Full Judgment Text
REPORTABLE
2023 INSC 969
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL)
NOS………………..…OF 2023.
(arising out of SLP (C) Diary No.8674 of 2020)
MOHIDEEN ABDUL KHADAR
(DEAD)THROUGH LRS. ...PETITIONERS
VERSUS
RAHMATH BEEVI (D) THR. HER LRS.
AND ORS. ...RESPONDENTS
J U D G M E N T
ANIRUDDHA BOSE, J.
Delay condoned.
2. The present petitions have been filed by two nephews of one
Mohideen Abdul Khadar, who died on 14.06.2019. He had interest
in two blocks of lands, adjacent to each other located in Thenkasi
Taluk, Kadayanallurpet within the Kadayanallur municipal limits in
the State of Tamil Nadu. The petitioners bring this action in the
capacity of legatees of said Mohideen. The dispute relates to title of
Signature Not Verified
Mohideen in respect of one block out of the two, described as first
Digitally signed by
SNEHA DAS
Date: 2023.11.02
17:00:39 IST
Reason:
scheduled property in his plaint which triggered off the suit giving
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rise to this proceeding. The other part of the dispute is over retention
of his possession and tenancy right in respect of second scheduled
property, as described in his plaint. The first scheduled property
measures approximately 15x15 sq. feet over which Mohideen claimed
title whereas the second scheduled property measures approximately
15x18 sq. feet. There is some dispute on its measurement, which we
shall deal with later in this judgment. In respect of the latter block
of land, one Rahmath Beevi sued for delivery of vacant possession
whereas Mohideen asked for protection of his possession in his suit.
The original owner of both these properties was one Ameenal Beevi
(since deceased) and she had conveyed the first scheduled property
to Mohideen on 16.08.1989 through a deed of sale. So far as the
second scheduled property is concerned, the case of the petitioners
is that it was rented out to their predecessor by Ameenal Beevi only.
Said Ameenal Beevi had conveyed this property to Rahmath Beevi
(since deceased) on 30.05.1995 through another deed.
3. Original Suit No. 172 of 1995 was instituted by Mohideen in the
Court of Principal District Munsif Judge, Thenkasi. In this suit
Mohideen claimed benefit of Tamil Nadu City Tenants Protection Act,
1921. This Statute gives certain additional protection to a class of
tenants beyond what is contained in the Transfer of Property Act,
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1882 (hereinafter ‘1882 Act’). Mohideen along with one Sahul
Hameed, who also appears to have had been in occupation of part of
the land conveyed to Rahmath Beevi by Ameenal Beevi had been
served with notices to quit by Rahmath Beevi in terms of Section 106
of the 1882 Act both dated 11.08.1995. Mohideen wanted
declaration of title to the first scheduled land and permanent
injunction restraining the defendants from disturbing his peaceful
possession over the second scheduled property. So far as status of
first scheduled property is concerned, Mohideen’s title is not in much
dispute. In their counter-affidavit, petitioners claiming to be the legal
representatives of Rahmath Beevi (henceforth referred to as the
respondents) have taken a plea that Mohideen himself had sold the
first scheduled property on 06.12.2017 to his two nephews. They
appear to be the petitioners before us.
4. Rahmath Beevi’s (second defendant in O.S. No.172 of 1995,
represented by her legal representatives before us) stand has been
that she had become owner of the second scheduled property on the
basis of the aforesaid registered sale deed. Rahmath Beevi, in the
suit instituted by her (O.S. No.464 of 1995) in the same Court
claimed relief of mandatory injunction seeking removal of Mohideen
and Sahul Hameed from the properties specified by her. They were
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the first and the second defendants respectively in Rahmat Beevi’s
suit. In this suit, she also claimed ground rent from the defendants
in that suit. In her suit, she referred to four schedules to describe
the suit property representing different interests. The first schedule
in O.S. No.464 of 1995 matches with the first schedule of O.S.
No.172 of 1995. As regards the second scheduled property, it was
Rahmath Beevi’s case that it involved an area of 15x18 sq. feet. The
third scheduled property in her plaint comprised of an area of
6.2x6.9 sq. feet within second scheduled land. As recorded in the
judgment of the Trial Court in respect of the third scheduled
property, Sahul Hameed was the tenant thereof, but he did not
contest the suit. It was held by the Trial Court that three-fourth
portion of the third scheduled property was within the second
scheduled land and the rest of the third scheduled property fell in
the first scheduled land. Said Sahul Hameed, as it appears from the
cause title of this petition, is the son of Rahmath Beevi. The fourth
scheduled property in the plaint in O.S. No.464 of 1995 has been
described as:-
“ 4th Schedule
In the said number said street, bounded on the east of the
road and the 3rd schedule, south of Ameenal Beevi shop,
north of the 3rd schedule and the 1st schedule of properties.
West of Ameenal Beevi land. Within these east to west on
the northern side 15 feet, southern side 8 feet, 10 inches,
South to north on the western side 11 feet 3 inches, easter
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side 18 feet.”
