Madras High Court
Banu vs Muthuram on 26 April, 2021
S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.No.126 of 2017
and
C.M.P.No.2651 of 2017
1.Banu
2.Rajalakshmi
3.Hemalakshmi ...Appellants
Vs
Muthuram ... Respondent
Prayer : Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgement and the decree in A.S.No.3 of 2012 dated
13.04.2016 on the file of Sub Court, Neyveli confirming the judgment and
decree dated 18.08.2008 in O.S.No.239 of 2004 before the District Munsif
Cum Judicial Magistrate, Neyveli.
For appellants : M/s.Meenal
For Respondent : Mr.V.Rajesh Babu
1/9
https://www.mhc.tn.gov.in/judis/
S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
JUDGMENT
The second appeal is filed by the legal heirs of the defendant in
O.S.No.239 of 2004 on the file of the District Munsif Cum Judicial
Magistrate, Neyveli.
2.The respondent's mother filed the suit in O.S.No.239 of 2004 on the
file of the District Cum Judicial Magistrate, Neyveli for declaration of title
and for mandatory injunction to remove the superstructure put up by the
defendants in the suit property. The suit is also for recovery of
compensation after removing the superstructure.
3.The suit property is an extent of 20 cents comprised in Suvey No.9
of 2015 in Kadallur District. It is the case of the plaintiffs that the suit
property originally belonged to the first plaintiff's mother by name
Ambuthachi. After the death of the first plaintiff's mother about 15 years
back, the property was inherited by the first plaintiff. It is also stated that
the suit property was cultivated by the plaintiff by Manavary Crops.
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S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
4. It is stated that patta was also given in favour of the first plaintiff
and that the first plaintiff is the absolute owner of the property. It was stated
that the defendant, who is the owner of the land on the south of the suit
property, was trying to encroach the property. It is further submitted that the
defendant wanted to sell the suit property by putting temporary shed on
25.07.2004. The husband of the first appellant, who was the defendant in
the suit, filed a written statement, claiming title to the property on the basis
of a oral sale obtained from one Kesavan Naidu, who is none other than the
father of the first plaintiff. The first plaintiff died and hence the suit was
prosecuted by second plaintiff.
5.The trial Court decreed the suit after holding that the plaintiffs
have established their tittle. The trial Court granted the relief of mandatory
injunction and directed the defendants to remove the superstructure within a
period of three months and to hand over possession within three months.
As against the judgment and decree of the trial court, the appellants herein
preferred an appeal in A.S.No.3 of 2012 on the file of the Sub-Court,
Neyveli. During the pendency of appeal, it is stated that the appellants filed
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S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
a petition in I.A.No.15 of 2014 in A.S.No.3 of 2012 under Order 41 Rule 27
of C.P.C to receive certain documents as additional evidence. The appellate
Court after considering the pleadings and evidence independently confirmed
the judgment and decree of the trial Court and dismissed the appeal. Against
the dismissal of appeal, the legal heirs of the defendant filed the present
second appeal.
6.The learned counsel for the appellants submitted that the appellants
filed I.A.No.15 of 2014 for receiving additional documents and the lower
Court has failed to mark those documents. He further submitted that the
burden lies on the plaintiffs to prove their tittle and that therefore, the
findings of the lower Courts shifting the burden on the defendant are
unsustainable.
7.This Court considered the submissions of the learned counsel for
the respondents and grounds raised in the appeal. At the time of admitting
the second appeal, this Court has framed the following question of law:-
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S.A.No.126 of 2017 and
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''1.Whether in law the lower appellate Court below was
right in not even referring to I.A.No.15 of 2014 filed by the
appellants for receiving additional documents which were
omitted to be marked by the counsels inadvertence?
2.Whether in law the Courts below were right in shifting
the burden on the defendant when the plaintiff had failed to
prove her case?''
Having regard to the admitted facts, this Court is of the view that the
substantial questions of law raised by the appellants have no substance.
8.First of all, the case of the plaintiffs claiming tittle through the
mother of first plaintiff is indirectly admitted by the defendant in the
written statement. In the written statement, the defendant claimed tittle to
the property on the basis of a oral sale obtained from the husband of the first
plaintiff. It is stated that the defendant's father orally purchased the property
from the husband of plaintiff. It is to be noted that the defendant has not
denied the statement in the plaint that the property originally belonged to
the mother of the first plaintiff. The defendant admits that he put up the
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S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
thatched shed only on the basis of oral sale obtained from the first plaintiff's
husband. The oral sale is not valid to convey title to the property in favour
of defendant. In the present case, the defendant has not pleaded adverse
possession. The defendant's claim regarding tittle on the basis of oral sale
has been rightly rejected by the trial Court and the appellate Court.
9.This Court does not find any error or irregularity in the findings of
the Courts below accepting the tittle of the plaintiffs. Following title, the
plaintiffs are entitled to recovery of possession and mandatory injunction as
the plaintiffs are entitled to consequential reliefs, once the title of the
plaintiffs is established. The learned counsel appearing for the appellants
submitted that the appellants filed I.A.15 of 2014 for receiving additional
documents and the lower appellate Court has not considered the documents.
The defendant has failed to establish his continuous possession or
enjoyment of the suit property. The courts below have found title in favour
of plaintiffs based on the oral and documentary evidence. It is found by the
courts below that the defendants have not pleaded or given the details about
the oral sale, particularly the date and time.
10.Though it is stated by the defendant in the written statement that
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S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
the property was in possession and enjoyment of the defendant, the Courts
below have found that the encroachment was made recently and that just
prior to the suit the defendant has put up permanent superstructure. During
the pendency of the suit, the plaintiffs have produced the documents A1 and
A2 to show that the plaintiffs are the absolute owners of the property and
that they have also proved their possession of the property earlier. The
questions of law raised by the appellants have no legal implication. Having
regard to the first question of law, it is not relevant for want of pleadings in
the written statement. The second question of law does not arise as the
plaintiffs have proved their title by documents and oral evidence.
11.Considering the facts and circumstances of this case, this Court
does not find any merits in this case. Accordingly, the second appeal is
dismissed. No Costs. Consequently, the connected miscellaneous petition is
closed.
26.04.2021
tta
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
https://www.mhc.tn.gov.in/judis/
S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
To,
1.Sub Court, Neyveli
2.District Munsif Cum Judicial Magistrate, Neyveli.
https://www.mhc.tn.gov.in/judis/
S.A.No.126 of 2017 and
C.M.P.No.2651 of 2017
S.S.SUNDAR,J.,
tta
S.A.No.126 of 2017
and
C.M.P.No.2651 of 2017
26.04.2021
https://www.mhc.tn.gov.in/judis/
