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2021 DIGILAW 331 (MAD)

John v. Lourthubai

2021-02-02

N.SATHISH KUMAR

body2021
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the learned Subordinate Judge, Kuzhithurai in A.S.No.153 of 1998, dated 20.11.2003 pursuant to the judgment and decree dated 22.09.1998 in O.S.No.281 of 1992 on the file of the Principal District Munsif, Kuzhithurai). 1. Aggrieved over the concurrent findings of the Courts below, decreeing the suit filed for permanent injunction, the present Second Appeal is filed. 2. The parties are referred to as per their rank before the trial Court. 3. The brief fact, leading to file this Second Appeal, reads as follows: The first defendant is the brother of the plaintiff and the second defendant is the wife of the first defendant. The suit property is originally belonged to the mother of the plaintiff viz., Gnanamma. The said Gnanamma executed a sale deed dated 24.11.1983 in favour of the plaintiff. The plaintiff is in possession and enjoyment of the suit schedule property. However, on 20.05.1992, the defendants tried to trespass into the suit schedule property. Hence, the suit. 4. Denying the allegations in the plaint, it is the contention of the defendants in the written statement that the sale deed, dated 24.11.1983, executed in favour of the plaintiff is a fraudulent document and the mother of the plaintiff and the first defendant have never executed such document. Further in the written statement, it is stated that the defendants are residing in the building, which is situated in the suit schedule property and these facts are suppressed by the plaintiff. Hence, disputed the plaintiff's claim. 5. The trial Court, based on the above pleadings, framed the following issues: i) Whether the plaintiff has possession and enjoyment over the suit schedule property? ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? iii) Whether the suit is maintainable? And iv) To what other reliefs, the plaintiff is entitled? 6. On the side of the plaintiff, she himself was examined as P.W.1 and Exs.A1 to A8 were marked. On the side of the defendants, second defendant was examined as D.W.1. However, no document was marked. The trial Court, taking note of the title in favour of the plaintiff and also the revenue records and the house tax receipts filed by the plaintiff, concluded that the plaintiff is in possession over the suit property and granted injunction. On the side of the defendants, second defendant was examined as D.W.1. However, no document was marked. The trial Court, taking note of the title in favour of the plaintiff and also the revenue records and the house tax receipts filed by the plaintiff, concluded that the plaintiff is in possession over the suit property and granted injunction. As against which, the defendants have filed an appeal suit before the Sub-Court, Kuzhithurai. Before the first appellate Court, the defendants have filed five documents and the same were marked as Ex.B1 to B5 and contended that the Family Card for the year 1998-2003 stands in the name of the first defendant. Besides, suit property also mortgaged in favour of one Padmanaban and his wife viz., Rosammal has made over the suit property to the first defendant under Ex.B2. The first appellate Court, taking note of the fact that the defendants have filed those documents only for the purpose of this case and only after the evidence was adduced by the D.W.1, as early as on 09.09.1997, the Family Card was obtained by the defendants in the year 1988 and further the alleged made over deed was not proved the possession of the defendants, confirmed the decree and judgment of the trial Court. As against which, the present second appeal is filed. 7. While admitting the Second Appeal, the following substantial questions of law have been framed: “i) Whether the suit as framed is maintainable in law? ii) Even though the defendants disputed the title of the plaintiff and contended that the defendants were in physical possession of the property, the plaintiff did not amend the plaint to seek the relief of declaration of title and recovery of possession. In such circumstance, whether the decree for injunction granted by the lower Court is sustainable in law.” 8. The learned counsel appearing for the appellants would submit that the appellants have established their possession over the suit property through Ex.B1 to Ex.B5. Besides, the defendants also disputed the title of the plaintiff. Hence, it is the contention of the learned counsel for the appellant that without the plaint being amended for declaration of title and recovery of possession, the Courts below had erred in granting injunction in favour of the plaintiff. Ex.B1- Family Card clearly shows that the first defendant and his family is residing in the suit property. Hence, it is the contention of the learned counsel for the appellant that without the plaint being amended for declaration of title and recovery of possession, the Courts below had erred in granting injunction in favour of the plaintiff. Ex.B1- Family Card clearly shows that the first defendant and his family is residing in the suit property. Besides, Ex.B1 and Ex.B3-made over deed has also indicated that the original mortgagee has made over the suit schedule property in favour of the first defendant. These facts have not been taken note of by the first appellate Court. Hence, he prayed for allowing the appeal. 