of payment by PIPDIC to the plaintiffs-cannot be attributed to the defendant. If that is so, the sheet anchor of the plaintiff s case viz., the plaintiffs could not establish the industry on account of the defendant's objection under Ex. A-8, cannot be justified, since, in our view, the objection itself relates to some other properties. Therefore, we hold that the contention raised on the side of the plaintiffs in this regard cannot be upheld.
30. The totality of the facts and circumstances of the case as spelt out by various documents and the oral evidence adduced on the side of the plaintiffs lead to the irresistable conclusion that the plaintiffs had hot put up the construction on the leasehold lands covered by Ex. A-1 and they had brought about Ex. A-16, the alleged rectification deed, to make it appear that the lands on which the construction was put up were also leased out under Ex. A-1. For all these reasons we hold that the case of the plaintiffs that the defendant had illegally and unjustifiably interfered with the plaintiffs' peaceful possession and enjoyment of the leasehold land, deserves to be rejected. Consequently, in our view, there was no breach of the terms of the contract by the defendant and as such, the plaintiffs' claim for damages was unfounded and deserves to be rejected, for the reasons to be stated infra.
31. Insofar as the quantum of damages claimed by the plaintiffs is concerned, there are neither pleadings nor any evidence let in to prove the damages claimed. The damage itself was claimed on the alleged estimate of PIPDIC authorities in their project report. The said project report was neither summoned nor marked even though some other documents such as Exs.A-1, A-4, A-6, A-8, A-9, A-17 and A-21 were summoned from the custody of PIPDIC authorities and produced for inspection by P.W. 4, the Manager of PIPDIC. The glaring omission on the part of the plaintiffs to call for the alleged project report from PIPDIC has necessarily to be viewed to hold that there was no such report. In the absence of such a report, the amounts claimed by the plaintiffs by way of damages remain unproved. Further, the claim in the nature of a continuing damages at the rate of Rs. 10,000 per month till such time the defendant withdraws his alleged objection, etc., was not at all maintainable. Even assuming that the plaintiffs were put to any loss on account of the improper conduct of the defendant tantamounting to breach of contract, the plaintiffs ought to have taken steps to mitigate their loss as known to law of damages. In this case, admittedly, the plaintiffs took no steps in the direction of mitigation of their alleged loss. On the other hand, the plaintiffs ingeniously framed their reliefs and claimed continuous damages for months and years to come by refraining to take any steps to mitigate the loss.
32. The trial court decreed the claim for damages without any discussion and without even adverting to the fundamental and well established principles governing the adjudication of claim for damages. The trial court in paragraph 12 of its judgment had held as follows:
In this context, I would like to state how far the deceased plaintiff suffered. Even the lady Nirmala passed away on seeing the attitude of the defendant by leaving the plaintiffs 1 to 5. So under such circumstances, it is clearly proved that the act of the defendant is found as per Exs.A-1 and A-8. Not only that as found under Ex. A-6 it will definitely prepare to go for any work. Therefore, the defendant is responsible for the loss incurred by the plaintiffs as calculated by them with reference to the report of the PIPDIC. Therefore, these issues are decided in favour of the plaintiffs and in consequence of it the defendants is directed to pay those amounts as claimed by the plaintiffs within a period of six months, in default the plaintiffs are entitled to proceed against him by way of execution.
33. The above finding, which appears to have prejudiced the mind of the trial court against the defendant, was not supported by any pleading or evidence on record. As a matter of fact, there was no reference about the cause of death of Nirmala. Quite naturally, none of the plaintiffs' witnesses spoke about the cause of death of Nirmala. It would be germane to refer here that in the affidavit filed in LA. No. 246 of 1984 filed after the death of Nirmala to bring her legal representatives on record, it was mentioned that she died only on account of fire accident. Therefore, the finding of the court below in paragraph 12 of its judgment was uncalled for and unwarranted.
34. In the same paragraph viz., paragraph 12, the trial court held that the defendant is responsible for the loss incurred by the plaintiffs as calculated by them with reference to the report of the PIPDIC. Needless to state that a decree for damages, that too, for a continuous damages without regard to any time limit, that too for a sum of Rs. 1.20 lakhs per annum for an alleged breach of contract of lease of a small piece of land on an annual rent of Rs. 1,000 was not only grossly disproportionate but also unconscienable. It would be interesting to note that by the time the judgment was delivered on 16.1.1989, the accumulated damages from 1.1.1983 till that date was to the tune of Rs. 7.20 lakhs as against the rent payable viz., Rs. 6,000. The trial court by granting a decree for damages as prayed for in the suit, as calculated by the plaintiffs with reference to the report of the PIPDIC, which was not at all produced before court, exposes total non-application of mind to the facts, pleadings, evidence and the law governing the grant of damages. This is, indeed, a sad state of judicial adjudication. Therefore, the decree of the court below granting damages as prayed for by the plaintiffs is liable to be set aside.
