Madras High Court
Kalamani vs C.Joseph Yogesh on 7 December, 2021
S.A(MD)No.421 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.421 of 2021
1.Kalamani
2.Baskar
3.Pooruna Lingam
4.Umadevi
5.Anbu Selvi
6.Ezhil Malar
7.Sri Devi ... Appellants/Appellants/Defendants
Vs.
C.Joseph Yogesh ... Respondent/ Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 23.07.2019 passed in
A.S.No.18 of 2018, on the file of the I Additional District Court,
Thoothukudi, confirming the judgment and decree dated 31.01.2018
passed in O.S.No.48 of 2011 on the file of the Subordinate Court,
Thoothukudi.
1/15
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S.A(MD)No.421 of 2021
For Appellants : Mr.S.Kadarkarai
For Respondent : Mr.M.P.Senthil
JUDGMENT
The appeal is directed against the Judgment and Decree
passed in A.S.No.18 of 2018, by the learned I Additional District Court,
Thoothukudi, confirming the Judgment and Decree in O.S.No.48 of
2011, passed by the learned Subordinate Court, Thoothukudi.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
The suit schedule property was purchased by the plaintiff on
21.09.2007 from one A.Ponmalar, wife of Anandharavikumar by way of
a registered sale deed. The defendants were residing in the above said
property along with the above said Ponmalar on payment of rent at
Rs.100/- per month. Though the above said Ponmalar vacated
immediately from the suit schedule property after the sale, the defendants
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continued to reside there. Hence the plaintiff sent a lawyer's notice on
27.09.2007 calling upon them to vacate the premises. The defendants
received the same and sent a reply on 27.10.2007 with false averments.
The suit schedule property originally belong to Late.Nallathambi Nadar,
who purchased the same from Poolayee Ammal Vagaiarah on 24.02.1975
by way of a registered sale deed. After the death of said Nallathambi
Nadar, the schedule of property was allotted to Anantharavikumar in a
family partition. The legal heirs of Nallathambi Nadar executed
themselves a Yadasthu on 22.06.1995 and the second defendant has also
signed in the said document.
4.The said Anantharavikumar has executed a registered
settlement deed in favour of his wife A.Ponmalar on 29.09.2003 settling
the property in her name. She being the owner allowed the defendants to
live along with her in the same place as a tenant on payment of Rs.100/-
as rent which was paid regularly till August 2007. The plaintiff's vendor
Ponmalar also issued a notice to the defendants directing them to vacate
the suit property and deliver vacant possession to the plaintiff but they
did not do so. Therefore, the plaintiff filed a petition under Section 10(3)
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(a)(i) of the Tamil Nadu Buildings (Lease and Rent) Control Act before
the Rent Controller / Principal District Munsif, Tuticorin in R.C.O.P.
No.3 of 2008 against the defendants and the said R.C.O.P.No.3 of 2008
was dismissed holding that the plaintiff has got valid title and the
defendants do not have any title and that the plaintiff had failed to prove
the tenancy between him and the defendants. Thereafter, the plaintiff has
filed a suit for declaration of title and recovery of possession from the
defendants, as they are only trespassers.
5.The defendants 3 to 8 adopted the written statement filed
by the defendants 1 and 2 contending inter alia that the averments made
in the plaint are false. The suit schedule property originally belonged to
the second defendant's father Nallathambi Nadar. The second defendant
is one of the daughter of Nallathambi Nadar. Hence, during the life time
of Nallathambi Nadar, the defendants are in possession and enjoyment of
the suit schedule property since 1976 and the second defendant's father
Nallathambi Nadar died during 1985. No partition was effected between
the legal heirs of Nallathambi Nadar. The plaintiff's vendor
Anandaravikumar was not allotted with a share in the suit schedule
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S.A(MD)No.421 of 2021
property. The defendants are in possession of the suit property for more
than 35 years. The findings in R.C.O.P.No.3 of 2008 regarding title of
the plaintiff over the suit property is not binding this Court and the
defendants. Anandaravikumar had no absolute right to execute
settlement deed in favour of Ponmalar. The plaintiff is also not entitled
to get title on the basis of sale deed, dated 21.09.2007 executed by
Ponmalar in favour of the plaintiff and hence, the suit has to be
dismissed with costs.