5. It was the case of Rahmath Beevi that Mohideen had taken on
rent the fourth scheduled land from Ameenal Beevi and put up a
“temporary shop” there. The pleading in the plaint gives an
impression that it was a temporary structure. In her suit, Rahmath
Beevi wanted vacant possession of the fourth scheduled property and
removal of the construction set up thereon. The Trial Court granted
declaration in favour of Mohideen in respect of first scheduled
property. His claim on second scheduled property was dismissed.
The suit instituted by Rahmath Beevi was decreed in the following
terms:-
“O.S.No.464/95 is allowed with costs, it is held that the
plaintiff is entitled to get the delivery of vacant possession
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of the 4 suit schedule property from the 1st defendant and
that the plaintiff is entitled to get the delivery of vacant
possession of the 3rd suit schedule property from the 2nd
defendant and that in default of delivery of possession by
the two persons, the plaintiff shall get the delivery of
possession through court, and the 1st defendant has to pay
the sum of Rs.216/- towards the damages for use and
occupation of the 4th suit schedule property till the date of
suit, from the date of suit till the date of payment along with
6% further interest and that the 2nd defendant has to pay
the sum of Rs.216/- towards damages for the use and
occupation of the 2nd schedule of property till the date of
suit, from the date of suit till the delivery of possession with
further interest of 6% and from the date of filing of suit till
the date of delivery of the 2nd schedule of property, by the
defendants, the interim income of Rs.100/- to be paid by the
st
1 defendant to the plaintiff and Rs.50/- to be paid by the
nd
2 defendant to the plaintiff and the suit is decreed.”
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6. Mohideen appealed against the judgment and decree in both
the suits. The First Appellate Court sustained the Trial Court’s
finding in O.S. No.172 of 1995 as regards first scheduled property,
but the Trial Court’s judgment on second scheduled property was set
aside. The judgment and decree of the Trial Court in O.S. No.464 of
1995 was set aside. Both the Trial Court and the First Appellate
Court had dealt with the matters by a common judgment (of each
Court). Rahmath Beevi had filed two appeals before the High Court
under Section 100 of the Code of Civil Procedure, 1908 and the High
Court also disposed of both the appeals by a common judgment
delivered on 25.09.2018. It is this judgment which is assailed before
us by the petitioners.
7. Disputes had arisen over dimension of the second scheduled
property. The High Court, on this count, has recorded in the
judgment assailed before us:-
“ 17. It is pertinent to observe that the major portion of the
third schedule property lies in the second schedule and the
lesser area alone lies in the first schedule property, hence,
the 3/4th portion of the third schedule property lies in the
second schedule property. It is the evidence of the first
defendant that he only constructed the permanent structure
and the second defendant is paying rent to him. Further, it
is also the evidence of the first defendant that the second
schedule property was purchased by the plaintiff and the
North South measurement is 18 feet and there were road
lines on the Southern side of the first schedule property and
the first schedule property is also a vacant site and it has
been shown as a area with bushes. The first defendant has
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also deposed that he has omitted to state that the 6 feet on
North South property given to Sahul Ahmeed (second
defendant) for rent. It is also the clear evidence of the first
defendant that there is no written document for giving rent
to Sahul Hameed. Further, the said Sahul Hameed who was
the tenant under first defendant, was not examined by the
first defendant. Further, it is also observed that for the legal
notice issued by the plaintiff, the second defendant who
claimed to be his tenant has not made any reply. Hence, it
has to be presumed that the second defendant Sahul
Hameed was originally a tenant under the Ameenal Beevi
and was never a tenant of the second defendant.”
In his cross-examination (at page 42 of the photocopy of the counter-
affidavit of respondent nos.3 to 9), Mohideen had specifically stated:-
“I bought the 1st schedule property as 15 feet South - North.
I don't have more than that South - North 15 feet. It is correct
to be said that I don't have more than 15 feet in South - North
as per Sale Agreement. It is correct to be said that the 2nd
schedule property is bought by Rahmath Beevi. It is correct
to be said that she bought 18 feet South - North. It is correct
to be said that the East - West road is on the South of the
South Mall to the 1st schedule property.”
The deed of conveyance executed by Ameenal Beevi in favour of
Rahmath Beevi, the copy of which has been annexed at page 38 of
the same counter-affidavit also describes the schedule of the
property sold to the latter as:-
“ 1st Schedule Sale Property
Tenkasi Reg. Dist, Kadayanallur Sub Regr., Kadayanallur
rd
village, 23 Ward, Town Municipality, in the 1st, 11th No.
Road Street, New Ward No. 11, Street No.1, the plot on the
east side, the boundaries are:
East of 11th No. Main Road; West of my own plot; north of
Abdul Khader Muhaideen's plot; South of my own site;
within these 15 feet on the East-West side, 18 feet on the
South- North, the plot of 270 sq.ft, in S.No. 59 to 61. The
value is Rs.14,850/-”
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Thus, we are of the opinion that the second scheduled property in
Rahmath Beevi’s plaint showing measurement of 15 feet (east-west)
and 18 feet (north-south) is the correct measurement thereof.
