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2008 DIGILAW 1724 (MAD)

K. v. Manickam VS Manickam @ Ramasamy

2008-06-12

R.BANUMATHI

body2008
Judgment :- These appeals are preferred against dismissal of plaintiffs suit for declaration of title and possession, and for recovery of arrears of rent. Being aggrieved by reversal Judgment of the First Appellate Court, unsuccessful plaintiffs have preferred these appeals. 2. Plaintiffs have filed suits – O.S.Nos.216, 217, 218/1988 on the file of the District Munsif Court, Sankari against the Defendants for recovery of possession of thatched sheds alleging that the Defendants are Tenants under the plaintiffs and their predecessor-in-title. Since common points are involved in all three appeals, the appeals shall stand disposed of by this common Judgment. 3. Case of the plaintiffs is that first plaintiff Ramayee Ammal was the absolute owner of S.No.527/5 to an extent of 4.23 acres in Chinna Goundanoor Village, Sankari Taluk and the first plaintiff has put up thatched shed in S.No.527/5. Defendants are alleged to have occupied the suit property as Tenants under the first plaintiff on a monthly rent of Rs.100/- and the Defendants have been regularly paying rent to the first plaintiff. Since Defendants committed wilful default in the payment of rent from June 1982, Eviction Petition was filed before the Rent Controller/District Munsif, Tiruchengode against the Defendants. The Defendants denied the title of the plaintiff and contested the eviction proceedings as not maintainable. Since the Defendants have denied title of the first plaintiff, three suits were filed for declaration and possession, and also for arrears of rent. During the pendency of the suit, the first plaintiff sold the suit properties and other properties in favour of one Varadharajan under the Sale Deed – Ex.A-6 dated 25.02.1985. From the said Varadharajan, plaintiffs 2 and 3 have purchased the property under the Sale Deeds dated 310. 1985 and 01.07.1987 and being purchasers pendente lite, plaintiffs 2 and 3 were impleaded as parties to the suit. Stating that the Defendants have no right to be in possession of the property, plaintiffs have filed the suit for declaration of their title, recovery of possession and arrears of rent. 4. Denying landlord-tenant relationship, Defendants have filed Written Statement contending that they have put up a shed in S.No.153 Kaluvankuttai Poromboke in Sankari village and the Defendants sheds have nothing to do with S.No.527/5. Since the Defendants sheds are situated in S.No.153, plaintiffs are not entitled to the said sheds constructed on the Government land and the plaintiffs cannot seek for delivery of possession. 5. Since the Defendants sheds are situated in S.No.153, plaintiffs are not entitled to the said sheds constructed on the Government land and the plaintiffs cannot seek for delivery of possession. 5. On the above pleadings, six issues and three additional issues were framed in the trial Court. After extracting oral evidence in-extenso in three separate Judgments, the trial Court held that the suit property belongs to the plaintiffs and the Defendants are in occupation of the sheds as Tenants. On the basis of evidence of P.W.s 1 and 2, the learned District Munsif held that the huts situated in suit S.No.527/5 belong to the plaintiffs. The trial Court further held that the Defendants are Tenants under the plaintiffs on the basis of oral tenancy Agreement and held that the Government is not a necessary party. Stating that the first plaintiff is aged about 80 years and observing that non examination of the first plaintiff would not in any way affect the plaintiffs case, the trial Court decreed the suit for declaration and delivery of possession. 6. Reversing the findings of the trial Court, the first Appellate Court held that the plaintiffs have produced only exhibits Ex.A-6 to A-8 and that they have not produced any prior document to prove the title of the plaintiffs in S.No.527/5. The first Appellate Court further held that the plaintiffs have not satisfactorily proved their title to S.No.527/5 and that the plaintiffs have not produced either A Settlement or Adangal. Pointing out that no documents were produced by the plaintiffs to show that the plaintiffs have constructed shed, the lower Appellate Court allowed the appeals setting aside the findings of the trial Court. 7. At the time of admitting the second appeals, the following substantial questions of law were framed for consideration :- "1.Whether the lower Appellate Court erred in reversing the well considered Judgment and Decree of the trial Court? 2. Whether the lower Appellate Court is right in holding that the appellants have not proved title in spite of oral and documentary evidence showing title in favour of the appellants 1 and 2? 3. Whether the lower Appellate Court erred in holding that there is no landlord-tenant relationship particularly when there is allegation in additional Written Statement that Sec.106 of the Transfer of Property Act is not complied with by the appellants 1 and 2?" 8. 3. Whether the lower Appellate Court erred in holding that there is no landlord-tenant relationship particularly when there is allegation in additional Written Statement that Sec.106 of the Transfer of Property Act is not complied with by the appellants 1 and 2?" 8. Challenging the impugned Judgment of the lower Appellate Court, the learned Counsel for the appellants/plaintiffs submitted that the lower Appellate Court failed to appreciate the oral and documentary evidence. Drawing the attention of the Court to Exs.A-6 to A-8, the learned Counsel further submitted that though plaintiffs have produced the documents of title, the lower Appellate Court has not analysed them in proper perspective and erred in finding that the plaintiffs have not proved their title to the suit sheds. Laying emphasis upon the evidence of P.W.s 2 and 3, the learned Counsel would submit that the lower Appellate Court failed to appreciate the evidence of PW-3, which is to the effect that all seven sheds are in S.No.527/5. 