6. Before the trial Court, on the side of the plaintiff, one
Christopher was examined as P.W.1 and Exs.A1 to A10 were marked.
On the side of the defendants, the third defendant examined himself as
D.W.1 and Exs.B.1 to B.20 were marked.
7. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has decreed the suit in favour of the plaintiff
and directed the defendants to vacate the premises and deliver the vacant
possession to the plaintiff within a period of three months.
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S.A(MD)No.421 of 2021
8. Aggrieved by the Judgment and decree passed by the trial
Court, the defendants, as appellants, had filed an Appeal Suit in A.S.
No.18 of 2018, on the file of the learned I Additional District Court,
Thoothukudi. The first appellate Court, after hearing both sides and
upon reappraising the evidence available on record, had dismissed the
appeal and confirmed the Judgment and decree passed by the trial Court.
Challenging the said concurrent Judgments and decrees passed by the
Courts below, the present second appeal has been preferred at the
instance of the defendants, as appellants.
9.Heard the learned counsel for the appellants and the
learned counsel appearing for the respondent and perused the materials
available on record.
10.The learned counsel appearing for the appellants /
defendants would submit that the Courts below had erred in coming to a
conclusion that without properly examining the various documents and
evidence adduced by the parties, had dismissed the appeal. The Courts
below failed to appreciate that there is absolutely no evidence to verify,
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S.A(MD)No.421 of 2021
whether the said Yadasthu is a registered or an unregistered document, to
know its legal status and binding on the parties and the Appellate Court
ought to have interfered with the findings of the trial Court, as to the
allotment of the suit property in favour of the said Anandaravikumar, as
the respondent/plaintiff has absolutely not proved by any plausible
evidence and as a consequence, the subsequent transactions namely, the
settlement deed, dated 29.09.2003 and the sale deed, dated 21.09.2007
have no legal back up and appreciated that as per law, when the burden
of proof lies on the respondent/plaintiff for the relief sought for by him,
when the same had not been discharged by him and hence, prayed to
allow the Second Appeal.
11.The learned counsel appearing for the respondent/
plaintiff would vehemently oppose the Second Appeal by contending
that the well considered Judgments of the Courts below need not be
interfered with, as there is no question of law involved in this Second
Appeal and prayed for dismissal of the Second Appeal.
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S.A(MD)No.421 of 2021
12.This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
13.On perusal of records, it is seen that the plaintiff has sent
a legal notice on 27.09.2007, which is marked as Ex.A.7 and reply has
also been sent by the defendants on 27.10.2007, which is marked as
Ex.A.8. According to the said notice, the plaintiff has clearly stated that
on 21.09.2007, he purchased the property from one Ponmalar and the
defendants are residing there in the said suit premises by paying a sum of
Rs.100/- per month as rent and they have to vacate the same and
possession should be handed over to the plaintiff.
14. In reply, they have denied the said tenancy and also they
have stated that the property belongs to the second defendant one
Kalamani and she has got absolute right over the property from 1976
onwards and the property has been originally purchased by her father
Nallathambi Nadar and they have not stated anything more than the
same. Further, in the said reply, there was no such averments made,
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S.A(MD)No.421 of 2021
whether there was any partition and as a share holder, she is residing in
the property. But the second defendant only claimed that she is in
possession of the property for a long period and also produced some
documents regarding the payment of tax. All these documents stood in
the name of one Nallathambi Nadar in respect of Door No.142. But the
property in dispute is 141. In Door No.141, the defendants have
admitted that they are in possession of the same and all these were
proved by producing the Driving Licence, Bank Account Statements and
Post Office Pass Book. But the same will not support their case that they
are the owners and they are in possession of the said property.
