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2002 DIGILAW 506 (MAD)

Boothathan v. Subbiah Thevar

2002-06-24

P.SHANMUGAM

body2002
Judgment : 1. Defendant in the suit and appellant before the Subcourt is the appellant in this second appeal. Plaintiff is the father of the defendant/appellant. He had filed a suit for declaration and for recovery of possession of the suit property at Door No.20-B, South Street, Ward III of Melakottaram Village, fully described in the schedule to the plaint. The trial court granted the decree in favour of the father and it was confirmed in appeal. The second appeal is against this confirming judgment and decree. 2. Plaintiff, who is already 80 years old, has put up a house by utilising his own funds and the funds given on his retirement after thirty years of service as Labourer in Madura Coats. He had put up two houses side by side after obtaining planning permission from the Panchayat. The property has been assessed in the name of the respondent and he had been paying electricity, water and other charges. The respondent has got two sons and two daughters. The appellant, being slightly handicapped, the respondent had helped him to get a job in the same mill where he had worked and permitted him to occupy one of his two houses. However, instead of helping the respondent and other members of the family, he refused to assist him in getting his daughters married and even to provide him food and other basic necessities, which are the duties expected of a son. The respondent had to struggle hard to get his two daughters married without the assistance and help of the appellant. While the appellant was not providing food and other assistance, he attempted to secure the house property which the respondent had permitted him to occupy. He had filed a suit O.S. No.320 of 1992 and the same was pending. In the above circumstances, the respondent was constrained to issue a notice on 10.7.1993 cancelling his permission and requesting the appellant to vacate the house and hand over possession to him, and on his failure to do so, when the appellant made false claims over the house property which the respondent has put up, the respondent was constrained to file the above suit. 3. The case of the appellant as defendant was that the property was purchased jointly and that he had contributed for the purchase of the same. 3. The case of the appellant as defendant was that the property was purchased jointly and that he had contributed for the purchase of the same. According to him, he had provided funds for construction of the house as the respondent could get only a meagre amount after his retirement and the taxes and other charges were paid by the appellant. He has stated that he had also maintained the family and assisted his father by providing monthly maintenance and that he has filed the suit O.S. No.320 of 1993 as a last resort. On these pleadings, the trial court, after framing the issues and considering the oral and documentary evidence, found that it is the father who had purchased the house plot and put up two houses and had been paying the charges and enjoying the same exclusively, and on that basis, decreed the suit. The findings were confirmed by the Subcourt. 4. Mr. R.N. Kothandaraman, learned counsel appearing on behalf of the appellant, submitted that the appellant is a co-owner of the property and that he has perfected his title by his exclusive, continuous, adverse possession. He further submitted that the appellant has spent his funds for construction of the house and therefore, he is entitled to continue in possession of the property and the suit ought to have been dismissed as against the son who does not have any other house to live in. 5. I have heard the counsel and considered the matter carefully. 6. The fact that the vacant land was purchased in the name of the appellant's father, the respondent herein, on 14.11.1975 under Ex.A.1 in his name and that the respondent has obtained the planning permission, Ex.A.21 dated 23.8.1977 as well as the Plan, Ex.A.22 is not in dispute. After construction of the houses, the property was assessed in the name of the respondent as evidenced by Exs.A.12, A.13 and payment of property tax under Exs.A.17, A. 18, electricity charges under Ex.A.19 and water charges under Ex.A.20 was made by him. Therefore, the document of title, i.e. the purchase of the vacant site, the construction of the house and the assessment are all in the name of the appellant's father. The appellant has not disputed that his father was working as a labourer with Madura Coats and had retired in the year 1976. The vacant land was purchased on 14.11.1975. Therefore, the document of title, i.e. the purchase of the vacant site, the construction of the house and the assessment are all in the name of the appellant's father. The appellant has not disputed that his father was working as a labourer with Madura Coats and had retired in the year 1976. The vacant land was purchased on 14.11.1975. As per Ex.A.1, the consideration for the sale was Rs.3,000, of which Rs.800 was given as advance earlier and Rs.2,200 was given before the Sub Registrar by the respondent. 7. The courts below found that the respondent had sufficient funds to purchase this vacant land in the end of the year 1975 since he was retiring after thirty years of service and he should have utilised his retirement benefits for the purchase of the vacant land, which was admittedly in his name. Whereas, the appellant had joined the service temporarily only in the year 1974 and he was getting a salary of Rs.75 per month and his services became permanent only after 1-1/2 years. Therefore, there was no possibility for the appellant to have contributed any funds and his case that he has jointly purchased the property along with his father was rightly disbelieved by both the courts below. There are no records whatsoever to show that the appellant has contributed for the purchase of the property. Similarly, there are absolutely no records to show that the appellant had contributed for the construction of the house also. From the available records, the courts below found that the planning permission was obtained by the appellant's father and with the plan approved in his name, he has put up the construction with his funds. Admittedly, the suit filed by the appellant O.S. No.323 of 1993 against his father was dismissed on 26.8.1997 for default and no steps had been taken by the appellant for restoration or for further proceedings. The exhibits marked by the appellant, Exs.B.1 to B.7 had been considered by the appellate court and it was found that in all these documents, the assessment is in the name of the respondent and in some receipts, the name of the person who has remitted the tax had been mentioned and the appellant's name was so mentioned in that column. The appellant has admitted that if the house was let out, it would have fetched Rs.500 per month. 8. The appellant has admitted that if the house was let out, it would have fetched Rs.500 per month. 8. The old man, who has put up the house for sustenance, is living with his younger son in one house and seeks for recovery of possession in reference to the house in question so that he can live in that house. Further, it is seen that the appellant is living in the house with the permission of his father from the year 1976 onwards. The respondent is, therefore, the absolute owner of the suit property, land and building and he is entitled to get vacant possession of the same. The contention of the appellant is that he is a co-owner along with his father and that he has perfected his title by adverse possession. The tax receipts are in the name of the respondent and it shows that he is in possession and enjoyment of the property and therefore, the plea that the appellant had perfected his title by adverse possession cannot be sustained. 9. The appellant, taking advantage of his possession, is trying to defeat the just and valuable right of the respondent, who is his own father, over the property which he has constructed by spending his life earnings. The appellant has no justification either in law or in equity to refuse the relief sought for by the respondent. There is no question of law, much less any substantial question of law arising for consideration in this second appeal. The second appeal fails and is accordingly dismissed. However, there will be no order as to costs. Consequently, the connected C.M.P. is closed.