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2021 DIGILAW 1826 (MAD)

Chinnathambi v. Poomalai (died)

2021-06-30

G.R.SWAMINATHAN

body2021
JUDGMENT : The plaintiffs in O.S No.50 of 2001 on the file of the Additional District Munsif, Sankarankovil are the appellants in this second appeal. The appellants filed the said suit seeking the reliefs of declaration, permanent injunction, mandatory injunction and recovery of possession. The reliefs of declaration and permanent injunction were sought in respect of the first item. In respect of the second item, the reliefs of declaration as well as the mandatory injunction/recovery of possession was sought. The first schedule measures 21 cents. The second schedule measures 1 ½ cents. Thiru.Poomalai filed his written statement denying the plaint averments. According to him, the plaintiffs originally sold eight cents of land on the western side of the suit schedule property. Based on the oral sale, Poomalai took possession of the eight cents and also put up construction thereon. The defendant controverted the claim of the plaintiffs that they were not aware of the constructions put up thereon. The learned trial Judge framed the necessary issues. The first plaintiff Chinnathambi examined himself as PW.1 and one Manuvelraj as PW.2. Exs.A1 to A3 were marked. The defendant examined himself as DW.1 and two other witnesses were examined as DW.2 and DW.3. Exs.B1 to B4 were marked. An Commissioner was appointed and he inspected the suit property and he submitted his report with sketch and plan. They were marked as Court Exs.1 and 2. After considering the evidence on record, the learned trial Judge by judgment and decree dated 27.06.2003 decreed the suit as prayed for. Aggrieved by the same, the defendant Poomalai filed A.S No.101 of 2003 before the Sub Court, Sankarankovil. By the impugned judgment and decree dated 18.03.2004, the first appellate court partly allowed the appeal and suspended the reliefs of declaration and enjoyment in respect of the entire property other than the six and half cents on the western side. The first appellate court sustained the claim of the defendant that the property occupied by him was orally sold by the plaintiffs and only with their knowledge and acquiescence, the constructions were put up. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law : "1. The first appellate court sustained the claim of the defendant that the property occupied by him was orally sold by the plaintiffs and only with their knowledge and acquiescence, the constructions were put up. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law : "1. Whether in law the lower appellate court was right in protecting the possession of a trespasser against the true owner, thus flouting the dictum laid down in AIR 1962 Mad 149 ? 2. Whether the lower appellate court was wrong in holding that the appellants had acquiesced to the respondent's possession when the appellants had filed the suit immediately on failure of mediation ? 3. Whether the lower appellate court was wrong in accepting the respondent's case of oral sale?” 2. Heard the learned counsel on either side. 3. The learned counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellants. It is obvious from Ex.A1 that the entire suit schedule property measuring 22 ½ cents belonged to one Ponnaiah Nadar. That the encroached portion also originally belonged to Ponnaiah Nadar is not in doubt. Following the demise of Ponnaiah Nadar, the property devolved on the plaintiffs. It is well settled that there cannot be any plea of oral sale. The contract of sale has to be necessarily in writing. If the sale consideration is above Rs.100/-, then, it will have to be compulsorily registered. Therefore, he submitted that the first appellate court went completely wrong in sustaining the contention of oral sale and granting relief to the defendant on that basis. According to the learned counsel for the appellants, the defendant was a rank trespasser and therefore, the question of protecting his possession against the true owner will not arise at all. He also would submit that the plaintiffs were absolutely unaware of the construction put up by the defendant. Therefore, the plea of acquiescence also has to be rejected. He called upon this Court to set aside the impugned judgment and decree and restore the judgment and decree of the trial court. 4. He also would submit that the plaintiffs were absolutely unaware of the construction put up by the defendant. Therefore, the plea of acquiescence also has to be rejected. He called upon this Court to set aside the impugned judgment and decree and restore the judgment and decree of the trial court. 4. Per contra, the learned counsel for the respondents submitted that the impugned judgment and decree passed by the first appellate court does not call for any interference. 5. I carefully considered the rival contentions and went through the evidence on record. The original defendant Poomalai had put up construction on a portion of the suit property. The first defendant Chinnathambi is very much a neighbor. While the first appellate court could have given a limited protection that Poomalai could not be dispossessed except by due process of law, a blanket protection could not have been given in his favour. I therefore, answer the first substantial question of law accordingly. 6. The original defendant did not claim the disputed property as his own. His contention was that it was orally sold by the plaintiffs. Section 54 of the Transfer of Property Act, 1882 after defining what is sale also lays down as to how sale has to be made. The provision reads as follows : “Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.” Section 9 of the Transfer of Property Act, 1882 deals with oral transfer. It states that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. If the defendant wanted to sustain his plea of oral sale, he must have furnished particulars so as to bring his case within the aforesaid provisions. He has not done so. The valuation of the property has not been set out. It is not stated as to when the property was taken delivery. If the defendant wanted to sustain his plea of oral sale, he must have furnished particulars so as to bring his case within the aforesaid provisions. He has not done so. The valuation of the property has not been set out. It is not stated as to when the property was taken delivery. The first appellate court ought to have held that the plea of oral sale has not been proved. The sequitur is that the defendant could only have been treated as a trespasser. Of course, the plaintiffs appear to have acquiesced in. The defendant was enjoying electricity connection right from the year 1997. Though a neighbor, Chinnathambi failed to object to the putting up of construction on the suit property. He did not even issue legal notice. The question is whether the plaintiffs can be non-suited on the ground of acquiescence. The answer is clearly in the negative. The plaintiffs did not seek any equitable relief. Only then, they could have been refused relief on the ground of delay. The plaintiffs seek the relief of recovery of possession. When the issue regarding title is found in their favour, the defendant can succeed only by proving adverse possession. The suit was filed in the year 2001. It is not the case of the defendant that he was in possession of the disputed property even prior to 1999. When relief is anchored on a legal right, the party is entitled to it if the legal right is established. As held by the Hon'ble High Court of Karnataka in K.V.Narayan vs. Sharana Gowda, [ AIR 1986 Kar 77 ], mere delay and acquiescence will not defeat the remedy unless it has continued for such a period so long as to defeat the right itself. In this case, adverse possession alone could have saved the defendant from being dispossessed. When that is not the defence, the court has no option but to grant the relief sought for. The second and third substantial questions of law are answered in favour of the appellants. The impugned judgment and decree passed by the first appellate court is set aside. The judgment and decree passed by the trial court is restored. The second appeal is allowed. No costs.