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2014 DIGILAW 2436 (MAD)

K. Selvaraj v. K. Devaraj

2014-08-06

T.RAJA

body2014
JUDGMENT T. RAJA, J. 1. The present second appeal has been directed against the concurrent findings of both the Courts below. 2. The unsuccessful defendant in O.S. No. 410 of 2006, who has also filed a suit for bare injunction in O.S. No. 2030 of 2005, which was subsequently re-numbered as O.S. No. 340 of 2009, after losing the civil suit to his brother and his daughters, the respondents/ plaintiffs herein seeking delivery of vacant possession of the suit property and for damages for wrongful use and occupation of the suit property by the appellant/defendant on a joint trial, has brought this second appeal challenging the impugned judgments and decrees of both the Courts below. 3. Learned counsel for the appellant submitted that when the appellant and the first respondent, both being brothers, were running a partnership business under the brand ''Krithi Industries'' the suit property along with various other properties were acquired by them jointly out of the funds gained from the partnership business. However, after the difference of opinion and the dispute emanated from the rift between the brothers, the appellant herein was constrained to file a civil suit for bare injunction against the first respondent herein unable to face the disruption caused by him. Only after filing of the suit for bare injunction by the appellant in O.S. No. 2030 of 2005, which was subsequently re-numbered as O.S. No. 340 of 2009, the appellant's brother filed the civil suit in O.S. No. 410 of 2006 along with his daughters seeking delivery of vacant possession and damages for wrongful use and occupation of the suit property. Since both the suits were relating to the same suit property, the trial Court tried both the suits together, disagreeing with the case of the appellant that the suit property was purchased by using the joint income gained from the partnership business, wrongly gave a finding even on the title of the suit property in favour of the respondents, by holding that the suit property was purchased in the name of the first respondent's wife Mrs. Vijayalakshmi on 30.5.1984. Even after the demise of the said Mrs. Vijayalakshmi on 30.5.1984. Even after the demise of the said Mrs. Vijayalakshmi in the year 1987, her husband, the first respondent had paid the kist and other charges to the Government, on this basis, it was further held that the appellant cannot make any lawful resistance to the first respondent's claim of ownership in the suit property. 4. Adding further, the learned counsel for the appellant submitted that when the first respondent filed the suit in O.S. No. 410 of 2006 for delivery of vacant possession and damages for wrongful use and occupation of the suit property from the appellant, the trial Court should have fixed the complete burden on the respondents to prove the title and ownership of the suit property. But the trial Court, he pleaded, only taking a stand that there was no evidence produced by the appellant to show that the money from the partnership business was utilised for the purchase of the suit property and that the documents marked as Exs.B1 and B2, the tax receipts, which also stand in the name of the wife of the first respondent, wrongly held that the appellant failed to establish his right over the suit property. The first appellate Court also erred in confirming the judgment of the trial Court. On this basis, he prayed for interference with the impugned judgments and decrees of both the Courts below. 5. In reply, the learned counsel for the respondents submitted that originally the suit property having an extent of 1.00 acre of punja land was purchased by way of a registered sale deed dated 30.5.1984 for Rs. 20,000/- from one Mr. C. Ramasamy, S/o Chinnathambi Gounder in the name of Mrs. Vijayalakshmi, the wife of the first respondent herein. From the date of purchase of the suit property under the registered sale deed dated 30.5.1984, Mrs. Vijayalakshmi was in possession and enjoyment of the same. But, unfortunately, she died intestate on 19.10.1987 leaving behind her husband, the first respondent and her two daughters, the respondents 2 & 3 as the legal heirs. Thereafter, in the year 1989, Mr. K. Devaraj, the husband of Mrs. Vijayalakshmi, the first respondent herein had put up AC sheet roof building by using 4590 sq. ft. with a bathroom measuring 88 sq. ft. Since the first respondent, the appellant and their sister's son Mr. Thereafter, in the year 1989, Mr. K. Devaraj, the husband of Mrs. Vijayalakshmi, the first respondent herein had put up AC sheet roof building by using 4590 sq. ft. with a