MOHIDEEN ABDUL KHADAR (DEAD)THROUGH LRS.versusRAHMATH BEEVI (D) THR. HER LRS. AND ORS.

                 [2023] 14 S.C.R. 164 : 2023 INSC 969



                            CASE DETAILS

     MOHIDEEN ABDUL KHADAR (DEAD)THROUGH LRS.
                                     v.
         RAHMATH BEEVI (D) THR. HER LRS. AND ORS.
(Petition For Special Leave To Appeal (Civil) Nos 24748-24749 of 2023)
                          NOVEMBER 01, 2023
    [ANIRUDDHA BOSE AND SUDHANSHU DHULIA, JJ.]

                              HEADNOTES

     Issue for consideration: Dispute inter alia over retention of possession
and tenancy right of predecessor of the petitioners in respect of second
scheduled property (measurement of which was disputed in the suit filed
by the predecessor of the respondents), as described in his plaint.
       Suit – As regards the second scheduled property, the case of the
petitioners is that it was rented out to their predecessor by its owner ‘AB’
– ‘AB’ had conveyed this property to the predecessor of the respondents
through another deed – Predecessor of the petitioners sought declaration
of title to the first scheduled land and permanent injunction restraining
the defendants from disturbing his peaceful possession over the second
scheduled property – In the suit instituted by the predecessor of the
respondents, mandatory injunction was sought seeking removal of
petitioner’s predecessor along with another person from the properties
specified – Dispute over dimension of the second scheduled property
– Validity of notice u/s.106, Transfer of Property Act – Petitioners if
entitled to protection of the Tamil Nadu City Tenants Protection Act:
      Held: The second scheduled property in the plaint filed by the
predecessor of the respondents showing measurement of 15 feet (east-west)
and 18 feet (north-south) is the correct measurement thereof– No reason not
to accept this measurement – Further, on the question of validity of notice
u/s.106, 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 – No reason

                                    164
   MOHIDEEN ABDUL KHADAR (DEAD)THROUGH LRS. v.                           165
         RAHMATH BEEVI (D) THR. HER LRS.

to interfere with the finding returned by the High Court – In substance, it
retained the decision of the Trial Court in the suit filed by the predecessor
of the petitioners in relation to second scheduled property – Transfer of
Property Act, 1882 – s.106 – Tamil Nadu City Tenants Protection Act, 1921.
[Paras 7 and 8]
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil)
Nos.24748-24749 of 2023.
     From the Judgment and Order dated 25.09.2018 of the High Court of
Judicature at Madras at Madurai in SAMD Nos.576 of 2002 and 02 of 2005.
     Appearances:
     Varinder Kumar Sharma, Yugal Kishor Prasad, Ms. Parul Sharma,
Shantanu Sharma, Bishan Dass, Ms. Deeksha Gaur, R. S. Mishra, Mahendra
Singh, Advs. for the Petitioners.
     Ms. Shalini Kaul, Adv. for the respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     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 Mohideen in respect of one
block out of the two, described as first scheduled property in his plaint
which triggered off the suit giving 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
166          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


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, 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 the first and the second defendants
  MOHIDEEN ABDUL KHADAR (DEAD)THROUGH LRS. v.         167
 RAHMATH BEEVI (D) THR. HER LRS. [ANIRUDDHA BOSE, J.]

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
     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 of the 4th 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
168           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      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 1st
      defendant to the plaintiff and Rs.50/- to be paid by the 2nd defendant
      to the plaintiff and the suit is decreed.”
      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
  MOHIDEEN ABDUL KHADAR (DEAD)THROUGH LRS. v.         169
 RAHMATH BEEVI (D) THR. HER LRS. [ANIRUDDHA BOSE, J.]

     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 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 village,
     23rd 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/-”
170           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


     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 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,
  MOHIDEEN ABDUL KHADAR (DEAD)THROUGH LRS. v.         171
 RAHMATH BEEVI (D) THR. HER LRS. [ANIRUDDHA BOSE, J.]

     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.”
      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
172            SUPREME COURT REPORTS                       [2023] 14 S.C.R.


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.
      11. Pending application(s), if any, shall stand disposed of.
      12. There shall be no order as to costs.


Headnotes prepared by:                                       Petitions dismissed.
Divya Pandey