35. The following narration of events will expose the conduct of the executing court and how the court has acted unfairly, inequitably and with undue haste in order to support the cause of the unjust claim of the plaintiffs. After the suit was decreed by the court below, and before th6 expiry of the appeal time, the plaintiffs levied execution proceedings for the arrest of the defendant and also for the attachment and sale of all the properties owned by the defendant. The court below had passed an order for arrest and also for the attachment and sale of all the immovable properties owned by the defendant. Accordingly, the defendant was arrested and produced before court inspite of his failing health and he was released on his giving an undertaking that he will appear before court on every subsequent hearing.
36. By the time the judgment was delivered by the trial court, huge amount of damages had got accumulated at Rs. 10,000 per month. Hence, the defendant had to value this appeal for the purpose of payment of court-fee as on 2.1.1991 at Rs. 7,25,344 and a court-fee of Rs. 54,402 had to be paid. Since the plaintiffs had attached all the properties of the defendant, he could not raise the huge amount for the purpose of paying the court-fee due on the memorandum of appeal. In these circumstances, the defendant filed C.M.P. Nos. 8825 and 8826 of 1991 in A.S.S.R. No. 966 of 1991 to present the appeal as an indigent person and for stay respectively. The defendant's application to present the appeal as an indigent person was seriously opposed by the plaintiffs. The plaintiffs also produced a tahsildar certificate before this Court at the time of hearing of C.M.P. No. 8825 of 1991, to the effect that the properties owned by the defendant, which were attached, were worth about Rs. 29,57,500. This Court by its order dated 3.7.1991 in C.M.P. No. 8825 of 1991 permitted the defendant to raise funds by mortgaging some of the items of properties under attachment and pay the court-fee on or before 30.9.1991.
37. In the meantime, in E.P. No. 185 of 1990, sale of all the properties of the defendant was ordered to be held on 23.8.1991. In view of the fact that the defendant's application for leave to appeal as an indigent person was pending, no interim stay of execution of the decree was granted by this Court. In the circumstances, the defendant filed E.A. No. 574 of 1991 in E.P. No. 185 of 1990 before the Executing Court seeking adjournment of the sale to a date after 30.9.1991, i.e., after the expiry of the time granted by this Court in C.M.P. No. 8825 of 1991 in order to enable the defendant to raise funds to pay the court-fee. In the affidavit filed in E.A. No. 534 of 1991, the defendant had clearly stated that this Court was pleased to grant time till 30.9.1991 to raise funds by mortgaging some of the items of the attached properties, which were sought to be sold in the execution proceedings, for the purpose of paying the huge court-fee of more than Rs. 54,000. Along with the execution application, the defendant had filed a copy of the common order of this Court in CM.P. Nos. 8825 and, 8826 of 1991 for the ready reference of the executing court. The execution application was filed on 9.8.1991 seeking adjournment of the sale of the properties to be held on 23.8.1991.
38. However, the executing court presided over by Mr.S. Murugaboopathi, who also happened to be the Judge who passed the decree, kept E.A. No. 534 of 1991 pending without passing any orders therein and allowed the sale to take place on 23.8.1991. On the same day, after the sale was over, the execution application was dismissed as infructuous on the ground that the sale was already over. It would be relevant to notice that the plaintiffs were allowed to participate in the auction to bid and to seek set off the auction amount against the decree amount. The plaintiffs were declared as successful bidder of the entire properties for a paltry sum of Rs. 5.85 lakhs when the properties were worth more than Rs. 29,57,500 even according to the estimate of the plaintiffs. When this Court had granted permission to the defendant by its common order made in C.M.P. Nos. 8825 and 8826 of 1991 to mortgage some of the items of the mortgaged properties to raise funds for payment of court-fee of more than Rs. 54,000 and had granted time till 30.9.1991 for the said purpose and when the said fact was brought to the notice of the Executing Judge Mr. S. Murugaboopathi, who also happened to be the Judge who passed the decree, he ought to have kept E.A. No. 534 of 1991 filed by the defendant seeking adjournment of the sale to a date after 30.9.1991, pending without any orders being passed and ought not to have allowed the sale to take place and thereafter dismissed the execution application as infructuous. Such acts on the part of the Executing Judge amount to wilfully rendering the order of this Court ineffective and inoperative, especially when this Court passed such an order after hearing both parties and after hot contest. Once the properties were sold, the question of mortgaging any portion of the same to raise funds to pay the court-fee cannot at all arise.
