Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1970 (MAD)

S. Mahadevan v. S. Nethaji

2020-10-16

R.SUBRAMANIAN

body2020
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the Judgment and decree in AS No.14 of 2017 dated 13.01.2020, on the file of Subordinate Judge, Thiruvallur in confirming the judgment and decree in O.S.No.92 of 2010 dated 31.07.2017, on the file of District Munsif Court cum Judicial Magistrate, Uttukottai.) This matter is taken up for hearing through Video-Conferencing. 1. The defendants in OS No.92 of 2010 have come up with this Appeal challenging a decree for permanent injunction granted by the Trial Court in OS No.92 of 2010 and affirmed by the first Appellate Court in AS No.14 of 2017. 2. The plaintiffs sued for injunction contending that the suit properties originally belonged to their father Samy Chengaiah, who was in possession of the same till his life-time and after his death the suit first item is held by the plaintiffs jointly with the other heirs of Samy Chengaiah. As far as items 2 to 4 are concerned the other legal heirs of Samy Chengaiah, have released their rights in favour of the first plaintiff under a Release Deed dated 01.09.2009 registered as Document No.2413 of 2009. It is also the case of the plaintiffs that as regards items 5 and 6 which were purchased by their father in the year 1991 all the legal heirs had released their share in the said properties in favour of the second plaintiff vide Release Deed dated 01.09.2009. Claiming that the defendants attempted to interfere with their possession during the year 2010, the plaintiffs came up with the above suit. 3. The suit was resisted by the defendants contending that Samy Chengaiah, even during his life-time, had agreed in writing to sell the suit properties to them and received a sum of Rs.88,070/- on 07.07.1994, it was also stated that the Sale Agreement fructified into a sale letter on 24.12.1994. The said document is said to have been executed by Samy Chengaiah for himself and on behalf of his minor sons. It is claimed by the defendants that after the sale letter, the defendants had planted mango saplings had developed a complete mango grove. The plaintiffs taking advantage of the non-registration of the sale document are now attempting to grab the property which was sold by their father. 4. It is claimed by the defendants that after the sale letter, the defendants had planted mango saplings had developed a complete mango grove. The plaintiffs taking advantage of the non-registration of the sale document are now attempting to grab the property which was sold by their father. 4. At trial the second plaintiff was examined as P.W.1 and Exhibits A1 to A12 were marked. On the side of the defendants, the second defendant was examined as D.W.1 and three other witnesses were examined as D.Ws.2 to 4. One Rajeswari was examined through Advocate Commissioner on the side of the defendants. Exhibits B1 to B4 were marked. A Commissioner was appointed pending suit and his Report and Plan were marked as Exhibits C1 and C2. 5. Upon a consideration of the evidence on record, the learned Trial Judge found that the unregistered instrument of sale will not confer valid title on the defendants. The Trial Court also found that all Revenue documents have been mutated in favour of the plaintiffs after the death of Samy Chengaiah and there is no document to prove the possession of the defendants on the date of the suit. Considering the overwhelming documentary evidence that was made available by the plaintiffs, the Trial Court concluded that the plaintiffs have established their actual physical possession of the suit properties on the date of the suit. Upon such conclusion, the learned Trial Judge decreed the suit as prayed for. Aggrieved the defendants preferred an Appeal in AS No.14 of 2017. 6. The learned Subordinate Judge, Thiruvallur, who heard the Appeal concurred with the findings of the Trial Court and dismissed the Appeal. Hence the Second Appeal. 7. I have heard Mr.V.Raghavachari, learned counsel appearing for the appellants. 8. Mr.V.Raghavachari, learned counsel appearing for the appellants would vehemently contend that dehors the sale document there is evidence to show that the defendants are in possession of the property. He would draw my attention to the evidence of P.W.1, wherein P.W.1, in cross-examination, had deposed as follows: “TAMIL” 9. It is this evidence which is relied upon by the learned counsel for theappellants to claim that P.W.1 himself has admitted that the defendants are in possession of the property. I am unable to accept the interpretation placed by the learned counsel on the evidence that has been extracted above. It is this evidence which is relied upon by the learned counsel for theappellants to claim that P.W.1 himself has admitted that the defendants are in possession of the property. I am unable to accept the interpretation placed by the learned counsel on the evidence that has been extracted above. By no means, it can be said that P.W.1 has admitted the possession of the defendants of the suit property. All that he has said is that they had to pass through a gate which is situate in the defendants property and that gate was put up by the defendants. That by itself cannot be taken as admission of possession by the defendants of the suit property. 10. As rightly held by the Courts below, the plethora of documentary evidence in the form of Revenue Records and statutory documents like chitta and Adangal stand in the name of the plaintiffs. The plaintiffs have established their ownership. The sale letter which is an unregistered document cannot be looked into to either show title or possession of the defendants. Hence I do not find any error or perversity in the findings of the Courts below when they upheld the claim of possession of the plaintiffs over the suit property. 11. I therefore do not find any question of law much less substantial question of law in order to enable me to entertain the Second Appeal. The Second Appeal therefore fails and it is accordingly dismissed without being admitted. Consequently, the connected miscellaneous petition is closed.