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2021 DIGILAW 1918 (MAD)

Parasmal v. K. V. Lakshmana Gounder

2021-07-20

P.T.ASHA

body2021
JUDGMENT : PRAYER: Second Appeal is filed under Section 100 of Code of Civil Procedure against the Judgment and Decree passed by the learned Principal Subordinate Judge, Coimbatore made in A.S.No.49 of 2008 dated 11.08.2008 reversing the Judgment and Decree passed by the learned Principal District Munsif, Coimbatore made in O.S.No.2229 of 2006 dated 28.01.2008. The plaintiff is the appellant before this Court. The Second Appeal is filed challenging the Judgment and Decree made in A.S.No.49 of 2008 by the learned Principal Subordinate Judge, Coimbatore reversing the Judgment and Decree of the learned Principal District Munsif, Coimbatore made in O.S.No.2229 of 2006. 2. The facts in brief, which are necessary for disposing of the above Second Appeal are as follows: (i) It is the case of the plaintiff that he had purchased the suit property which is an extent of 0.51 3/4 ares of Punja lands comprised in S.No.504/2B of Pannimadai Village, Coimbatore North Taluk bearing Patta No.188 within the specified boundaries. The said property was purchased by the plaintiff from one Mrs.Teresa Simon, under a registered Sale Deed dated 26.11.2004 and under the Sale, his vendor has put him in possession and enjoyment of the property. Pursuant to the purchase, the plaintiff has also mutated the revenue records in his name. At the time of purchase, the suit property was being managed and looked after by defendants 1 and 2 for and on behalf of Teresa Simon, who is a permanent resident of Kerala. (ii) The defendants 1 and 2, who are the neighbouring land owners, were very much interested in purchasing the suit mentioned property. After the plaintiff had purchased the property, the defendants 1 and 2 started interfering in his possession and enjoyment of the suit property. They started preventing the plaintiff from entering the suit property and carrying on with the agricultural activities. On 30.08.2006, he was physically prevented from entering into the property, however, the attempt failed with the help of neighbours. However, the defendants have threatened to continue with the obstruction. Hence, the suit. 3. The defendants 1 and 2 have filed a written statement in which they would contend that they have been inducted as a lessee in respect of the suit property by the uncle of Mrs.Teresa Simon, one Mr.Kumarasamy Gounder, under a Oral Lease Agreement, as early in the year 1979. Hence, the suit. 3. The defendants 1 and 2 have filed a written statement in which they would contend that they have been inducted as a lessee in respect of the suit property by the uncle of Mrs.Teresa Simon, one Mr.Kumarasamy Gounder, under a Oral Lease Agreement, as early in the year 1979. At the time of entering the lease, the second defendant has paid a sum of Rs.20,000/- as rent for the entire period of 40 years. 4. Thereafter, Mr.Kumarasamy Gounder had sold the property to Mrs.Teresa Simon, the plaintiff's vendor and at the time of the execution of the sale in favour of Mrs.Teresa Simon, the lease in favour of the second defendant was informed and Mrs.Teresa Simon also acknowledged the lease in favour of the defendants. However, Mrs.Teresa Simon had started interfering with the possession and enjoyment of the property by the defendants. The second defendant; therefore had filed an application before the Coimbatore North Taluk Tahsildar and Record Officer in T.R.No.3/2004 to record him as a 'tenant' in respect of the suit property. Thereafter, the said Mrs.Teresa Simon had sold the property to the plaintiff solely with a view of evicting the second defendant under one pretext or the other. 5. The Learned Principal District Munsif, Coimbatore had framed the following issues: 6. The plaintiff had examined himself as P.W.1 and marked Ex.A1 to Ex.A4. On the side of the defendants, the second defendant had examined himself as D.W.1 and one A.Palanichamy as D.W.2 and marked Ex.B1 to Ex.B6 through D.W.1 and Ex.B7 to Ex.B10 through D.W.2. The learned District Munsif, ultimately decreed the suit as prayed for, against which, the defendants 1 and 2 have filed A.S.No.49 of 2008 on the file of the Appellate Authority, Coimbatore. The Appellate Court reversed the Judgment and Decree of the Trial Court and aggrieved by this Judgment and Decree, the plaintiff is before this Court. 7. Dr.C.Ravichandran, learned counsel appearing on behalf of the plaintiff would submit that the plaintiff has proved both the title as well as possession wherein, the title has been proved by marking Ex.A1 and Ex.A2 and possession by marking Ex.A3 and Ex.A4, which are the patta and chitta that would clearly show that the plaintiff is in possession of the said property. He would argue that there is absolutely no evidence on the side of the defendants to show their possession of the suit property as a tenant. In fact, it is his argument that tenancy has not been proved at all and the petition in T.R. No.3 of 2004 which has been marked as Ex.D6 is not a certified copy of the application and the filing of the same has not been independently proved by the defendants. He would submit that the property, being a vacant land, once title is established, the lower Appellate Court was wrong in reversing the well considered Judgment and Decree of the trial Court. 