(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code to set aside the Judgment and decree dated 23.06.2017 passed by the Sub Court, Virudhunagar, in A.S.No.12 of 2016 confirming the judgment and decree dated 09.02.2016 passed in O.S.No.130 of 2002 by the District Munsif, Virudhunagar and thus render justice.)

1. Being aggrieved by the concurrent findings of the trial Court and the first appellate Court, the plaintiffs herein has preferred this second appeal, against the judgment and decree, dated 23.06.2017 passed by the Sub Court, Virudhunagar, in A.S.No.12 of 2016 confirming the judgment and decree dated 09.02.2016 passed in O.S.No.130 of 2002 by the District Munsif, Virudhunagar.

2. The appellants/ plaintiffs has sought for a relief of declaration, which has been dismissed by the trial Court and affirmed by the first appellate Court.

3. The Second Appeal is yet to be admitted. However, by consent, the second appeal has been taken up for final hearing.

4. I have heard Mr.R.Paranjothi, learned counsel for the appellants, Mr.S.Parthasarathy, learned counsel appearing for the first respondent and Mr.G.Mariappan, learned counsel appearing for the second respondent.

5. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

6. According to the plaintiffs, the suit property originally belonged to the first defendant. One Rathinam Thevar had entered into a lease agreement with the first defendant, pursuant to which the suit property was leased to him many years ago. During his lifetime, Rathinam Thevar managed the suit property through the plaintiffs, who are his nephews. The plaintiffs have been looking after and maintaining the suit property on behalf of Rathinam Thevar. During his lifetime, Rathinam Thevar executed a Will dated 31.12.1999, whereby he bequeathed his leasehold rights in the suit property to the plaintiffs. Thereafter, Rathinam Thevar died on 29.01.2001. Following his demise, the plaintiffs succeeded to the leasehold rights under the said Will and continued in possession of the suit property. The plaintiffs also paid the lease rent to the second defendant, who accepted the same without objection. However, all of a sudden, the defendants interfered with the plaintiffs' peaceful possession and enjoyment of the suit property. Hence, the plaintiffs were constrained to institute the present suit seeking appropriate reliefs.

7. The defendants contested the suit by admitting that the suit property had originally been leased to Rathinam Thevar. However, according to the first defendant, Rathinam Thevar had surrendered the possession of the suit property on 31.12.2000, prior to his death. Therefore, the defendants disputed the plaintiffs' claim over the suit property based on the Will alleged to have been executed by Rathinam Thevar. The defendants further contended that Rathinam Thevar was only a licensee in respect of the suit property and that the rights of a licensee are purely personal in nature, which come to an end upon the death of the licensee and are not heritable or transferable. It was also contended that the plaintiffs had failed to establish that they were the legal heirs of the deceased Rathinam Thevar. On the above grounds, the defendants prayed for dismissal of the suit.

8. Before the trial Court, on the side of the plaintiff P.W.1 to P.W.5 witnesses were examined and 34 documents were marked as Ex.A1 to Ex.A34. On the side of the defendant, two witnesses were examined as D.W.1 and D.W.2 and 15 documents were marked as Ex.B1 to Ex.B15.

9. The trial Court, on consideration of the pleadings and evidence adduced by the parties, dismissed the suit on 09.02.2016, as against which, the the plaintiffs preferred an appeal in A.S.No.12 of 2016, before the Sub-Court, Virudhunagar, which was also dismissed, confirming the findings of the trial Court.

10. Aggrieved by the concurrent findings of the trial Court as well as the first appellate Court, the plaintiffs filed the present second appeal.

11. The learned counsel appearing for the appellants/plaintiffs submitted that the plaintiffs had duly proved the Will before the Trial Court and, on the strength of the said Will, claimed the leasehold rights in respect of the suit property. However, the Courts below failed to properly appreciate the oral and documentary evidence adduced by the plaintiffs, particularly with regard to the validity and effect of the Will. It was therefore contended that the findings of the Courts below are unsustainable in law and on facts. Accordingly, the learned counsel prayed that the appeal be allowed.

12. Per contra, the learned counsel appearing for the respondents contended that Rathinam Thevar was the original licensee of the suit property and that he had voluntarily surrendered possession of the property during his lifetime. It was further contended that, having surrendered the leasehold rights, Rathinam Thevar had no subsisting right or interest in the suit property and, therefore, was not competent to execute the Will so as to transfer any leasehold rights in favour of the plaintiffs. Consequently, the plaintiffs acquired no valid right under the alleged Will. He thus submitted that the Courts below had rightly appreciated the evidence on record and dismissed the suit. Hence, no interference is warranted by this Court in the present Second Appeal.

13. I have carefully considered the submissions advanced by the learned counsel for the parties.

14. Considering the aforesaid submissions and upon perusal of the materials available on record, it is evident that Rathinam Thevar was the lessee in respect of the suit property belonging to the first defendant and that he died on 29.01.2001. Following his demise, the plaintiffs claimed leasehold rights over the suit property on the strength of a Will alleged to have been executed by Rathinam Thevar and further asserted that they were his close relatives. However, the plaintiffs failed to produce any acceptable evidence to establish either that they were the close relatives or legal heirs of Rathinam Thevar or that they had validly succeeded to the leasehold rights. Even assuming that the Will had been duly proved, the leasehold rights enjoyed by Rathinam Thevar were personal to him and, in the absence of any contractual or statutory provision permitting their transfer or inheritance, such rights did not survive his death. Consequently, the plaintiffs could not claim any enforceable right over the suit property solely on the basis of the alleged Will. The Courts below have rightly appreciated the oral and documentary evidence on record and have correctly held that the plaintiffs failed to establish any legally enforceable right over the suit property. This Court finds no perversity or illegality in the concurrent findings recorded by the Courts below warranting interference in the present Second Appeal.

15. I do not find any substantial grounds arising for consideration in the second appeal, warranting interference under Section 100 of the Code of Civil Procedure.

16. In fine, the second appeal is dismissed and the judgment and decree in O.S.No.130 of 2002, on the file of the District Munsif Court, Virudhunagar, by affirming the judgment and decree in A.S.No.12 of 2016, on the file of the Sub-Court, Virudhunagar, is hereby confirmed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.