9. Countering the arguments, the learned Counsel for the respondents-Defendants Mr.N.Manokaran would submit that burden of proof was cast upon the plaintiffs to prove when the Defendants have taken a specific plea that the suit sheds are in S.No.153 and the plaintiffs have not discharged such burden. Submitting that the plaintiffs have purchased the property after the litigation has begun, the learned Counsel further contended that excepting the Sale Deeds pendente lite and the ipse dixit version of the first plaintiff no other prior documents have been filed to prove the title of the plaintiffs. The learned Counsel further submitted that the factual findings arrived at by the First Appellate Court cannot be re-agitated in Second appeal and no substantial question of law is involved in these second appeals. 10. Case of the plaintiffs is that all three sheds are situated in S.No.527/5 – 4.23 acres of Chinna Goundanur village. The Defendants deny the sheds being located in S.No.527/5. According to the Defendants, the sheds are situated in S.No.153 of Kaluvankuttai Government lands. 11. When the Defendants have denied the title of the plaintiffs, in a suit for declaration of recovery of possession, plaintiffs must show better right in themselves than is in the Defendant. A person in possession of the property is normally presumed to be in lawful possession until the contrary is shown. 11. When the Defendants have denied the title of the plaintiffs, in a suit for declaration of recovery of possession, plaintiffs must show better right in themselves than is in the Defendant. A person in possession of the property is normally presumed to be in lawful possession until the contrary is shown. When the Defendants are stated to be in possession of the suit sheds even prior to the Sale Deeds in favour of the plaintiffs, onus lies heavily upon the plaintiffs to prove that they are the owners of the suit property and that the Defendants are their Tenants. 12. First plaintiff had already filed eviction petition in R.C.O.P.Nos.2, 5, 6/1983 for eviction on the ground of wilful default. As the Defendants have denied landlord-Tenant relationship and title of the plaintiffs in the suit sheds, in 1984, the first plaintiff has filed the suits for declaration and recovery of possession. After filing of suits, first plaintiff has sold the property to one Varadharajan under Ex.A-6 Sale Deed [25.02.1985]. The said Varadarajan had sold the suit property to the plaintiffs 2 and 3 under two different Sale Deeds Exs.A-7 to A-8 dated 310. 1985 and 01.07.1987, respectively. As rightly held by the lower Appellate Court, excepting the Sale Deed pendente lite, plaintiffs have not produced prior documents to show the existence of the sheds in S.No.527/5 and the landlord-tenant relationship between the first plaintiff and the Defendants. 13. To show the location of S.No.527/5, plaintiffs have produced Ex.A-5 – FMB. As pointed out by the lower Appellate Court, Ex.A-5 – FMB plan cannot be relied upon as it does not contain seal of the Tahsildar office. 14. The learned Counsel for the appellants laid much emphasis upon the evidence of PW-3 – Village Administrative Officer of Chinna Goundanoor Village, who has deposed that A Register for S.No.527/5 stands in the name of the plaintiffs and that he has verified the survey stones and on such verification, noted seven huts being situated within S.No.527/5. Evidence of PW-3 – Village Administrative Officer is not supported by any authenticated document. PW-3 himself has not produced any document in support of his evidence. Plaintiffs have also not produced adangal or other documents showing the existence of seven huts in S.No.527/5 and that they are the lawful owners of the same. 15. Evidence of PW-3 – Village Administrative Officer is not supported by any authenticated document. PW-3 himself has not produced any document in support of his evidence. Plaintiffs have also not produced adangal or other documents showing the existence of seven huts in S.No.527/5 and that they are the lawful owners of the same. 15. In their evidence, the Defendants have stated that they have put up construction in S.No.153 of Kaluvankuttai Poromboke and the shed has nothing to do with the said S.No.527/5. In the light of oral evidence adduced by the Defendants, plaintiffs ought to have examined the first plaintiff to show that the first plaintiff has constructed the sheds and let out the same to the Defendants. The conclusion of the lower Appellate Court that the plaintiffs have miserably failed to prove the construction of the sheds and letting out of the same to the Defendants is a finding of fact and the same cannot be interfered with. 16. The plaintiffs having purchased the property pendente lite in Exs.A-7 and A-8 by the Sale Deeds dated 310. 1985 and 01.07.1987, have not chosen to adduce the best evidence. The plaintiffs have neither produced prior title deeds nor have chosen to take the Commissioner to adduce the best attainable evidence, showing the location of the sheds. On the basis of such slender evidence, plaintiffs cannot succeed in the suit for declaration of title and recovery of possession. 17. It is well settled that the High Court while considering the matter in exercise of its jurisdiction in Second Appeal would not reverse the finding of fact, as recorded by the Courts below. While exercising discretion under Section 100 CPC, High Court cannot reverse the finding of the lower Appellate Court on facts. Unless the findings are shown to be perverse or based on no evidence. There is no such perversity or serious error committed by the lower Appellate Court warranting interference. 18. The Judgment and Decree of the lower Appellate Court in A.S.Nos.11, 34, 12/1992 (arising out of the Judgment and Decree dated 312. 1991 and made in O.S.Nos.216, 217, 218/1988 on the file of the District Munsif Court, Sankari) are confirmed and these second appeals are dismissed. Consequently C.M.P.Nos.7488 to 7490/1996 are also dismissed. There is no order as to costs.