bathroom measuring 88 sq. ft. Since the first respondent, the appellant and their sister's son Mr. V. Rajeshkumar started a partnership business under the name and style of ''Keerthi Radiators'' in December, 1987, subsequently, in April, 1998, the appellant occupied the 1.00 acre of vacant land with AC sheet roof building for his business, which he was carrying in the name and style of ''Sri Amman Home Appliances'' under the leave and licence of the first respondent herein. When all along the respondents are the absolute owners of 1.00 acre of land with AC sheet roof building measuring 4590 sq. ft. during the month of April, 2005, the first respondent approached the appellant requesting to vacate and deliver vacant possession, since he wanted to demolish the existing building for putting up a superstructure. After the request was made by the respondents, the appellant, suppressing the above facts, filed the suit in O.S. No. 2030 of 2005 on the file of the Additional District Munsif Court, Coimbatore, which was subsequently transferred and re-numbered as O.S. No. 340 of 2009 on the file of First Additional Subordinate Judge Court, Coimbatore only for a bare injunction. After the filing of the said suit, the respondents issued a legal notice specifically directing the appellant herein to vacate and deliver vacant possession of the suit property within a week. After receipt of the legal notice, the appellant declined to share any reply. 6. In the meanwhile, the respondents were advised to file the suit in O.S. No. 410 of 2006 for delivery of vacant possession and damages for wrongful use and occupation of the suit property from the appellant. Both the suits were taken up together and finally the trial Court, finding that there was no evidence whatsoever adduced by the appellant that the money from the partnership was utilised for the purchase of the suit property, accepting the documents Exs.A1-sale deed, A2 & A5-kist receipts and Exs.B1 and B2-tax receipts standing in the name of the wife of the first respondent, held that the appellant had miserably failed to establish his right over the suit property. Moreover, when the respondents also filed the suit for delivery of vacant possession, they have rightly discharged the burden and proved that they are the owners of the property by placing reliable and acceptable evidence that originally the suit property was purchased in the name of Mrs. Vijayalakshmi, the wife of the first respondent herein on the basis of a registered sale deed dated 30.5.1984 bearing Document No. 1741 of 1984 under Ex.A1 and paying the kist and other charges to the Government under Exs.A2 & A5. That apart, the respondents also established that there was no tenancy agreement between the appellant and the respondents. Even after the death of Mrs. Vijayalakshmi in the year 1987, the respondents have become the owners of the suit property. Therefore, accepting the case of the respondents that the suit property was not purchased from the joint income of the partnership business as claimed by the appellant, both the Courts below have found that there was no case made out by the appellant. When there have been concurrent findings of both the Courts below, without there being any substantial question of law, this Court, he pleaded, should not entertain the present second appeal. 7. In reply, the learned counsel for the appellant submitted that when the suit was filed by the respondents herein on the basis of the licence and permissive occupation granted in favour of the appellant, the trial Court ought not to have decreed the suit without there being a proper prayer on the basis of sufficient evidence proving that the appellant was inducted as a permissive occupant. When the maintainability of the suit itself was questioned by the appellant before the Courts below, the suit should have been dismissed. In support of his submissions, the learned counsel also placed reliance on the judgment of the Apex Court in the case of State of Rajasthan vs. Rao Raja Kalyan Singh (dead) by his legal representatives, AIR 1971 SC 2018 , for the proposition that the plea of non-maintainability of suit is a legal plea and can be accepted although no specific plea was taken or precise issue was framed. Adding further he has stated that when this issue is not very specific, but undoubtedly covers the plea taken by the respondents in the plaint, the plea of maintainability of the suit being a legal plea, the suit should have been dismissed, in my considered opinion, cannot be accepted for more than one reason. I do not find any merits in these submissions. 