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2010 DIGILAW 3339 (MAD)

C. Jagadeesan v. Annammal

2010-08-04

M.JAICHANDREN

body2010
Judgment :- 1. This second appeal has been filed against the judgment and decree, dated 9.8.2006, made in A.S.No.90 of 2005, on the file of the Subordinate Court, Ranipet, confirming the judgment and decree of the trial Court, dated 29.11.2004, made in O.S.No.198 of 1994, on the file of the District Munsif Court, Sholinghur. 2. The defendant in the suit, in O.S.No.198 of 1994, is the appellant in the present second appeal. The plaintiff in the said suit is the respondent herein. 3. The suit, in O.S.No.198 of 1994 had been filed on the file of the District Munsif Court, Sholinghur, praying for a decree declaring the plaintiffs right and title to the plaint schedule property, marked as `BHGE in the plaint plan, and for a direction to the defendant to deliver possession of the said property to the plaintiff, and for a mandatory injunction directing the defendant to demolish the thatched house in the said property, and for a permanent injunction restraining the defendant, his men, agents and servants from interfering, in any manner, with the plaintiffs peaceful possession and enjoyment of the plaint schedule property, marked as `CDFGE and AHGF portions in the plaint plan, and for costs. 4. In the plaint filed in the suit, in O.S.No.198 of 1994, it has been stated that the plaint schedule property belonged to Venkatapathi Naidu of Thandalam Village. He had sold the property, marked as `ABCD in the plaint plan, in favour of the plaintiff, as per the registered sale deed, dated 25.11.1961, as a vacant land and that the plaintiff has been in possession and enjoyment of the property, since then. It had also been stated that the plaintiff had constructed a thatched house and she has been enjoying the backyard marked as `CDFGE’ portion and `AHGF portion, marked in the plaint plan, in her own right, continuously, for more than the statutory period. Thus, she had perfected her right and title, in respect of the said property, by adverse possession. The thatched house put up by the plaintiff stands registered in the name of the plaintiffs husband, Muniyandi, and that the plaintiff has been enjoying the property, along with her husband by paying house tax for the same. 5. The plaintiff had further submitted that the defendant has no right title or interest in the said property. The thatched house put up by the plaintiff stands registered in the name of the plaintiffs husband, Muniyandi, and that the plaintiff has been enjoying the property, along with her husband by paying house tax for the same. 5. The plaintiff had further submitted that the defendant has no right title or interest in the said property. It has also been stated that, while so, the defendant had requested the plaintiff and her husband to permit him to have a thatched house put up in the property in question, for residential purpose, during the month of February, 1986. Accordingly, the plaintiff had permitted the defendant to enjoy a portion of the property on the understanding that he should vacate the said property and hand over vacant possession of the same to the plaintiff, as and when a demand was made by the plaintiff. Since, the defendant had refused to hand over vacant possession to the plaintiff, even though the defendant was asked to do so, the plaintiff had filed the suit, in O.S.No.198 of 1994, on the file of the District Munsif Court, Sholinghur. 6. In the written statement filed on behalf of the defendant, it has been stated that the location of the suit disputed property has not been properly described by the plaintiff in the plaint and in the plaint plan. The suit is bad for non-joinder of necessary party, and for misjoinder of party in the suit. It has also been stated that the suit has been filed with the mala fide intention of harassing the defendant. It has been claimed that the property in question is a joint family property of the defendant, his brothers and his mother. Electricity service connection, in S.C.No.274, had also been given to the suit property. The necessary house tax has also been paid. 7. The claim of the plaintiff that the suit house, said to have been built in `CDFGE portion of the property, is also false. The claim of the plaintiff that the defendant had been permitted to put up a thatched house in a portion of the suit property, as a permissive occupier, is also false. 7. The claim of the plaintiff that the suit house, said to have been built in `CDFGE portion of the property, is also false. The claim of the plaintiff that the defendant had been permitted to put up a thatched house in a portion of the suit property, as a permissive occupier, is also false. When the defendant and the other members of his family and their predecessors have been in possession and enjoyment of the `ABEF portion of the suit property, the claim of the plaintiff, that the defendant is a permissive occupier, cannot be held to be true. As such, the suit filed by the plaintiff is liable to be dismissed, as it is devoid of merits. 