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2022 DIGILAW 871 (MAD)

Chandran v. Easu

2022-04-07

S.S.SUNDAR

body2022
JUDGMENT : [Common Prayer:- Second Appeals filed under Section 100 of the Constitution of India, to set aside the judgements and Decrees passed in A.S.Nos.5 of 2014 & 40 of 2013 dated 03.07.2017 on the file of the Sub court Tiruvallur in confirming the Judgements and Decrees made in OS.Nos.139 of 2005 & 514 of 2004, dated 30.07.2013 on the file of the District Munsif Court at Tiruvalur.] 1. The plaintiff in the suit in OS.No.514/2004 on the file of District Munsif Court at Thiruvallur, is the appellant in S.A.No.692/2017. The appellant has also filed another appeal in S.A.No.691 of 2017against the Judgment and decree of the learned Subordinate Judge, Thiruvallur in A.S.No.5/2014 confirming the judgment and decree of the learned District Munsif, Thiruvallur in OS.No.139/2005 filed by the respondent in SA.No.691/017. 2. The appellant as plaintiff filed the suit in O.S.No.514/2004 for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. The suit property is described as an extent of 246 sq. meter in survey Number 60/1 in Karikalavakkam Village Firka, Thiruvallur Taluk with a thatched hut. The suit property is also described with reference to four boundaries. 3. The case of the appellant in his plaint is that the suit property originally belonged to one Easu of Karikalavakkam Village. It is stated further that the said Easu mortgaged the suit property to one Ammavasai for a sum of Rs.2000/- in the year 1993 with an undertaking to remit the mortgage amount within one year. It is further pleaded in the plaint that the said Easu was unable to redeem the mortgage within the stipulated period and requested the plaintiff to redeem the mortgage in the year 1994 and permitted the plaintiff to reside in the suit property from the month of March-1994 by putting up a thatched hut. 4. It is further stated that ever since the date of permission, the plaintiff is in possession and enjoyment of the suit property by putting up a thatched hut. It is further stated that patta and other revenue records are in the custody of the plaintiff for a long number of years. Stating that the defendants attempted to dispossess the plaintiff from the suit property, the suit came to be filed on 01.08.2004 for permanent injunction. It is further stated that patta and other revenue records are in the custody of the plaintiff for a long number of years. Stating that the defendants attempted to dispossess the plaintiff from the suit property, the suit came to be filed on 01.08.2004 for permanent injunction. The 4th defendant in the appellant's suit who is described as the person who gave permission to the plaintiff and whose title was admitted by the plaintiff filed, OS.No.139/2005 for declaration of tile and for recovery of possession in respect of the very same suit property. 5. The case of the plaintiff in O.S.No.139/2005 is that the suit property was originally acquired by his father by name Chengan and that the plaintiff became the absolute owner of the property after the life time of his father by getting patta. It is stated that he permitted the defendant namely the plaintiff in O.S.No.514/2004, who is the son of his parental aunt by name Nagammal, to reside in the suit property along with him. 6. It is the specific case of the respondent who is the plaintiff in O.S.No.139/2005 that he never conveyed any right in favour of the defendant. It is seen that the suit in O.S.No.514/2004 was against the defendants 1 to 3 by describing them as strangers and the 4th defendant who is the plaintiff in O.S.No.139/2005 got himself impleaded subsequently. 7. The trial Court dismissed the suit filed by appellant after specifically holding that the appellant is in possession only as a permissive occupant and therefore, he is not entitled to seek injunction against the true owner. The appellant relied upon the evidence of respondent before the trial Court who admitted the prior mortgage and the possession of the appellant pursuant to the redemption of mortgage. 8. It is admitted in the course of trial that the alleged mortgage was stated to have been obtained by a third party was not registered or written mortgage and it is admitted that the mortgage itself was a oral arrangement. Except the house tax receipt and the patta which stands in the name of the 4th defendant no other document is produced by the plaintiff/appellant to prove his possession or right as an assignee of the mortgage. Therefore there is no piece of evidence produced by the appellant before the Lower Court to prove the possession of the appellant under any written instrument. 9. Therefore there is no piece of evidence produced by the appellant before the Lower Court to prove the possession of the appellant under any written instrument. 9. Since the title of respondent is categorically admitted by the plaintiff himself in the plaint, the trial Court had no difficulty in holding that the appellant is not entitled to get the relief of injunction and that the plaintiff has no defense to resist the suit for possession filed by respondents. Therefore the trial Court dismissed the suit filed by the appellant and decreed the suit filed by the respondent who is the 4th defendant in the suit in O.S.No.514/2004. Aggrieved by the judgement and decree of the trial Court the appellant filed an appeal in AS.No.5/2014 as against the judgement and decree in O.S.No.139/2005 and another appeal in A.S.No.40/2013 as against the judgement and decree in O.S.No.514/2004. 10. The Appellate Court after independently considering the pleadings and evidence came to the conclusion that the appellant is not entitled to the relief of injunction as his claim is not supported by any oral or documentary evidence. The Appellate Court further held that the evidence of the appellant is contradictory and hence not reliable. The Appellate Court also come to a definite conclusion that the respondent permitted the appellant to reside the suit property and that the appellant has not explained how his permissive possession had become a possessoy right to claim title against the true owner. 