8. Firstly, the appellant, having filed the suit in O.S. No. 2030 of 2005, later on re-numbered as O.S. No. 340 of 2009, was issued with the notice by the respondents, being his own brother and daughters, asking him to vacate and deliver vacant possession of the suit property. Although the relationship between the appellant and the respondents reached the final point, the appellant cannot take a plea that in view of possible amicable settlement he failed to give any reply. Admittedly, in the present case, when the appellant filed the suit for bare injunction against his own brother, cannot be justified in not giving a reply to the notice issued by his brother dated 13.2.2006 asking him to vacate and handover possession of the suit property. Secondly, when the appellant filed the suit for bare injunction against his brother, one another suit was also filed by the respondents in O.S. No. 410 of 2006 for delivery of possession and damages for wrongful use and occupation of the suit property, on the premise that the suit property was purchased in the name of Mr. K. Devaraj's wife Mrs. Vijayalakshmi from one Mr. C. Ramasamy under a registered sale deed dated 30.5.1984 for a consideration of Rs. 20,000/- and her family were in possession and enjoyment of the suit property after the death of the said Mrs. Vijayalakshmi on 19.10.1987, leaving behind her husband and her two daughters as the legal heirs. It was the case of the respondents that even in the year 1989, the respondents had put up AC sheet roof building measuring about 4590 sq. ft. with a bathroom measuring 88 sq. ft. It was also the further case of the respondents that the first respondent, the appellant and their sister's son Mr. V. Rajeshkumar had started a partnership in the name and style of ''Keerthi Radiators'' in December, 1987. ft. with a bathroom measuring 88 sq. ft. It was also the further case of the respondents that the first respondent, the appellant and their sister's son Mr. V. Rajeshkumar had started a partnership in the name and style of ''Keerthi Radiators'' in December, 1987. Pursuant to the above said partnership business, the appellant had occupied the 1.00 acre of vacant land with AC sheet roof building for carrying on his business in the name and style of ''Sri Amman Home Appliances'' under the leave and licence of the respondents. However, during the month of April, 2005, when the first respondent approached the appellant with a request to vacate and deliver vacant possession, suppressing the same, the appellant filed the suit in O.S. No. 2030 of 2005 on the file of the Additional District Munsif Court, Coimbatore. Immediately thereafter, the respondents issued a legal notice calling upon the appellant to vacate and deliver possession of the suit property. As mentioned above, the appellant, in spite of the strange relationship between him and his brother, for the reasons best known to him, declined to give any reply whatsoever. When the appellant had no explanation whatsoever to the legal notice issued by the respondents, finally, after filing of the suit for delivery of vacant possession and damages for wrongful use and occupation of the suit property, the respondents had produced ample evidence through Exs.A1, A2, A5 viz. sale deed and kist receipts. Accepting all these documents, the trial Court has rightly come to the conclusion that the appellant cannot make a lawful resistance of the claim of ownership of the suit property. Therefore, the contentions advanced before this Court to interfere with the concurrent findings of both the Courts below on the ground of non-maintainability of the suit being a legal plea had been completely ignored by the Courts below, are liable to be rejected. That apart, when the question of leave and permissive occupation has been rightly decided on the basis of the acceptable evidence viz., Exs.A1, A2 & A5, this Court is not inclined to interfere with the findings of facts reached by both the Courts below. Accordingly, the second appeal fails and it is dismissed confirming the judgments and decrees of both the Courts below. Consequently, M.P. Nos. 1 and 2 of 2014 are also dismissed. There shall be no order as to costs. 9. Accordingly, the second appeal fails and it is dismissed confirming the judgments and decrees of both the Courts below. Consequently, M.P. Nos. 1 and 2 of 2014 are also dismissed. There shall be no order as to costs. 9. When the learned counsel for the respondents sought for time to be fixed for handing over the vacant possession, the learned counsel for the appellant resisted the said request not to fix any time limit, as he intends to go on appeal. But this Court is not inclined to accept the said objection. For all the reasons mentioned above, this Court directs the appellant to handover vacant possession within a period of two months.