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2011 DIGILAW 4013 (MAD)

Kaliyan @ Rangaraju v. Jayabal @ Natarajan

2011-09-19

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The unsuccessful defendant in O.S.No.1345 of 2007 on the file of the II Additional District Munsif Court, Pondicherry, is the appellant. 2. The respondent/ plaintiff filed the suit for eviction and for mesne profits. The case of the respondent/ plaintiff was that the suit property belongs to him. In the year 2001 he went to France to stay along with his son and therefore he allowed the appellant who is none other than his brother to look after his business and the appellant was running the business in the suit property. The appellant was let into possession and to manage the business run by the respondent and after the respondent/ plaintiff returned to India the appellant started to act against the interest of the respondent and also refused to hand over possession. Hence, he filed the suit after issuing notice. 3. The appellant admitted the title of the respondent in his reply notice and also expressed his willingness to hand over possession of the suit property within two years and further stated that the said undertaking to vacate was subject to the condition of handing over possession of property by the respondent belonging to the appellant. 4. Both the Courts on the basis of admission by the appellant decreed the suit and hence the Second Appeal. 5. The learned counsel for the appellant submitted that the admission made in the reply notice by the appellant was not unqualified one and it was specifically stated in the reply notice that the appellant shall hand over vacant possession on condition of handing over possession of the appellant's property by the respondent. He therefore submitted that the Courts below erred in acting on the basis of the admission of the appellant in the written statement and the admission ought not to have been taken into consideration as the same was subject to the condition of handing over possession of the appellant's property. He therefore submitted that the respondent is estopped from claiming possession of the property without surrendering the property belonging to the appellant. 6. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, the suit property belongs to the respondent and the appellant did not claim any right of tenancy. Therefore, the suit for recovery of possession is maintainable. 6. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, the suit property belongs to the respondent and the appellant did not claim any right of tenancy. Therefore, the suit for recovery of possession is maintainable. Further, in the reply notice the appellant agreed to vacate and hand over possession within two years and further stated that his offer to vacate was subject to the further condition of handing over possession of the property of the appellant by the respondent. Even assuming that the admission of the appellant to vacate and hand over possession was subject to the condition of handing over possession of the property by the respondent belonging to the appellant, having regard to the fact that the appellant is in possession of the property on the basis of the permission granted by the respondent, he is bound to deliver vacant possession whenever possession is demanded by the respondent. Further, there is no question of estoppel as contended by the learned counsel for the appellant. As per Section 115 of the Evidence Act, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, thereafter, such person shall not be allowed in any suit or proceeding between himself and such other person, to deny the truth of that thing. In this case there was no representation made by the appellant or by the respondent which was believed and acted upon by the other party. It is the case of the appellant that the respondent is in occupation of his property and he failed to hand over possession and therefore he is not bound to hand over possession such argument cannot be accepted and it is always open to the appellant to initiate proceedings against the respondent for recovery of possession of his property which is in the possession of the respondent. As the respondent is the owner of the suit property and the appellant is permitted to be in possession of the suit property, the appellant is bound to deliver possession whenever demanded by the respondent. The respondent by his demand impliedly revoked the licence granted in favour of the appellant. As the respondent is the owner of the suit property and the appellant is permitted to be in possession of the suit property, the appellant is bound to deliver possession whenever demanded by the respondent. The respondent by his demand impliedly revoked the licence granted in favour of the appellant. Hence, I do not find any reason to interfere with the concurrent findings of the Courts below and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 7. In the result, the Judgement and Decree of the Courts below are confirmed and the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is closed.