11. The contention is that the documents were handed over to the appellant at the time of giving permission to the plaintiff by respondent. Thought it was accepted by the Courts below, the Courts below specifically held that the plaintiff can not claim title or any right to be in possession on the basis of his possession of original documents. Aggrieved by the judgements and decrees of the Courts below, the above Second Appeal has been filed by the appellant who is the plaintiff in O.S.No.514/2004 and defendant in O.S.No.139/2005. 12. In the memorandum of grounds in the Second Appeals, the appellant has raised the following substantial questions of law : S.A.No.691 of 2017 (i) Whether the Courts below are right in demanding a document as a proof of mortgage when the factum of mortgage had been admitted by the both the parties and is it not hit by Section 58 of the Indian Evidence Act, 1872? (ii) Whether Courts below are right in misconstruing Section 17 of the Indian Evidence Act, 1872, when the admission is the best evidence available with the Courts? (iii) Whether the Courts below are right in decreeing the suit when the suit is hopelessly barred by limitation? S.A.No.692 of 2017 (i) Whether the Courts below are right in demanding a document as a proof of mortgage when the factum of mortgage had been admitted by the both the parties and is it not hit by Section 58 of the Indian Evidence Act, 1872? (ii) Whether Courts below are right in misconstruing Section 17 of the Indian Evidence Act, 1872, when the admission is the best evidence available with the Courts? (iii) Whether the Courts below are right in dismissing the suit of the appellant when the respondents had miserably failed to prove that the appellant is a permissive occupant?" 13. The learned counsel appearing for the appellant vehemently contented that the case of the appellant is admitted by the respondent. The portion of evidence of the contesting respondent is that the suit property was mortgaged to a third party and the respondent requested the plaintiff to redeem the property and that the respondent later permitted the plaintiff to be in possession of the property. 14. It is pertinent to mention that the mortgage pleaded is not a registered instrument and it is admitted before this Court that it was by oral agreement. It is submitted that the suit property was mortgaged to one Ammavasai upon receipt of a sum of Rs.2000/-. It is now made clear that the appellant has not let in any evidence to show or prove that possession of appellant is under any written instrument or deed of conveyance. In the plaint, the appellant has stated as follows : “3. Plaintiff submit that the suit schedule mentioned property is originally belongs to one Easu of Karikkalavakkam Village. The suit property mortgaged to one Ammavasaiby Easu for a sum of Rs.2000/- in the year 1993 with the condition to redeem within year. The Easu was unable to redeem the mortgage even after the stipulated period. The said Easu being the close relative of the plaintiff he requested the plaintiff to redeem in the custody of plaintiff redeem the Mortgage in the year 1994. The Easu was unable to redeem the mortgage even after the stipulated period. The said Easu being the close relative of the plaintiff he requested the plaintiff to redeem in the custody of plaintiff redeem the Mortgage in the year 1994. At that time they said Easu permitted the plaintiff to reside in the suit property in the month of March 1994 a thatched house in the property. Therefore ever since from the date of permission the plaintiff is in possession and enjoyment of the suit property by putting up a thatched hut in the suit property. The patta fro the suit property is also in custody of the plaintiff for long number of years, plaintiff has also obtained Electricity Service connection to the suit property in his name and the house tax also assessed in the name of plaintiff” 15. However, after impleading 4th defendant, a new para in the plaint is introduced describing fourth defendant as a stranger. 16. Having regard to the avernments in paragraph No.3 of the plaint, the submission of the learned counsel appearing for the appellant now before this Court are against pleadings. When there is no mortgage, the appellant is not entitled to set up a plea of assignment of mortgage right or treat himself as person stepping into the shoes of an unknown mortgagee as permissible in law. In the present case, no document or deed of conveyance is produced to show that the plaintiff had acquired any right in the suit property, except the oral permission granted by the respondent to be in possession of the property. 17. When the fact that the plaintiff is in enjoyment as permissive occupant is admitted, the appellant is estopped from claiming any title and seek injunction against the true owner. The admission of the plaintiff in the present case is that the appellant had cleared the encumbrance over the property earlier and was permitted to be in possession of the property. This arrangement may be a fact. However, the appellant has not documented the transaction. It is not stated that the possession was taken from the person who advanced loan to the respondent. The appellant admitted that h e was inducted into possession by respondent. This arrangement may be a fact. However, the appellant has not documented the transaction. It is not stated that the possession was taken from the person who advanced loan to the respondent. The appellant admitted that h e was inducted into possession by respondent. Strangely, the appellant has come to the Court with the suit claiming title on the basis of his enjoyment by pleading a case which is inconsistent and unsustainable to get a prayer for permanent injunction against the true owner. Though the appellant has relied upon a few judgements, this Court is unable to find any relevance or application of those judgements to the facts of this case. 18. The Courts below have concurrently held that the 4th defendant in OS.No.514/2004 is the absolute owner of the property based on the admitted facts. In the absence of any valid documents or evidence, it was further held by the Courts below that the appellant has no right to be in possession of the property or resist the suit filed by the contesting respondent. Since the findings of the Courts below are on the basis of proper appreciation of pleadings and evidence this Court is unable to find any error or infirmity in the judgement and decree of the Courts below. Accordingly both appeals are dismissed. No costs. Consequently, connected Civil Miscellaneous Petitions are closed.