S MURUGESAN Vs. V VIJAY SAI

JUDGEMENT

(1.) THE Plaintiff, who lost his case before both the courts below, is the appellant in this second appeal. For the purpose of convenience, the parties are arrayed as they were arrayed in the suit.

(2.) THE Plaintiff filed the suit in OS.No.10153/1996 before the VIII Assistant Judge, City Civil Court, Chennai for recovery of a sum of Rs.1,38,141/- being the present cost of construction together with interest thereon at 24% p.a. and another sum of Rs.1,49,700/- being the advance amount together with interest thereon at 24% p.a. and for permanent injunction, restraining the Defendants from disturbing his possession and enjoyment of the I Floor and the terrace as well as all other common portions or amenities as enjoyed by the Plaintiff being part of the schedule mentioned property in any manner and the trial court decreed the suit that the Plaintiff is entitled to get Rs.12,225.42/- towards the cost of the construction from the Defendants 2 to 4 at the time of vacating the suit property by the Plaintiff and that in other respects, dismissed the suit and decreed the counter claim of the Defendants with costs for a sum of Rs.74,906/- with future interest thereon at 12% p.a. from the date of counter claim i.e. from 28.10.1994 till the date of the decree and at 6% p.a. thereafter till payment. As against the same, the Plaintiff filed an appeal in AS.No.238/2005 before the Additional District and Sessions Judge (FTC III) Chennai, which was dismissed, confirming the judgment and decree of the trial court. Aggrieved by the same, this second appeal has been filed by the Plaintiff.

(3.) THE lower appellate court also found that the Plaintiff was the tenant under Lakshmipathy Naidu from 1.3.1972 onwards as per the rental agreement, Ex.A1 dated 1.3.1972, and the said Lakshmipathy Naidu himself filed a petition in RCOP.No.1947/1986 and the fair rent was fixed at Rs.1418/- for the I Floor, which was in occupation of the Plaintiff and that both the Plaintiff and the said Lakshmipathy Naidu filed rent control appeals in RCA.Nos.1006/92 and 1005/92 and the fair rent was fixed at Rs.1470/- p.m. by common order dated 22.2.1996, Ex.B6 and it was also further held by the lower appellate court that the Defendants marked Ex.B4, notice dated 26.9.1983 and Ex.B3, notice dated 5.4.1973, during the cross examination of Plaintiff/PW.1 on 14.7.2003 and that in Ex.B4, it is found mentioned as under:-"This is therefore, to call upon you for payment of the said sum of Rs.12,250/- expended by my client towards repairs. My client states further that he has paid a total sum of Rs.20,900/- as advance which amount also you are liable to return to my client.This is therefore, to call upon you to return the said sum of Rs.33,150/- failing which my client will be constrained to file a suit for recovery of the said amount and also attach the property as you are making arrangements of the sale of the property in which event you will be liable for interest and cost."And that in Ex.B3, dated 5.4.1993, the first notice, the Plaintiff has not mentioned anything about the payment of advance allegedly made by him to the Defendants or the payments made under Exs.A3 to A5. Considering Exs.A3 to A6, the lower appellate court further held that the signatures found in Exs.A3 to A6 are different from the signatures found in Ex.A1 and hence, refused to accept the same and that the Plaintiff has not proved his claim made in the suit and that on the contrary, the Defendants proved their counter claim by adducing both oral and documentary evidence and ultimately, dismissed the appeal, concurring with the findings of the trial court and confirming the judgment and decree of the trial court.