8. In view of the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues or consideration: "1. Whether the plaintiff is entitled for the relief of declaratory relief as claimed for? 2. Whether the plaintiff is entitled for the possession of the suit property? 3. Whether the plaintiff is entitled for mandatory injunction as claimed for? 4. Whether the plaintiff is entitled for permanent injunction as claimed for? 5. It is true to say that plaintiff offered permissive occupation to the defendant in respect of suit blue marked portion (BWGE) 6. Is it true to say that the defendant on and from 1.8.94 refused to deliver suit property to plaintiff? 7. Whether the suit property is properly described? 8. Whether the suit suffer from non joinder of necessary parties? 9. Whether the suit is bad for misjoinder of parties? 10. Whether the suit is properly valued? 11. Whether the Court fee paid is correct? 12. Whether the suit property belonged to the defendant as in possession from ancestors as joint family property? 13. Whether the suit is barred by limitation? 14. What are the relief available to the parties to the suit?" 9. An additional issue had also been framed, on 28.4.2004, for the consideration of the trial Court. "Whether the AHGH portion of the suit property belongs to the plaintiff, if so is the plaintiff entitled to the relief of possession in respect of the suit property?" 10. Two witnesses had been examined on behalf of the plaintiff, as P.W.1 and P.W.2, and two documents had been marked, as Exs.A.1 and A.2, in her favour. "Whether the AHGH portion of the suit property belongs to the plaintiff, if so is the plaintiff entitled to the relief of possession in respect of the suit property?" 10. Two witnesses had been examined on behalf of the plaintiff, as P.W.1 and P.W.2, and two documents had been marked, as Exs.A.1 and A.2, in her favour. Four witnesses had been examined on behalf of the respondent, as D.W.1 to D.W.4. 76 documents had been marked on his behalf, as Exs.B-1 to B-76. 11. The trial Court had decreed the suit, as prayed for by the plaintiff in the suit, in O.S.No.198 of 1994, as it had found that the plaintiff was the owner of the suit property, based on the sale deed, dated 25.11.1961, marked as Ex.A-1. From Ex.A-1 it had been noted that the property in question had been sold by one Venkatapathi Naidu, in favour of the plaintiff. It had also been found that the said fact had been confirmed by the evidence adduced by P.W.2. The trial Court had also found that the claim of the defendant that he had perfected his title, in respect of the suit property, by way of adverse possession, had not been substantiated by sufficient evidence. It had also been found that the defendant had not furnished the necessary particulars as to when the cause of action for his claim had arisen and as to how he had come into possession of the suit property. 12. It had also been found that, the defendant had claimed title to the suit property stating that the said property had belonged to his grand father Ellappan. As such the trial Court had found that the defendant had not accepted the title of the plaintiff, in respect of the suit property and therefore, he was not entitled to claim any right or title in the suit property, by way of adverse possession. The trial Court had also found that the documents filed on behalf of the defendant, including the receipts marked on behalf of the defendant, did not relate to his title in respect of the suit property. 13. It had also been found that Ex.B-18 relates to the year, 1989-1990, and the defendant has claimed that he has been in possession and enjoyment of the property in question, from the year, 1989. 13. It had also been found that Ex.B-18 relates to the year, 1989-1990, and the defendant has claimed that he has been in possession and enjoyment of the property in question, from the year, 1989. However, it has been found that the electricity connection in the suit property had been obtained only in the year, 1993, and that the suit had been filed in the year, 1994. The trial Court had noted that Exs.B-17 and B-18 are house tax receipts in the name of the defendant and the defendants father. Further, Ex.B-18 was found to be relating to the year, 1989. Ex.B-24 was found to be the electricity meter reading card. Exs.B-26 to B-73 were the receipts relating to the payment of the electricity charges. Thus, it was found that the defendant had obtained the electricity service connection to his residential premises, only in the year, 1993, and that the suit had been filed in the year, 1994. 14. In view of the evidence available on record, the trial Court had found that the claims made by the plaintiff in the suit, in O.S.No.198 of 1994, are sustainable and that the averments made and the contentions raised on behalf of the defendant in the suit, cannot be said to be acceptable. In such circumstances, the trial Court had decreed the suit in favour of the plaintiff, by its judgment and decree, dated 29.11.2004, made in O.S.No.198 of 1994. 