Duraikannu Udayar (Died) vs Kuppusami Udayar (Deceased)
2021 Latest Caselaw 13657 Mad

                                                                              S.A.No.548 of 2011

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 09.07.2021

                                                    CORAM
                                        THE HON'BLE Ms.JUSTICE P.T.ASHA

                                                S.A.No.548 of 2011
                                                       and
                                                 M.P.No.1 of 2011

                     1.Duraikannu Udayar (died)

                     2.Sudhakar

                     3.D.Kumari

                     4.D.Prabakar

                     5.Vanitha                                       ... Appellants

                     [2nd Appellant is Legal Representative
                     of the deceased 1st appellant vide
                     Court Order dated 19.04.2021 in
                     C.M.P.No.127/21 in S.A.No.548/11 (PTAJ)]

                     [Appellants 3 to 5 are brought
                     on record as Legal Representatives
                     of the deceased 1st appellant vide
                     Court order dated 19.04.2021
                     made in C.M.P.No.128 / 2021
                     in S.A.No.548/11 (PTAJ)]




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                                                                               S.A.No.548 of 2011

                                                        Vs

                     1.Kuppusami Udayar (Deceased)

                     2.Porkalai

                     3.Valli

                     4.K.Kumar

                     5.V.Selvi                                        ... Respondents

                     [RR2 to 5 brought on record
                     as Legal Representatives of the
                     deceased sole Respondent vide
                     Order of Court dated 22.07.2014
                     made in M.P.Nos.1 and 2 of 2013]

                     PRAYER : Second Appeal is filed under Section 100 of code of Civil

                     Procedure against the judgment and decree dated 23.09.2010 passed in

                     A.S.No.62 of 2010 on the file of the Principal District Court, Villupuram

                     reversing the judgment and decree dated 31.08.2009 passed in

                     O.S.No.471 of 2006 on the file of the Principal District Munsif's Court,

                     Villupuram.

                                   For Appellants         : Mrs.R.Meenal

                                   For Respondents        : Mr.N.Suresh




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                                                                                      S.A.No.548 of 2011

                                                     JUDGMENT

The defendants have filed the above Second Appeal challenging

the Judgment and Decree of the learned Principal District Judge,

Villupuram, whereby, the learned Judge had allowed the appeal filed by

the plaintiff and reversed the Judgement and Decree of the learned

Principal District Munsif, Villupuram in O.S.No.471 of 2006.

2. The parties are referred to in the same litigative status as before

the trial Court.

Plaintiff's case:

3. The plaintiff has filed a suit for a declaration of his title to the

suit property and for a direction to the defendants to deliver the

possession of the suit property. The property in question is an extent of

5 ¼ cents out of a total extent of 10.88 acres in S.No.130/1 of Veeramur

Village, Villupuram. The plaintiff would contend that he had purchased

the suit property from one Balambal under the registered Sale Deed dated

23.09.1978 for a valuable consideration of Rs.1000/-. The plaintiff had

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been using the said premises for storing manure and stacking hay etc.,

Thereafter, he had constructed a hut and was residing there along with

his family. The roof of the hut was made up of dry sugarcane leaves and

therefore, the plaintiff had to constantly replace the same and that apart

the side mud wall also started crumbling which necessitated the plaintiff

to move out from the suit premises. He therefore, shifted to the residence

of his brother-in-law, who lived close by.

4. Meanwhile, the 1st defendant who was a distant relative of the

plaintiff's wife requested permission to store cement bags in the suit

premises as he was constructing a house nearby. The said permission was

also given by the plaintiff. The permission was given to the 1 st defendant

in the year 2002. The 1st defendant had also completed his construction in

or around the middle of 2004 and the plaintiff was under the genuine

impression that the property would be delivered back to him. However,

the 1st defendant did not hand over the possession, but on the contrary,

had put his son, the 2nd defendant in possession of the property. The

2nd defendant put up a thatched hut in the said premises after the plaintiff

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had requested the 1st defendant to vacate the premises vide legal notice,

dated 26.07.2006. Therefore, the plaintiff has been constrained to file the

suit in question especially considering the reply sent by the defendants

dated 24.08.2006.

Written Statement of the 1st defendant:

5. The defendants had stoutly denied the claim of the plaintiff that

he was the owner of the suit property. It is the case of the 1st defendant

that the suit property being a Grama Natham was their ancestral property

and that his predecessor in title and himself has been in possession and

enjoyment of the suit property and enjoying the same as a cattle shed

originally. Thereafter, the 1st defendant would submit that he had put up a

thatched house in the suit property, in the year 1988 after he had removed

the cattle shed. The 1st defendant admitted that he had shifted to a new

residence and he would contend that his son Sudhakar continued to be in

possession of the suit property and tax was assessed in the name of his

son. The plaintiff, according to the defendants had no title or right to the

suit property and the suit has been motivated only on account of the fact

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that the defendants had refused to convey the property to the plaintiff.

Therefore, he had sought for dismissal of the suit.

6. The learned Principal District Munsif had framed the following

issues :

1. Whether the plaintiff is entitled to obtain possession of the suit property from the defendants through Court without any obstructions?

2. Is it correct to state that the 1st defendant has acquired title of the suit property through adverse possession ?

3. Whether the defendants are liable to pay past mesne profits of Rs.1000/- to the plaintiff ?

4. Whether the plaintiff is entitled to get future mesne profits from the defendants, under Order 20 Rule 12 C.P.C.,?

7. The plaintiff examined himself as PW1 and his vendor Balambal

was examined as PW2 and marked Exhibits A1 to A8. On the side of the

defendants, the 1st defendant examined himself as DW1 and one

Subramanya Udayar and Devaraj were examined as DW2 and DW3

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respectively. Exhibits B1 to B3 were marked in support of the

defendants' case.