9. The learned counsel appearing for the respondent submitted that the documents Ex.B1 to B5 have been crated only for the purpose of this case and also to fill up the lacuna. The Family Card was obtained, subsequently, after the evidence was adduced by D.W.1. However, the made over deed relied upon by the defendants does not show that defendants are in possession of the suit property. Though the defendants have taken a stand in the written statement that the sale deed-Ex.A1, dated 24.11.1983 executed in favour of the plaintiff is fraudulent, the same has not been established. Hence, it is the contention of the counsel for the respondent that the plaintiff has not only proved the title, but also possession. The house tax receipts, prior and after to the filing of the suit also filed. Hence, she prayed for dismissing the appeal. 10. Heard the learned counsel appearing for the appellants, the learned counsel appearing for the respondent and perused the materials available on record carefully. 11. The suit has been laid for a bare injunction on the basis of Ex.A1. The relationship between the parties have not been disputed. The plaintiff is the brother of the first defendant. The second defendant is the wife of the first defendant. In the written statement, except contending that the sale deed executed in favour of the plaintiff is fraudulent, no other pleadings whatsoever have been made. If the entire written statement is read together, it is seen that except denying the allegations in an evasive manner, no other specific allegations have been made in the written statement. The allegation of the plaintiff is not denied, specifically with reference to the possession, alleged trespass into the suit property. If the entire written statement is read together, it is seen that except denying the allegations in an evasive manner, no other specific allegations have been made in the written statement. The allegation of the plaintiff is not denied, specifically with reference to the possession, alleged trespass into the suit property. It is well settled that every allegations made in the plaint has to be denied, specifically, mere denial in an evasive manner may not amount to denial of the facts and the pleadings. Such an evasive denial is also deemed to be an admission on the part of the parties. Be that as it may, it is the case of the plaintiff that under Ex.A1, she got title and ever since, from the date of sale in her favour, she is in possession of the property. Though the defendants have contended that they are in possession of the property and also paid the property tax, during the trial, no documents whatsoever have been filed. In fact, the second defendant was examined as D.W.1 on 09.09.1997 and at the relevant point of time, no document whatsoever has been filed. Only at the appeal stage, the documents viz., Family Card and other documents were filed. A perusal of Ex.B1-Ration card, clearly shows that the same was obtained only in the year 1998, after the evidence was over before the trial Court and it was obtained only for the purpose of this case or otherwise to fill up the lacuna. 12. It is also relevant to note that if really, the first defendant was in possession of the property, as stated by them, from the very inception, they could have filed other documents like voters' Identity Card, but none of the document was filed. The very evidence of D.W. 1, clearly indicates that she is not even aware of the nature and extent of the suit property. If really, the defendants are in possession of the suit property, it is the normal human contact of any person, who is in possession of suit property for a long period, as alleged, is expected to give at least minimum details as to the property. But the evidence of D.W. 1, clearly shows that they never paid any tax to the property at any point of time. But the evidence of D.W. 1, clearly shows that they never paid any tax to the property at any point of time. These facts have been considered by the first appellate Court, while appreciating the additional documents filed by the appellants before the first appellate Court. When the first appellate Court has factually appreciated all the documents and evidence merely on the basis of the evasive denial in the written statement that the sale deed executed in favour of the plaintiff is fraudulent, that cannot be construed to mean that there is a serious issue raised as against the title of the plaintiff forcing the plaintiff to seek the relief of declaration. In such view of the matter, this Court has found that the plaintiff is in possession of the suit property, and the plaintiff has filed the revenue records and house tax receipts not only prior to the suit, but also after the suit and the defendants have filed Ex.B1 to Ex.B5 documents only to fill up the lacuna in the appeal stage. Therefore, this Court does not find any infirmity or error in the findings of the Courts below. In fact, the defendants have not proved the possession over the property. 13. In such view of the matter, the questions of law framed by this Court are answered against the appellant and accordingly, this Second Appeal is dismissed and the judgment and decree of the Courts below are confirmed. No costs. Consequently, connected miscellaneous petition is closed.