Madras High Court
Babu @ Sheik Khader ...Defendant/ vs Noorjahan on 20 April, 2021
S.A.No.375 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.04.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.375 of 2009
Babu @ Sheik Khader ...Defendant/Appellant/Appellant
Vs.
1.Noorjahan
2.Shamshad
3.John Basha ...Plaintiffs/Respondents/Respondents
Prayer: Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 24.10.2008 in
A.S.No.86 of 2005 on the file of the learned I Additional Sub
Judge, Villupuram, confirming the Judgment and Decree dated
16.06.2005 in O.S.No.281 of 2002 on the file of the learned
Principal District Munsif, Villupuram.
1/12
S.A.No.375 of 2009
For Appellant : Ms. Meenal
For Respondents : Mr.N. Suresh for R2 and R3
R1 - Served - No appearance
JUDGMENT
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,
S.A.No.375 of 2009
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
S.A.No.375 of 2009
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.
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
S.A.No.375 of 2009
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.
S.A.No.375 of 2009
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.
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.
S.A.No.375 of 2009
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.
S.A.No.375 of 2009
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:
"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;
S.A.No.375 of 2009
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
S.A.No.375 of 2009
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.
20.04.2021
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
mps
To
S.A.No.375 of 2009
1.The I Additional Sub Judge,
Villupuram.
2.The Principal District Munsif,
Villupuram.
P.T. ASHA. J,
mps
S.A.No.375 of 2009
S.A.No.375 of 2009
20.04.2021