15. Aggrieved by the judgment and decree of the trial Court, the defendant in the suit had filed an appeal, in A.S.No.90 of 2005, on the file of the Subordinate Court, Ranipet. The First Appellate Court had framed the following points for consideration: "1) Whether the judgment and decree, dated 29.11.2004, made in O.S.No.198 of 1994, on the file of the District Munsif Court, Sholinghur, is to be set aside, as prayed for by the appellant/defendant in the appeal? 2) What other relief the appellant/defendant is entitled to?" 16. In view of the averments made on behalf of the appellant, as well as the respondent in the first appeal and in view of the evidence available on record, the First Appellate Court had confirmed the judgment and decree of the trial Court, dated 29.11.2004. 17. 2) What other relief the appellant/defendant is entitled to?" 16. In view of the averments made on behalf of the appellant, as well as the respondent in the first appeal and in view of the evidence available on record, the First Appellate Court had confirmed the judgment and decree of the trial Court, dated 29.11.2004. 17. Aggrieved by the judgment and decree of the First Appellate Court, dated 9.8.2006, the appellant in the first appeal, in A.S.No.90 of 2005, who was the defendant in the suit, in O.S.No.198 of 1994, has preferred the present second appeal before this Court, raising the following questions, as substantial questions of law. "1) In the absence of proof of permissive occupation whether the Courts below are justified in declaring the right of the plaintiff? 2) Whether Ex.A.1 could perse confer title upon the plainitff in the absence of proof of title of her vendor? 3) When the plaintiff had failed to establish the identity of the suit property, whether the suit for mandatory injunction based on permissive occupation could be decreed? 4) Whether the suit as framed is maintainable in law? 5) When the defendant had established that his occupation for over 75 years and factum of the structure raised on the property is admitted by the plaintiff, whether the Courts below are justified in decreeing the suit for possession? 6) Whether the Courts below are right in not holding that continuous occupation of the defendant and his predecessors in title could fructify into the title in the absence of proof of permissive occupation? 7) Whether the continuous, hostile and independent possession of the defendant would not prescribe him a title on the principles of adverse possession?" 18. The learned counsel appearing on behalf the appellant had submitted that the judgment and decree of the Courts below, in decreeing the suit for mandatory injunction, are erroneous and invalid in the eye of law. The Courts below ought to have seen that it was the duty of the plaintiff in the suit, who is the respondent in the second appeal, to have established her title, in respect of the suit property and that the appellant was only a permissive occupant therein. Since, the plaintiff/respondent had failed to establish the same, the suit ought to have been dismissed by the Courts below. Since, the plaintiff/respondent had failed to establish the same, the suit ought to have been dismissed by the Courts below. The trial Court, as well as the First Appellate Court, ought to have held that the defendant/appellant has been in possession and enjoyment of the suit property, for a long period of time and that he had prescribed title in respect of the suit property, by way of adverse possession. 19. The Courts below had failed to, properly, appreciate the evidence adduced on behalf of the defendant, both oral, as well as documentary, before rejecting the claims made by the appellant. The Courts below had erred in relying on Ex.A-1 sale deed, dated 25.11.1961, to come to the conclusion that the respondent is the owner of the suit property. The Courts below had failed to consider the admission of P.W.1, regarding the existence of the defendant’s house, at the time of the purchase of the property in question. As such, the Courts below ought to have dismissed the suit filed by the plaintiff/respondent, in O.S.No.198 of 1994. 20. Per contra, the learned counsel appearing on behalf of the respondent in the second appeal had submitted that the Courts below had arrived at their conclusions, correctly, based on the evidence available on record. It cannot be said that the Courts below had not appreciated the evidence adduced on behalf of the appellant, in its proper perspective. The trial Court, as well as the First Appellate Court, had rightly found that the respondent had obtained title, in respect of the suit property, by way of Ex.A-1 sale deed, dated 25.11.1961, which has not been disputed by the appellant. 