15. P.W.1 was examined, who submitted that the property
belongs to one Nallathambi Nadar and they have also divided the
property by partition. In the partition, the second defendant has also
admitted that she is the daughter of Nallathambi Nadar and after
purchase, she has not vacated the property was also admitted and the
yathasthu document was executed and the second defendant has also
signed the same, as a witness. Even though, the said document was not
marked before the Court, but in the defendants side evidence, D.W.1 who
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is the third defendant in the suit, had admitted that the Nallathambi
Nadar is the grand-father of the said party and in the year 1975, he has
purchased the same and near Rani Super Market area, a place which
belongs to his grandfather, was allotted to his uncle was not even
admitted. He submitted that the property which was in his possession
was constructed by the grand-father in favour of his mother, but there
was no document produced to show that the said defendants was in
possession by absolute right by having a title over the property.
16. The second defendant in the earlier proceedings in
R.C.O.P.No.3 of 2008, examined the first defendant, as a witness
wherein, he has admitted that in the year 1995, there was a family
arrangement namely, yadasthu document in which his wife has also
signed and the same was admitted by him. To prove that she was not
occupying the said premises as a tenant, but as a co-share holder, she
cannot vacate her from the said property as there was no tenancy and
owner relationship between the parties and to prove the same, the same
was marked as Ex.A.10. Even though the defendants have denied that
there was any such document and claimed that there was no partition
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held between the parties. But the said execution of settlement deed by
one Anandaravikumar in favour of his wife and who in-turn had sold her
property to the plaintiff, would prove that only because there was a
partition. The said property was executed in favour of his wife by
settling it and she in-turn had sold it to the plaintiff, is proved.
17.Further, it is seen that the documents have been mutated
in favour of Ponmalar and later on only, the same has been sold to the
plaintiff. The plaintiff after purchasing the same, the said Ponmalar has
vacated the premises and he has also sent a legal notice for vacating the
premises, which would show that the plaintiff has proved his title to the
property. Even a claim is made that they are not tenants and they are
owning the property as a co-sharer, which was not proved by producing
any documents or let in any oral evidence.
18.Further, the defendants claimed that they are having a
possession adversely against the true owner without any interruption was
also not proved, as immediately after purchase, the plaintiff has filed
R.C.O.P.No.3 of 2008 as well as the suit, so it would prove that they
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S.A(MD)No.421 of 2021
were not in peaceful enjoyment of the property, which was disturbed or
interfered with the plaintiff acts of legal action.
19.In the written statement also, there were only mere denial
that all the averments are denied, but no proof to show that they are in
possession and enjoyment of the suit schedule property from 1976
onwards and the possession was uninterrupted and continuous. That
being the case, this Court is of the view that being in all factual aspects,
this Court is not inclined to interfere with the well reasoned order of the
Courts below.
20.It is also further to be noted that when the plaintiff has
filed a suit or sent a notice claiming right over the property, it has to be
proved by producing appropriate valid documents. The defendants have
not taken any initiative to approach the competent Court to prove their
title to the property or share in the property. They have also not shown
any material to show that they have claimed partition of the property,
which belongs to their father and against anyone of the brothers who has
also proved that they have not taken any steps only due to the admission
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of the family arrangements made and they were only in permissive
occupation of the suit premises, against the said brother
Anandaravikumar.
21.As no title to the property has been proved by the
appellant, this Court is of the view that the title to the property in favour
of the plaintiff has to be declared as absolute owner. That being the case,
this Court is not inclined to interfere with the concurrent findings of the
Courts below and also there is no question of law much less substantial
question of law involved in this Second Appeal which has to be
decided.
22. In fine, the Second Appeal is dismissed. However, there
shall be no order as to costs. The Appellants/defendants are hereby
directed to vacate the premises and hand over the vacant possession to
the respondent/ plaintiff on or before 30.03.2022.
07.12.2021
Index : Yes/No
Internet : Yes/No
rm
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S.A(MD)No.421 of 2021
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The I Additional District Court,
Thoothukudi.
2.The Subordinate Court,
Thoothukudi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.421 of 2021
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.421 of 2021
07.12.2021
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