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2012 DIGILAW 196 (MAD)

Pachaiammal v. Mangalakshmi Ammal

2012-01-10

T.RAJA

body2012
Judgment :- 1. The respondent herein filed a suit in O.S. No.678 of 1988 on the file of the Additional District Munsif, Vellore - North Arcot District, as against her daughter and son-in-law, who are the appellants herein, with a prayer for declaration of title and recovery of possession of the suit property on the ground that the appellants herein/defendants requested the respondent/plaintiff to provide them with accommodation, whereupon, she permitted them to occupy the two rooms in the front portion of the suit property on payment of Rs.50/- as monthly rent, and since the defendants committed default in payment of rent, she asked them to vacate the portions occupied by them, however, the defendants declined to vacate; hence, the suit. The said suit was contested by the defendants on the ground that they are not tenants as alleged by the plaintiff and that, since they put up the superstructure on the suit land based on the right they have over the same, there is no question of any tenancy or permissive possession; therefore, the suit is liable to be rejected. 2. The learned District Munsif, by Judgment and decree, dated 21.10.1992, decreed the suit and, aggrieved by such verdict, the defendants went on appeal by filing A.S. No.23 of 1993 on the file of the Principal District Judge, Vellore, and the learned first appellate Judge also, concurring with the findings of the trial court, dismissed the appeal. The said concurrent judgments of the courts below are challenged in this Second Appeal. 3. At the time of admission, this Court formulated the following substantial questions of law for consideration: a) Whether the courts below are correct in finding that the defendants are in possession of the property only as permissive occupants without considering the case of the defendants that they only put up the thatched shed in the suit property? b) Whether the courts below are correct in decreeing the suit without considering the documents and evidence by the defendants to prove their case? c) In the facts and circumstances of the case, whether the suit can be maintained before the Civil Court and it is maintainable in law? 4. b) Whether the courts below are correct in decreeing the suit without considering the documents and evidence by the defendants to prove their case? c) In the facts and circumstances of the case, whether the suit can be maintained before the Civil Court and it is maintainable in law? 4. Learned counsel for the appellant has submitted that the defendants/appellants herein, with their own expenses, had put up the thatched shed over the land in their possession and, in that regard, the plaintiff herself, while being examined as PW-1 deposed that only on her permission, the defendants were put in possession, however, those core and vital aspects have been totally lost sight of by the trial court and, in the same perspective, the lower appellate court also completely misdirected itself in concurring with the judgment of the trial court; hence, the said verdicts are liable to be interfered with. 5. From a careful reading of the judgments of the courts below, it is seen that DW-5, who is the 2nd defendant and the son-in-law of the plaintiff, while deposing to the effect that, in the front portion of the site/suit property, himself and his wife, the 1st defendant, are residing, had categorically admitted that the vacant site belongs to the plaintiff. Further, from the evidence of PW-1/plaintiff and also DW-4, a witness examined on the side of the defendants, it was categorically found by the courts below that there is no veracity in the claim of the appellants that the superstructure was put up with their own expenses. In this regard, the courts below further adverted to the evidence of DW-4 to the effect that it was the plaintiff's husband, who had paid the money for putting up the superstructure. Based on such strong evidence available against the claim and case of the defendants, both the courts below rightly recorded the finding to hold that the defendants have no right whatsoever over the suit property and ultimately, dismissed the case of the defendants. Thus, the question of law regarding permissive occupation is answered against the appellants. Further, based on the clear findings recorded by the courts below and having regard to the close relationship of the appellant with R-1 & R-2 as mother and daughter & mother-in-law and son-in-law respectively, this Court finds no justification regarding the objection raised for maintainability of the suit before the civil court. Further, based on the clear findings recorded by the courts below and having regard to the close relationship of the appellant with R-1 & R-2 as mother and daughter & mother-in-law and son-in-law respectively, this Court finds no justification regarding the objection raised for maintainability of the suit before the civil court. Therefore, in my view, the other two questions of law do not even arise for consideration at all. Consequently, the Second Appeal fails and it is dismissed. No costs.