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2021 DIGILAW 1390 (MAD)

Babu @ Sheik Khader v. Noorjahan

2021-04-20

P.T.ASHA

body2021
JUDGMENT : 1. The unsuccessful defendant before the Courts below is the appellant before this Court. 2.The suit in question is one to declare the plaintiffs exclusive title to the suit B schedule property and to deliver the possession of the suit B schedule property to the plaintiffs and for directing payment of mesne profits at Rs.7,200/- and for determination of future mesne profits. The B schedule property is part of the A schedule property. 3.The case of the plaintiffs is that the suit A schedule property belonged to one Sheik Kareem @ Syed Basha who has married to one Kairunbi and the two of them had three children, Noorjahan, Shamshad and John Basha the plaintiffs herein. Sheik Kareem @ Syed Basha has purchased the suit A schedule property from one Jaithunbi, wife of Abdul Wahab Sahib, under a registered Sale Deed dated 12.10.1947 and Jaithunbi in turn had purchased the said property from Mohammed Sheriff in the year 1926. After his purchase, the said Sheik Kareem @ Syed Basha had constructed a house which was bearing Door No.38A (Old). The Electricity Service Connection S.C.No.24 was also assessed to the said property. Sheik Kareem @ Syed Basha was also asserting his right by executing usufructuary mortgage deeds, one in favour of Pichai Mohammed Rowthar on 20.04.1954 fo Rs.100/- and another in favour of S.Fakir Mohammed Rowthar under a Sale Deed dated 24.10.1976. The A schedule property was part of Inam lands and after abolition of the Inams, Sheik Kareem @ Syed Basha was granted Ryotwari patta on 25.03.1979. 4.The plaintiffs would further submit that the father of the defendant herein one Sheik Gaffar Sahib was the husband of Sheik Kareem @ Syed Basha's sister. In the year 1972, the plaintiffs' father had permitted the defendant's father to reside in the A schedule property till such time as he found a suitable accommodation. However, the defendant's father did not vacate the property. 5.In the year 1983, the father of the plaintiffs died. Since the defendant's father had not vacated the premises the 3rd plaintiff had issued a notice dated 19.08.1987 calling upon the defendant's father to surrender the possession. By the end of the year 1987, the defendant's father has also vacated the property in question. 5.In the year 1983, the father of the plaintiffs died. Since the defendant's father had not vacated the premises the 3rd plaintiff had issued a notice dated 19.08.1987 calling upon the defendant's father to surrender the possession. By the end of the year 1987, the defendant's father has also vacated the property in question. 6.While so, serious disputes arose between the defendant and his father, as a result of which, the defendant had requested the plaintiffs to permit him reside in a portion of the property, namely, in the western portion of the suit A schedule property as a tenant on a monthly rent of Rs.200/- for one year and agreed to vacate the said room after one year. Taking into consideration the relationship, the plaintiffs had also permitted the defendant to reside in the said room described in the B schedule property with effect from January 1988. However, contrary to his assurance, the defendant did not vacate the room even after the expiry of one year and committed default in payment of rent from June 1995. The plaintiffs had issued two notices calling upon the defendant to vacate the premises followed by instituting proceedings under the Rent Control Act for eviction of the defendant from the suit schedule property. 7.On 30.07.1997, a counter was filed by the defendant denying the tenancy and setting up an exclusive title to the property. By order dated 30.11.1009, the Rent Control proceedings was dismissed on the ground that the title can be decided only by a Civil Court. The Appeal in R.C.A.No.1 of 2000 also ended in a dismissal by order dated 26.04.2002. Hence, the suit. 8.The plaintiffs had also denied the mortgage which was said to have been executed by the father of the defendant as sham and nominal documents and it did not clothe any right upon the defendant. 