Therefore, we do not find any reason not to accept this measurement.
8. The other points of law that we shall address now is on the
question of validity of notice under Section 106 of the 1882 Act and
whether the petitioners were entitled to protection of the Tamil Nadu
City Tenants Protection Act or not. The High Court found both the
points in favour of the predecessor of the respondents. It has been
held by the High Court:-
“ 14 ….It is not in dispute that the first schedule
property in both the suits are one and the same. The
second schedule property is shown with the
measurements 15x15 ft. in O.S.No.172 of 1995,
whereas, according to the plaintiff in O.S.464 of 1995,
it is 15x18. The first defendant claimed that he entered
into a lease deed with Ameenal Beevi as regards
second schedule property vide Ex.A2 on 20.03.1985
and he made permanent construction over it and that
he has been paying rent to the in respect of the said
property to the sons of Ameenal Beevi and therefore,
according to him, he is entitled to the protection under
City Tenants Protection Act. While so, it is pertinent to
note that the plaintiff purchased the second schedule
property from the original owner Ameenal Beevi by
way of sale deed dated 30.05.1995 under Ex.A1 and
after purchase, she issued quit notice dated 1.10.1995
under Section 106 of the Transfer of Property Act to the
defendants 1 and 2. It is also pertinent to note that the
first defendant has purchased the first schedule
property from Ameenal Beevi, in respect of which, he
claimed declaration of title, which was rightly granted
by the trial Court. The first defendant only claims
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tenancy rights over the second schedule property and
sought for protection under City Tenants Protection Act.
According to the first defendant, the sale deed
executed by the Ameenal Beevi in favour of the plaintiff
under Ex.A1 dated 30.05.1995 in respect of second
schedule property, is not legally valid and it is not
binding upon him. However, in order to prove the same,
the first defendant has not produced any documents
nor he proved that the original owner Ameenal Beevi
had not sold the property to the plaintiff. Therefore,
after purchase the second schedule property from
Ameenal Beevi, the plaintiff has rightly issued the quit
notice under Section 106 of the Transfer of Property Act
to the defendants 1 and 2 which, in the opinion of this
Court, is valid since the plaintiff stepped into the shoes
of Ameenal Beevi after having purchased the second
schedule property and after issuing quit notice, she
also terminated the tenancy. Hence, the first
defendants is not entitled to the benefits under City
Tenants Protection Act. Accordingly, these issues are
answered in favour of the plaintiff and against the
defendants.”
We do not find any reason to interfere with the said finding returned
by the High Court. The High Court, in substance, retained the
decision of the Trial Court in Mohideen’s Suit (O.S. No.172 of 1995)
in relation to second scheduled property. As regards Rahmath Beevi’s
suit (O.S. No.464 of 1995), the High Court held:-
“ 19 . In view of the above discussion, the plaintiff in
O.S.No. 464 of 1995 is entitled for recovery of
possession of fourth schedule of property which is also
the second schedule property in O.S.No. 172 of 1995.
Accordingly, the first defendant in O.S.No.464 of 1995
has to pay the rent at Rs.100/- towards fourth
schedule property and the second defendant has to
pay Rs.50/- and the plaintiff in O.S.No.464 of 1995 is
entitled to mesne profits at Rs.150/- from the date of
the suit till the date of judgment payable by the
defendants 1 and 2.”
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9. Before us, arguments were also advanced as regards locus of
the petitioners to maintain these petitions. The second appeal by the
High Court was decided on 25.09.2018 and the present petitions
have been filed on 03.03.2020. The petitioners are staking their claim
as legatees of deceased Mohideen, who passed away on 14.06.2019.
The petitioners claim that the will had been executed on 18.04.2018
bequeathing the testator’s possession and enjoyment over the second
scheduled property. On behalf of the respondents, it has been argued
that without proving the said testamentary instrument, the
petitioners could not challenge the judgment of the High Court in the
capacity of legatees. It was further argued that tenancy could not
be a subject of disposition under any testamentary instrument. So
far as locus of the petitioners is concerned, this Court had allowed
their plea for substitution by an order passed on 31.08.2021. Now
by proceeding on the basis that the petitioners were substituted
would not determine finally their locus to maintain the present
petitions deriving their right from the said testamentary instrument.
But as we have held against the petitioners on merit, we do not need
to examine these two issues. The present petitions accordingly stand
dismissed.
10. Interim order, if any, shall stand vacated in the above terms.
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11. Pending application(s), if any, shall stand disposed of.
12. There shall be no order as to costs.
………………………………. J.
(ANIRUDDHA BOSE)
……………………………… J.
(SUDHANSHU DHULIA)
NEW DELHI;
NOVEMBER 1, 2023
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