21. Further, the validity of the said sale deed had been confirmed by the evidence of P.W.2, the son of the vendor concerned. The appellant, who was the defendant in the suit, in O.S.No.198 of 1994, had sought the permission of the respondent to put up a thatched structure to reside therein, in 2 ½ cents, out of the total of nine cents in the property belonging to the respondent. The respondent had granted oral permission to the appellant to put up the thatched structure, subject to the condition that the appellant should vacate and hand over possession of the said property, whenever the respondent had requested for the same. 22. The respondent had granted oral permission to the appellant to put up the thatched structure, subject to the condition that the appellant should vacate and hand over possession of the said property, whenever the respondent had requested for the same. 22. It had also been stated that, even though the appellant had claimed certain rights in the property in question, by way of inheritance from his grandfather, Ellappan, no evidence had been adduced in support of such a claim. Further, during the oral evidence adduced by D.W.1, he had claimed that he had title, in respect of the suit property, by way of adverse possession. Even though the appellant had claimed his rights only in respect of the portion of the property belonging to the respondent, there was no village records available in support of his claim. In fact, the records had shown that the suit property was in the name of one Srinivas, who was P.W.2, from whose father the respondent had purchased the suit property. 23. The Courts below had also taken into account the Court documents, marked as Exs.C.1 and C.2, to arrive at their conclusions in favour of the respondent. It had also been found that sufficient particulars had not been produced by the appellant in support of his claim that he had prescribed title in respect of the suit property, by adverse possession. Since, the claims made by the appellant were contradictory in nature and as he had not produced sufficient evidence to substantiate his claims, both the Courts below were right in rejecting the claims made by the appellant. It had also been submitted that no substantial question of law arises for the consideration of this Court, in the present second appeal. 24. In view of the submissions made by the learned counsels appearing on behalf of the appellant, as well as the respondent, and in view of the records available, this Court is of the considered view that the appellant has not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. Both the Courts below have arrived at the right conclusions, based on the evidence available on record. It cannot be said that the trial Court, as well as the First Appellate Court, had failed to appreciate the evidence adduced on behalf of the appellant, in its proper perspective. 25. Both the Courts below have arrived at the right conclusions, based on the evidence available on record. It cannot be said that the trial Court, as well as the First Appellate Court, had failed to appreciate the evidence adduced on behalf of the appellant, in its proper perspective. 25. It is seen that the trial Court, as well as the First Appellate Court, had rightly relied on Ex.A-1 sale deed, dated 25.11.1961, and the evidence of P.W.2, to arrive at the conclusion that the respondent herein, who was the plaintiff in the suit, in O.S.No.198 of 1994, is having the title in respect of the suit property. Even though the appellant had claimed that he had inherited the suit property from his grand father, Ellappan, there was no evidence adduced on behalf of the appellant in support of his contention. Further, the appellant had not been in a position to substantiate his claim that he had prescribed title in respect of the suit property, by way of adverse possession. The Courts below had rightly found that the evidence adduced on behalf of the appellant, by way of Exs.B-1 to B-76, were insufficient to support the claims made by the appellant. 26. It is also seen that the appellant had not disputed the sale deed, dated 25.11.1961, marked as Ex.A-1, executed in favour of the respondent. Further, P.W.2, the son of the vendor of the suit property had also confirmed the said sale deed. From the evidence adduced on behalf of the respondent, the Courts below had come to the conclusion that the respondent had valid title in respect of the suit property, and that the claims made by the appellant were not sustainable in the eye of law. It was further found that the appellant had not been in a position to prove that the property in question was in his possession and enjoyment for a sufficiently long period of time, for his possession to be recognized to be adverse to the interest of its actual owner, as provided under the relevant provisions of law. The Courts below had also noted that the village records relating to the property in question did not contain the name of the appellant. In such circumstances, the contentions raised on behalf of the appellant cannot be countenanced. The Courts below had also noted that the village records relating to the property in question did not contain the name of the appellant. In such circumstances, the contentions raised on behalf of the appellant cannot be countenanced. As such, the present second appeal is devoid of merits and therefore, it is liable to be dismissed. Hence, it is dismissed. No costs.