Madras High Court
B.Sivakumar vs G.Subramanian on 19 February, 2021
S.A. No.31 of 2021, dt.19.02.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.02.2021
CORAM
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
Second Appeal No.31 of 2021
and
Cmp.No.839 of 2021
B.Sivakumar ... Appellant
Versus
G.Subramanian ... Respondent
Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 20.03.2020 made in
A.S.No.34 of 2017 passed by the Learned Subordinate Judge, Tiruvarur,
Thiruvarur District by confirming the Judgment and Decree dated
16.08.2017 made in O.S.No.144 of 2014 passed by the learned District
Munsif, Tiruvarur, Tiruvarur District.
For Appellant : Mr.R.Senbagaraman,
for M/s.Jerry VV.Sundar
JUDGMENT
The second appeal has been filed challenging the Judgment and
and Decree dated 20.03.2020 made in A.S.No.34 of 2017 passed by the
learned Subordinate Judge, Tiruvarur, Thiruvarur District by confirming
the Judgment and Decree dated 16.08.2017 made in O.S.No.144 of 2014
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S.A. No.31 of 2021, dt.19.02.2021
passed by the learned District Munsif, Tiruvarur, Tiruvarur District.
2.The learned counsel for the Appellant submitted that this appeal
has been filed challenging the concurrent judgements passed by the Courts
below.
3.The case of the appellant/ defendant is that his father had entered
into the Sale agreement in the year 2007 with the wife of the
respondent/plaintiff. During the year 2007 possession was handed over to
the appellant and he is in possession and enjoyment of the property as on
today. Further he submitted that the mortgage deed also executed by the
wife of the plaintiff/respondent for cultivating the land having
measurement of 1.02 hectare for two fasli years. Thereafter, his wife
handed over the property to the appellant for cultivating the property and
till date, the possession is with the appellant.
4.At this juncture, the respondent herein filed the suit as if the
appellant forcefully entered into the property in the year 2007, whereas,
respondent's wife handed over the property in the year 2007 by entering
into a sale agreement with the appellant's father. However, both the Court
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S.A. No.31 of 2021, dt.19.02.2021
below have not considered the above Sale agreement as well as Mortgage
Deed executed by the wife of the respondent.
5.Further, he submitted that the sale price was fixed for the suit
property as Rs.99,450/- out of which Rs.55,000/- was paid at that time of
entering the Sale agreement on 20.04.2006. A sum of Rs.15,000/- was paid
on 02.06.2007. The respondent also admitted that the ownership of the
property vests with the appellant's father and the possession was honestly
handed over to the father of the appellant by the wife of the respondent.
Therefore, the allegation that he has entered into the land forcefully or
encroached the land is not correct.
6.The learned counsel further submitted that the sale agreement
was executed in the year 2007, the suit for specific performance was filed
in the year 2017 but this aspect has also not been considered. Therefore, the
Second Appeal filed against the judgment and decree of both the Courts
below suffers with infirmities and thus he pleaded this Court to admit the
appeal on the following substantial questions of law:
“1.Whether the 1st Appellate Court is right in
holding that the suit schedule property must be delivered
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S.A. No.31 of 2021, dt.19.02.2021
judgement and decree of the Trial Court?
2.Whether the 1st Appellate Court is right in holding
that the Judgment and Decree dated 16.08.2017 made in
O.S.No.144 of 2014 is valid in law?
3.Whether the 1st Appellate Court is right in
confirming the Judgement and Decree even after the
submission of sale agreement and mortgage deed executed in
favour of the Appellant's father?
4.Whether the 1st Appellate Court is right in
confirming the Judgment and Decree of the Trial Court
stating that the Respondent is the lawful owner of the
property?
5.Whether the 1st Appellate Court is right in not
having given credence to the sale agreement and mortgage
deed submitted by the Appellant?
6.Whether the 1st Appellate Court is right in
confirming the Judgment and Decree of the Trial Court to
hand over the property to the Respondent without
considering the mortgage deed and sale agreement which
would prove that the Appellant is not an encroacher?
7.Whether the 1st Appellate Court is right in holding
that the Respondent is entitled to the reliefs as sought for in
the suit?
8.Whether the 1st Appellate Court is right in having
dismissed the 1st appeal?
9.Whether the 1st Appellate Court is right in not
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S.A. No.31 of 2021, dt.19.02.2021
regard to the sale agreement executed by the Respondent and
the amounts received by him from the Appellant's Father? ”
7.Heard the learned counsel for the appellant and perused the
materials available on record.
8.The admitted fact in the present case is that the subject property
belongs to the respondent. Though the appellant referred two documents
viz., Sale agreement, dated 20.04.2006 and Mortgage Deed said to have
been executed by the wife of the respondent, he has not marked those
documents to substantiate his case.
9.Both Courts below after perusing the deposition of PW1, DW1,
DW2 and DW3 and also taking into consideration of the exhibits Ex.A1 to
A8 in a categorical manner come to the conclusion that the possession was
not handed over by the wife of the respondent and it was forcefully entered
into by the appellant. Further the Courts have also come to the conclusion
that though the two documents namely Sale agreement and Mortgage deed
were relied on by appellant, he has not taken any steps to mark the same
before the Court below. The Courts below have come to the conclusion that
the property was not handed over by the plaintiff but enjoyed by the
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S.A. No.31 of 2021, dt.19.02.2021
defendant with the permission of the plaintiff. The appellant/defendant has
filed two documents Ex.B1 and B2 before the Court below. After a
thorough analysis, the Courts below come to the conclusion that these two
documents is not sufficient to prove that the possession was handed over by
the respondent legally to enjoy the property by the defendant/appellant
peacefully. Upon analysing, the exhibits and evidences and hearing both
sides and taking into account of the judgment of both the Appellate Court
as well as the Trial Court, this Court is of the opinion that the defendant
failed to establish that the possession was handed over by the plaintiff to
him. The First Appellate Court after analysing the judgment and decree of
the Trial Court had categorically held that there is no error on the judgment
and decree passed by the Trial Court and confirmed the same.
10.This Court also perused the judgment of both the Courts below
and this Court does not find any material evidence to substantiate their
contention of the appellant and as such, I do not find any illegalities,
irregularities or perversity in the judgment and decree passed by both the
Courts below. Further, this Court does not find any substantial questions of
law that arises for consideration as proposed by the Appellant and also in
the additional grounds filed by him. Hence, the Second Appeal is liable to
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S.A. No.31 of 2021, dt.19.02.2021
be dismissed.
11.Accordingly, the Second Appeal is dismissed, by confirming
the Judgment and Decree dated 20.03.2020 made in A.S.No.34 of 2017
passed by the Learned Subordinate Judge, Tiruvarur, Thiruvarur District,
confirmed by the Judgment and Decree dated 16.08.2017 made in
O.S.No.144 of 2014 passed by the learned District Munsif, Tiruvarur,
Tiruvarur District. No costs. Consequently, the connected miscellaneous
petition is closed.
19.02.2021
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
klt
To
1. The Subordinate Judge, Tiruvarur, Thiruvarur District.
2. The District Munsif, Tiruvarur, Tiruvarur District.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
S.A. No.31 of 2021, dt.19.02.2021
KRISHNAN RAMASAMY.J.,
klt
S.A.No.31 of 2021
and
Cmp.No.839 of 2021
19.02.2021
https://www.mhc.tn.gov.in/judis/
