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2008 DIGILAW 1699 (MAD)

R. Rajeswari v. Sabapathy

2008-06-11

R.BANUMATHI

body2008
Judgment :- Being aggrieved by the concurrent Judgments of the Courts below, dismissing the plaintiff suit O.S.No.445/1976, unsuccessful plaintiffs have preferred this second appeal. 2. The first plaintiff Rajeswari, Defendant - Sabapathy and one Sivapunniyam, Vaithilingam are the daughter and sons of Thirupurammal @ Samburnam (PW-2) and Ramalingam. Plaintiffs 2 and 3 are the sons of Vaithilingam. The suit property (green marked portion in the suit plaint) is one room, west to main entrance in the House No.142 Ambalathadayarmadam Street, Pondicherry. The said entire house measuring 29 x 60 was purchased by notarial Sale Deed dated 011. 1943 (Ex.A-3) by Thiruburammal @ Samburnam. The property was settled by Thiruburammal in favour of the first plaintiff Rajeswari by registered Settlement Deed Ex.A-5 dated 28.06.1975. By Settlement Deed Ex.A-9, dated 7. 1975, first plaintiff Rajeswari settled in favour of her minor nephews Ramalingam and Gajapathy (plaintiffs 2 and 3), a portion of 15 x 60 in the said house. 3. Case of the plaintiffs is that plaint green marked room was leased out to Mahabalkumar by Thirupurammal and mother of first plaintiff, by written deed Ex.A-3 dated 05.04.1975 and that the same was kept under lock and key by the Tenant. Plaintiff has alleged that the Defendant broke open the door and trespassed into the property on 26. 1975 and therefore, the plaintiff has filed the suit for vacant possession of the suit property marked Green in the suit plaint and to direct the Defendants to pay a sum of Rs.1,050/- as damages for illegal occupation from 26. 1975 till 37. 1976. 4. Defendant resisted the suit contending that he is in occupation of the suit house as a co-sharer since his father purchased the house in the name of mother Thirupurammal and his mother Thirupurammal has no right to convey/ settle it in favour of the first plaintiff. The Defendant has further alleged that he and his brother Sivapunniam have contributed Rs.30,000/- for the reconstruction of the house which got dilapidated partly and therefore, he is not bound to deliver possession. 5. On the above pleadings, four issues were framed by the trial Court. Upon consideration of oral and documentary evidence, the trial Court held that the relationship between the plaintiff and the Defendant is something more than landlord and Tenant and the question of right of Defendant in the suit property cannot be gone into in the suit. 5. On the above pleadings, four issues were framed by the trial Court. Upon consideration of oral and documentary evidence, the trial Court held that the relationship between the plaintiff and the Defendant is something more than landlord and Tenant and the question of right of Defendant in the suit property cannot be gone into in the suit. On the second issue, the trial Court has held that the trespass by the Defendant has not been proved. Therefore, the question of the plaintiff getting vacant possession of the suit property from the Defendant and getting mesne profit does not arise and on those findings, dismissed the suit. 6. Confirming the Judgment of the trial Court, the lower Appellate Court dismissed the appeal A.S.No.97/1980 preferred by the plaintiffs. As against the concurrent Judgment, plaintiffs have filed this second appeal. 7. At the time when the second appeal was admitted, the following substantial questions of law were formulated for consideration:- "1.Whether the Court below is right in holding that the French Law and Art.1402 of the Code of Civil are not applicable in this case? 2. Whether the Court below is right in holding that the said Tirupurammal is a benamidar for her husband Ramalingam Chettiar? 3. Whether the Court below is right in holding that the sale consideration under Ex.A-2 dated 011. 1943 did not flow from Tirupurammal in the absence of any independent evidence in that behalf? 4. Whether the Court below is right in rejecting the contention of the appellants that the respondent is liable to be ejected from the schedule premises ?" 8. Heard the learned Counsel for the appellants and the respondents. In respect of North Western portion, comprising of ground floor and first floor, plaintiffs have filed two suits O.S.No.778/1975 [against Defendant Sivapunniam] and O.S.No.760/1975 [against Defendant Sabapathy] for delivery of possession. In those suits also, plaintiffs traced their title to the Settlement Deed executed by Thirupurammal in favour of the first plaintiff. Those suits were dismissed by the trial Court on the basis that French Code Civil will apply to the facts of the case and so under Art. 1402 of the Code Civil, all immovables are assumed to be purchased by the communate. The burden of proof that the property is exclusively belonging to the said Thirupurammal is upon her, which has not been established. The burden of proof that the property is exclusively belonging to the said Thirupurammal is upon her, which has not been established. On that basis, the trial Court rejected the plaintiffs claim that the plaintiffs cannot claim any exclusive right in the property and the Defendants in the respective suits were given impression that they are entitled to the property and so, the plaintiffs are not entitled to recover the property. On appeal by the plaintiffs in A.S.No.99/1980 and A.S.No.100/1980, the lower Appellate Court found that the French Code Civil will not apply to the facts of the case, only the provisions of the Hindu Law will apply. The lower Appellate Court also ultimately found that the Defendants reconstructed the house in 1968 and so, the plaintiffs cannot sustain the suit for recovery of possession. 9. Against those findings, the plaintiffs have filed S.A.Nos.2067/1985 and 211/1986. Observing that the lower Appellate Court has not gone into the question whether the Defendant has established whether the property purchased by their father in the name of their mother and without deciding the question, the lower Appellate Court has simply confirmed the Judgment and Decree of the trial Court, by the order dated 02.01.2001, Justice K.Govindarajan allowed the second appeals setting aside the Judgment and Decree of the lower Appellate Court and remanded the matter back to the lower Appellate Court for consideration of the matter afresh on merits on the basis of the pleadings and the evidence. It is stated that after remand, the lower Court has considered the matter afresh and has render the Judgment. Challenging the same, two second appeals are said to have been preferred in S.A.Nos.58/2003 and 1698/2002 and the same are said to be pending. 10. When the second appeal was heard, both the counsel have submitted that on the lines of the observations in the Judgment of S.A.Nos.2067/1985 and 211/1986, the matter has to be considered afresh and therefore, the matter has to be remitted back to the lower Appellate Court. The trial Court has simply observed that the relationship between the plaintiffs and the Defendants is more than that of landlord and Tenant and has not further gone into the question. The lower Appellate Court has also simply confirmed the Judgment and Decree of the trial Court merely on the basis that the Defendant is in possession of the property. The trial Court has simply observed that the relationship between the plaintiffs and the Defendants is more than that of landlord and Tenant and has not further gone into the question. The lower Appellate Court has also simply confirmed the Judgment and Decree of the trial Court merely on the basis that the Defendant is in possession of the property. Following the observations in the connected S.A.Nos.2067/1985 and 211/1986, the Judgment of the lower Appellate Court is to be set aside and the matter is to be remitted back to the lower Appellate Court for consideration of the matter afresh. 11. Accordingly, the matter is remitted back to the lower Appellate Court for fresh consideration. The lower Appellate Court is directed to consider the matter afresh on merits on the basis of pleadings and in the light of observations of the High Court in S.A.NOs.2067/1985 and 211/1986 dated 02.01.2001 and evidence and after affording sufficient opportunity to both parties. The lower Appellate Court is further directed to dispose of the appeal preferably within a period of six months. 12. The second appeals are disposed of accordingly. No costs.