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2009 DIGILAW 3889 (MAD)

K. Jayaraman v. K. Radhakrishnan & Another

2009-09-29

M.CHOCKALINGAM, R.SUBBIAH

body2009
Judgment :- M. Chockalingam, J. Challenge is made to the judgment of the learned Single Judge made in C.S.No.591 of 2002 whereby a suit filed by the appellant seeking declaration that he is the absolute owner of the suit property along with the consequential injunction restraining the defendants/ respondents from interfering with the peaceful possession and enjoyment of the property was dismissed. 2. The plaintiff sought the relief with the following averments in the plaint. The plaintiff and the defendants are brothers and they are the sons of one Kesavan. The suit related to the house property situated in Door No.1, Virupasheeswaran koil street, Mylapore, Madras. It belonged to the father of the plaintiff. His father settled the suit property in favour of the plaintiff and the defendants on 11. 1960 and the same was subsequently revoked. The defendants were given other properties by his father by executing a Will. The said Will was probated. At the time of probating the Will the defendants have given an undertaking under Ex.P1 document that they would transfer the suit property in favour of the plaintiff. For more than 30 years, the plaintiff has been in possession and enjoyment of the property. He has been paying the property tax and also the electricity charges and there was exchange of notices between the parties. Under such circumstances, there arose a necessity for seeking declaration of the title of the suit property and also for consequential injunction. 3. The defendants remained exparte. On the side of the plaintiff, P.W.1 was examined. The trial Court looked into the available materials and also heard the submissions made by the learned counsel for the plaintiff and finally dismissed the suit. The appeal is the outcome of the said order of dismissal. 4. Advancing the arguments on behalf of the appellant, the learned counsel would submit that the plaintiff/appellant has been in possession of the property for more than 30 years. He has been paying the property tax to the Corporation of Madras and was also paying the electricity charges. Sufficient documentary evidence was adduced by the plaintiff. The plaintiffs father originally executed a settlement deed which was subsequently revoked. Thereafter, he executed a Will and the same was also probated. Certain properties other than the property in question were given to the defendants. Sufficient documentary evidence was adduced by the plaintiff. The plaintiffs father originally executed a settlement deed which was subsequently revoked. Thereafter, he executed a Will and the same was also probated. Certain properties other than the property in question were given to the defendants. Hence, at that time, when the probate proceedings were pending, the defendants executed Ex.P1 document that they would transfer the suit property in favour of the plaintiff but they have not done so. But the plaintiff has been in possession and enjoyment of the property all along for nearly 30 years. The possession was adverse to the interest of the defendants and he is also in continuance and uninterrupted possession. Thus, he has become the owner of the suit property. The learned counsel for the appellant in support of his contention relied on the decision reported in (1907 AC 73 = 95 LT 890 (PC)). Learned counsel would further submit that in the instant case, the plaintiff has been in peaceful possession for a long time without any interruption which was adverse to the interest of the defendants under such circumstances, plaintiff/appellant has perfected title. Hence, it is a fit case for declaration of title in favour of the plaintiff /appellant and also for consequential injunction. 5. The Court paid its anxious consideration on the submissions made and looked into the materials available. The Court is of the considered opinion that nothing is available to disturb the judgment of the trial Court. 6. Even as per the case of the plaintiff, the property in question originally belonged to Kesavan who is father of the plaintiff and the defendants. It is also an admitted position that the said Kesavan originally executed the settlement deed in respect of the property in favour of his sons and thereafter, he revoked the same. It is also averred in the plaint that in respect of the other properties Mr. Kesavan executed a Will in favour of the defendants and the same was also the subject matter of probate proceedings in which the plaintiff was also a party. The plaintiff rests his entire case mainly on Ex.P1 document which reads as follows. "As desired by you we will transfer the property bearing Door No.1, Virupaksheewarer Koil Street, Madras – 4 in your favour after probating out fathers Will in the Court." 7. The plaintiff rests his entire case mainly on Ex.P1 document which reads as follows. "As desired by you we will transfer the property bearing Door No.1, Virupaksheewarer Koil Street, Madras – 4 in your favour after probating out fathers Will in the Court." 7. A very reading of Ex.P1 document would clearly indicate that it was an expression to make transfer of the property. It is an admitted fact that no such transfer was made till date. Apart from this, it is contended by the learned counsel for the appellant that the appellant has been in possession and enjoyment of the suit property for the past 30 years and also paid the property tax and electricity charges and the documents which were relied upon by the plaintiff before the trial Court would indicate that he was in possession for a long period but it cannot speak of the title. Though it is claimed by the appellant that he has been in continuous possession for more than the statutory period and he has perfected title by adverse possession, no plea is made in the plaint. Apart from that, the property originally belonged to the father in which he has been in possession. The intervening circumstances is Ex.P1 document executed by the first defendant. All would indicate that the possession of the plaintiff in the property was only permission and at no point of time it can become adverse to the interest to the owners of the property. Therefore, all would go to show that the plaintiff has not made out case for declaration of title in respect of the suit property. The learned single Judge has rightly rejected the claim made by the plaintiff/appellant. Under such circumstances, nothing is noticed by this Court to interfere with the judgment of the learned single Judge. Hence the appeal fails and the same is dismissed leaving the parties to bear their costs.