9.On entering appearance, the defendant had filed their Written Statement inter alia contending that the patta in respect of the A schedule property stood in their father's name and the property was originally classified as Dhargha poramboke. He would contend that prior to him, his father was in possession and enjoyment of the property for three decades and therefore, he had perfected title to the property. He would therefore seek to have the suit dismissed with costs. He would contend that prior to him, his father was in possession and enjoyment of the property for three decades and therefore, he had perfected title to the property. He would therefore seek to have the suit dismissed with costs. 10.Before the trial Court, the 2nd plaintiff had examined himself as PW1 and had marked Ex.A.1 to Ex.A.39. The defendants examined himself as D.W.1 and one Bhasheer Ahamed as D.W.2 besides marking Ex.B.1 to Ex.B.8 in support of his contention. 11.The trial Court after considering the evidence on record came to the conclusion that the property in respect of which the defendant was asserting title primarily on the basis of a mortgage said to have been executed by the defendant's father in favour of one Gopal. Ex.B.6 and Ex.B.2, the documents evidencing the mehar given by the defendant/father to his sister, the mother of the defendant are different properties and did not correlate with the properties described as a suit property. 12.Aggrieved by the said Judgment and Decree, the defendant had filed A.S.No.86 of 2005 on the file of the learned 1st Additional Subordinate Judge, Villupuram. The learned 1st Additional Subordinate Judge also concurred with the findings of the trial Court. The Courts below have also disbelieved the evidence given by D.W.2. Challenging the concurrent Judgment and Decree, the defendant has filed the above Second Appeal. 13.Notice was ordered to the respondents at the time of admission and the respondents has entered appearance through their counsel. 14.The defendant/appellant would once again contend that the suit property belongs to the defendant's father as he was in possession and enjoyment of the same and further, the property had been given as mehar to the defendant's mother by the plaintiffs' father who was her brother. The learned counsel was however unable to submit as to how the Judgment and Decree of the Courts below are substantially erroneous under Law. 15.The Appellate Court has held as follows: Other Language "jhth brhj;jpy; gpujpthjpapd; jfg;gdhh; nfhghy; vd;gtUf;F mlkhdk; gp.rh.M.6 \yk; bjhpe;jjhfr; brhy;yg;gLfpwJ/ gp.rh.M.6y; fz;l brhj;J jhd; jhth brf;ge;jp brhj;J vd fhzKoatpy;iy. gp.rh.M.2I ghh;f;fpd;wnghJ fhyk; 3y; kfuhf +.525/- rPjdkhf tpGg;g[uk; gz;rhfpg; bjUtpy; 12y; bek;gh; tPL fpHf;F nkw;fhf 32 mo/ tlf;F bjw;fhf 200 mot[s;s kid nkw;Fg;g[wk; rhpghjp tH';fg;gl;ljhf brhy;yg;gLfpd;wJ. mg;go ghh;j;jhy;/ fpHf;F nkw;fhf 16 mo tPl;Lf;F bjw;fhf 100 mo gp.rh.M.1dlgi gpujpthjp jha;je;ij jpUkzj;jpy; tH';fg;gl;ljhf fhzg;gLfpwJ. mjpy; rh;nt vz; Fwpg;gpltpy;iy. gp.rh.M.2I ghh;f;fpd;wnghJ fhyk; 3y; kfuhf +.525/- rPjdkhf tpGg;g[uk; gz;rhfpg; bjUtpy; 12y; bek;gh; tPL fpHf;F nkw;fhf 32 mo/ tlf;F bjw;fhf 200 mot[s;s kid nkw;Fg;g[wk; rhpghjp tH';fg;gl;ljhf brhy;yg;gLfpd;wJ. mg;go ghh;j;jhy;/ fpHf;F nkw;fhf 16 mo tPl;Lf;F bjw;fhf 100 mo gp.rh.M.1dlgi gpujpthjp jha;je;ij jpUkzj;jpy; tH';fg;gl;ljhf fhzg;gLfpwJ. mjpy; rh;nt vz; Fwpg;gpltpy;iy. jhth brhj;jpy; rh;nt vz;.497/ 23 vdt[k;/ V brhj;Jk;/ gp brhj;Jk; brhy;yg;gl;oUf;fpwJ. mjpy; fjt[ vz;.V brhj;Jf;F giHaJ 38V vdt[k;/ g[jpaJ 21/ 1 vdt[k; brhy;yg;gl;oUf;fpwJ. Mdhy; gp.rh.M.1y; fz;l kfh;brhj;J fjt[ vz;.2 vd brhy;yg;gl;oUf;fpwJ. vdnt ,J jhth rh;nt vz;zpy; fz;l ntW tPl;L vz; vd bjhpatUfpwJ. gp.rh.M.1y; fz;l kfh; brhj;J jhd; fpHf;F nkw;F rhpahd 16 moia mstplg;gl;L bjw;F tlf;F 55 mo vd rh;nt 457/ 1 gp.rh.M.6y; Fwpg;gplg;gl;oUf;fpwJ. ,J jhth brhj;J my;y vd bjhpa tUfpwJ.” 16.The above extract of the Judgment and Decree of the Appellate Court would clearly highlight the fact that the suit property and the property in respect of which the plaintiff to assert his title are two different properties. The Courts below has clearly found that the plaintiffs/respondents herein have been able to prove and trace the title to the Sale Deed dated 12.10.1947 (Ex.A.1) to prove their title. That apart, they also established their possession of the suit property starting from the mortgages that have been executed by their father marked as Ex.A2 and Ex.A3 and the Property Tax Receipts has been marked as Ex.A.14 to Ex.A.25 as also the Electricity Receipts Ex.A.26 to Ex.A.33. The appellant/defendant has not made out any question of law much less the substantial question of law warranting interference of this Court. Consequently, the Second Appeal stands dismissed, however, without any orders as to costs.