TMI Blog2009 (11) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... y plaintiff, 2 cents was given to appellant/defendant on oral paguthy arrangement on 01.08.1980. Further case of plaintiff is that from January 2001 defendant failed to pay paguthy and defaulted in paying paguthy for about 2 years. Plaintiff issued legal notice on 08.01.2003 and caused another notice Ex.A5(04.02.2003) to defendant to hand over vacant possession on 01.03.2003. Defendant received the said notice and sent reply (Ex.A8-13.02.2003). In his reply defendant denied title of plaintiff in the suit property. Hence, plaintiff filed suit seeking recovery of possession and also arrears of paguthy (lease rent). 3.Resisting the suit, defendant filed written statement contending that he was working under Kakthan Mudaliar, son of Govindas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease of the vacant site and therefore, defendant cannot deny being a paguthidar. In so far as contention regarding limitation, lower Appellate Court held that the defendant has not come out with a clear case as to how he came to be in possession of the suit. Confirming findings of the trial Court, lower Appellate Court dismissed the first appeal. 7.Being aggrieved by concurrent findings of Courts below directing delivery of vacant possession plaintiff has filed this Second Appeal. At the time of Admission, the following Substantial question of law was framed for consideration: Whether the findings of the Lower Courts that there exist landlord-tenant relationship between the parties is vitiated by perversity as there is no legal evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to the defendant under an oral paguthy arrangement (lease of site) on rent which was fixed periodically. In his evidence plaintiff/PW1 has clearly spoken about oral paguthy arrangement from 01.08.1980 and lease rent payable and that defendant committed default in paying lease rent from 2001 onwards. 11.Per contra, defendant traces his right through one Govindasamy Mudaliar under whom he worked. According to defendant, family of Govindasamy Mudaliar permitted him to put hut in the suit property, about 30 years prior to the filing of suit and accordingly he is in possession of the property. As held by Courts below, defendant has not adduced any evidence to substantiate his plea. Neither Govindasamy Mudaliar nor his family members or man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. He is also paying the paguthy to your client. He is also entitled to the benefits of the Kudiyiruppu Act 14.Denying receipt of Ex.A8 notice, learned counsel for defendant contended that a portion of Ex.A9 has been torn and therefore, no reliance could be placed upon contents in Ex.A9. As held by Courts below, even though defendant denied receipt of notice, he has admitted his signature in Ex.A7 acknowledgment. That apart perusal of Ex.A9 shows that notice has been sent to the plaintiff's counsel. Even though name of defendant is not there in Ex.A9, it contains name of plaintiff's counsel and plaintiff's name and crucial admission by the defendant being a paguthidar. There is no force in the contention that Courts below co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Madhusudhan Panda and others. 17.As pointed out earlier after exchange of notice in 1980, lease might have been renewed afresh. In his evidence PW1 has clearly spoken about paguthy arrangement from 31.08.1980, initially lease rent of ₹ 1 per month from 1982 to 1990 and thereafter fixed at ₹ 7/- per month. Plea of limitation was neither raised in the written statement nor made an issue in the trial Court. For the first time, plea of limitation was raised only in the lower Appellate Court. 18.Contending that plea of bar of limitation need not be pleaded and it is a question of law and Court has duty to take note of plea of limitation, learned counsel for defendant placed reliance upon 1996.1.MLJ, page 1, The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance or facts showing illegality. All points either of law or fact which are desired to be taken must be particularly pleaded and they should be stated in the written statement specifically and clearly. It is well settled that where a claim has never been in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. Facts showing non-maintainability of suit because of limitation not pleaded by defendant cannot be raised at close of trial. 20.I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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