8. Per contra, Mr.Hariharan, learned counsel appearing on behalf of the defendants would submit that the defendants have not staked any right to the suit property except that they have been in enjoyment of the property as a tenant right from 1979 under the original owner Mr.Kumaraswamy Gounder and their possession be protected. He would further argue that this fact has been accepted by the plaintiff in their pleading wherein they have stated that the defendants were in possession of the property at the time of his purchase. 9. He would argue in order to get over the fact that the defendants have moved the Authority for having themselves recorded as a cultivating tenant, the plaintiff has now taken a stand that the defendants were only the 'Care Takers' of the property. That apart, they have not examined their vendors to speak about the possession of the property by the defendants. He would submit that all these factors have been taken note of by the Appellate Court and therefore, no exemption can be taken to the Judgment and Decree of the Lower Appellate Court, Coimbatore. 10. Heard the learned counsels appearing on either side and perused the records. 11. The plaintiff has come forward with a case for declaring his title and for an injunction. In support of the contention that he is the owner of the property, he has filed the Sale Deed in his favour as well as the Parent document, namely the Sale Deed dated 28.05.1981 executed by the said Mr.Kumarasamy Gounder in favour of Mrs.Terasa Simon. As regards the possession, the following statements in the Plaint have to be taken note of. In Paragraph nos.5 and 6, the plaintiff has stated as follows:- "5. As regards the possession, the following statements in the Plaint have to be taken note of. In Paragraph nos.5 and 6, the plaintiff has stated as follows:- "5. At the time of purchase of the suit mentioned property was managed looked after on behalf of the above said Mrs.Teresa Simon by the 1st and 2nd defendant as she was permanently residing in the state of Kerala, as adjacent land owners with permission from the plaintiff. 6. The 1st and 2nd defendant owning lands adjacent to the suit mentioned property, were very much interested in purchasing the suit mentioned property. Taking advantage of the vendor residing in Kerala, the 1st and 2nd defendants were demanding sale at a lower level price." 12. Therefore, the plaintiff has in a very clear and categoric terms admitted that at the time of his purchase, the defendants were in possession of the property, though it is his statement that they were in possession as 'Care Takers'. There is no pleading to show as to when the defendants have handed over the possession to the plaintiff. In fact, in his cross examination, the plaintiff has admitted the following:- 13. Therefore, in no uncertain terms, the plaintiff has admitted the defendants being in possession of the suit property. The defendants would contend that they are in possession of the suit property in their capacity as a lessee. To support this contention, Ex.P.6 has been filed which is an application that has been filed before the Tahsildar and Record Officer, Coimbatore. The plaintiff in this application seeks to have his tenancy recorded. The filing of this application has been mentioned by the plaintiff in his Written Statement at Paragraph No.6. There is no rebuttal to the above statement or to the documents that have been filed. In fact, the plaintiff has not deemed it fit to cross-examine the defendants with reference to this application. 14. Considering the fact that the plaintiff has proved his title to the property by marking Ex.A1 and Ex.A2, the Lower Appellate Court was wrong in dismissing the suit in toto. The Appellate Court ought to have declared the plaintiff's title to the property more so, when the same has not been disputed by the defendants. 14. Considering the fact that the plaintiff has proved his title to the property by marking Ex.A1 and Ex.A2, the Lower Appellate Court was wrong in dismissing the suit in toto. The Appellate Court ought to have declared the plaintiff's title to the property more so, when the same has not been disputed by the defendants. However, with reference to possession, by considering the fact that the plaintiff has himself admitted the continued possession of the defendants, the plaintiff is not entitled to the decree of possession. It is needless to state that it is open to the plaintiff to evict the defendants in the manner known to Law. 15. In fine, this Second Appeal is Partly Allowed and there shall be a Decree of Declaration, in all other respects, the decree of the lower Appellate Court in A.S.No.490 of 2008 is confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.