39. It was grossly improper on the part of the Executing Judge to allow the property to be sold away preventing the judgment-debtor from raising the funds as per the orders of this Court. Such an act on the part of the Executing Judge, in effect, not only be violative of the spirit of the substance of the orders of this Court but also amount to scuttling and denying the judicial remedy in law, that too, by way of first appeal available to the defendant. It is not known what prompted the executing court to take such an obliging attitude towards the plaintiffs disregarding the order of this Court. Such a conduct on the part of the Executing Judge does not inspire confidence. The courts in general should act fairly, justly, equitably and without undue haste, that took in a manner to enable the aggrieved parties to pursue their legal remedies provided by the procedures established by law. The courts while passing orders should not be carried away with any prejudice against any party. The courts are expected to discharge their duties without fear or favour, affection or ill-will. Effectively depriving an aggrieved party to avail a statutory right of appeal, that too by way of first appeal, shall amount to denial of justice, which is antithesis to the Rule of Law.
40. However, the defendant had filed L.P.A. No. 114 of 1991 against the order made in C.M.P. No. 3825 of 1991 and the L.P.A. was allowed on 7.2.1992. As a result of the same, the defendant was allowed to present and prosecute the present appeal as an indigent person. Thereafter, the appeal was numbered and the defendant obtained stay of all further proceedings in the Execution petition in C.M.P. No. 14011 of 1992 in A.S. No. 756 of 1992. This Court while passing the order in C.M.P. No. 14011 of 1992, directed the executing court not to confirm the sale already held on 23.8.1991 and also gave further directions by its order dated 8.12.1992 in CM.P. No. 14011 of 1992.
41. As already seen, the finding of the trial court granting a decree for damages is far from satisfactory. The court below has failed to see that a decree for damages could be granted only if the claim was specifically pleaded with details relating to quantum and proved by positive, specific and direct evidence. But, in this case, the pleading relating to damages was bald and vague. Further, no positive and acceptable evidence was adduced by the plaintiffs in support of the claim for damages. Likewise, the lower court has ignored the fact that the quantum of damages should be determined specifically after due consideration and discussion of the evidence on record in this regard. But, the lower court had decreed the suit as prayed for in a most arbitrary fashion. The court below should have also seen that if at all the plaintiffs had any cause of action, it could only be against PIPDIC and not against the defendant and that a notice from the defendant to PIPDIC shall not create a cause of action for damages against the defendant.
42. Even otherwise, if at all the plaintiffs are entitled to any right and remedy, the same could only be by way of a suit to enforce the terms of the lease. It is apparent from the observations of the court below that 'the defendant was a ruthlessman' and that 'the deceased plaintiff Nirmalapassed away on seeing the attitude of the defendant by leaving the plaintiffs as her legal representatives', that the court below was seriously prejudiced against the defendant. The court below ought to have seen that PIPDIC, which was a proper and necessary party to the suit, was not impleaded as one of the defendants and hence, the suit should fail. Likewise, Ex. A-8 alone shall not be sufficient to decree the suit. The lower court ought to have seen that the estimation of profit was neither exhibited nor proved either by the plaintiffs or by the PIPDIC. Further, the estimation of profit is only an expectation on the basis of assumption of contributing factors. Therefore, unless the assumed contributing factors are pleaded and proved, the expected resultant products cannot be accepted. Such things had not been done in this case. Hence, as rightly urged by Mr. G. Masilamani, learned Senior Counsel for the appellant, the claim for loss of profit was not tenable both on facts and in law.
43. Deceased plaintiff Nirmala died during the pendency of the suit. There is no averment in the plaint that her legal representatives would have continued the business profitable and hence they are entitled for damages. As rightly pointed out by the learned Senior Counsel for the appellant, claiming of damages depends upon certain future events, which involve several factors, which have to be determined before awarding damages. While so, the plaintiffs cannot simply claim damages at Rs. 10,000 per month without producing any materials to prove the certainty of happening of the future events and to determine factors relevant for awarding damages. Therefore, in our opinion, the court below has failed to see that entitlement for the claim for damages is one thing and the quantum of damages so entitled was another thing and therefore the court below ought not to have decreed the suit as prayed for without determining the quantum strictly on the basis of the evidence on record.
44. For all the foregoing reasons, it should be held that the plaintiffs, in our opinion, had miserably failed to establish that the deceased plaintiff Nirmala had put up construction in the leasehold land and consequently, the defendant was guilty of breach of the terms of the contract of lease. Hence, we hold that the plaintiffs are not entitled to claim any damages and that the defendant is not entitled to pay damages to the plaintiff. Moreover, the plaintiffs had not proved satisfactorily that they had suffered any damages, that too, the amounts claimed by them as damages.
45. In the result, the appeal is allowed, the judgment and decree of the court below are set aside and the suit is dismissed with costs throughout. In view of the dismissal of the suit, all proceedings taken in pursuance to the judgment and decree of the court below by way of execution proceedings, etc., should ab initio stand set aside and terminated.