8. The trial court dismissed the suit holding that the plaintiff has

not been able to establish his possession of the suit property. The learned

Judge held that the defendants had proved possession by examining

DW2 and DW3 and the plaintiff has failed to establish his prima-facie

case that he had permitted the defendants to reside in the suit property.

9. The appellate Court on a detailed consideration of the evidence

both oral and documentary, allowed the appeal and reversed the

judgment and decree of the trial Court.

Second Appeal:

10. The Second Appeal was admitted on 03.09.2020 on the

following substantial questions of law:

1) Whether in law the lower appellate Court was

right in failing to see that the respondent not being the

https://www.mhc.tn.gov.in/judis/ S.A.No.548 of 2011

owner of the suit property committed fraud on court vide

1994 1 SCC page 1?

2) Whether in law the lower appellate Court was

right in holding that the appellants were in permissive

possession without any proof and in granting a decree for

mesne profits?

Submissions:

11. Mrs.R.Meenal, learned counsel appearing on behalf of the

appellants/Defendants would submit that the plaintiff has not proved his

case that he had put the 1st defendant in permissive occupation of the suit

property. On the contrary, the defendants have been in possession of the

suit property from time immemorial the same being their ancestral

property. To prove their possession, Exhibits B1 to B3 which are the

receipts from the year 2001 to 2006 has been marked. She would also

draw the attention of the Court to the finding of the trial Court that the

plaintiff had miserably failed to prove their case and the plaintiff, who

had come forward with a case that the suit property was a vacant site, had

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produced house tax receipts which only went to prove that the plaintiff

has not come to Court with clean hands. That apart, the document does

not relate to the suit property and does not even contain a door number.

On the contrary, the documents submitted on the side of the defendants

would describe the property as Door No.1/14. The counsel would further

submit that the plaintiff has not come forward with a definite case, since

he had produced Ex.A8, only after the evidence of PW1 had been

completed by filing an application. She would further contend that from

the evidence of PW1, it is clear that the property purchased by the

plaintiff from Balambal had been sold by him and therefore, he has no

right to the said property. She would highlight the following evidence of

PW1, the plaintiff.

''nkw;go TiuahdJ fUg;gd;nrhiyahy;

nghlg;gl;lJ vd;why; rhpay;y/ nkw;go tPL tlf;F

ghh;j;jJ/ mJ <!;tud; nfhtpy; bjUtpy; cs;sJ/

v';fsJ <!;tud; nfhtpy; bjUtpy; tlrwFspy; cs;sJ/

vdJ tPlo; w;Fk; 3. 4 tPLfs; js;sp vdJ kr;rhdpd;

https://www.mhc.tn.gov.in/judis/ S.A.No.548 of 2011

tPL cs;sJ/ vdf;F brhe;jkhd TiutPli ; l khrpehjd;

vd;gth;f;F fpiuak; bfhLj;J tpl;nld;/ Rkhh; 3

tUl';fSf;F Kd;ghf fpiuak; bfhLj;njd;/ vdJ

kr;rhd; jz;lghdp ghz;oapy; cs;shh;/ vdnt mtuJ

tPlo; y; ehd; FoapUe;J tUfpnwd;/ tlf;F brhj;jpw;F

nkw;fhy; gpujpthjpfs; tifawhtpw;F 57 mo brhj;J

,Uf;fpwJ vd;why; rhpjhd;/''

12. Therefore, she would submit that the plaintiff has come

forward with a false case. She would further submit that the Appellate

Court has ignored the documents filed on the side of the defendants to

prove their possession and has erroneously concluded that the defendants

have not proved their possession.

13. Per contra, Mr.N.Suresh, learned counsel appearing on behalf

of the plaintiff would submit that the plaintiff has proved his title to the

suit property by marking Ex.A8 – Sale Deed, which is of the year 1936

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(25.08.1936) in and by which, the property had been purchased by the

husband of the plaintiff's vendor Balambal. He has also marked Ex.A1

dated 23.09.1978, which is the sale deed executed by Balambal in favour

of the plaintiff. The suit property being a vacant site title would follow

possession. He would draw the Court's attention to the pleadings in his

plaint, wherein, the plaintiff has submitted that the property was being

originally used for storing manure and stacking hay and thereafter, it is

only a hut with a roof of sugarcane leaves. He would further submit that

to prove title, his vendor was also examined as PW2, who has adduced

evidence to the effect that the property belonging to her husband

Rangasamy, by virtue of the purchase in the year 1936 vide Ex.A8. PW2,

in her cross-examination, clearly stated that the 1st defendant had entered

possession of the suit property only after the sale in favour of the

plaintiff. He would further argue that the defendant who has pleaded

adverse possession has not let in a shred of evidence to prove possession

for the statutory period. He would submit that the lower Appellate Court

has rightly reversed the judgment and decree of the trial Court and the

same should be sustained.

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Discussion:

14. Heard the learned counsel on either side and perused the

records.

15. The plaintiff has come forward with the case the he is the

owner of the property on the strength of Ex.A1 – Sale Deed. The plaintiff

has marked the Sale Deed as well as the prior documents of title, namely,

the Sale Deed of the year 1936. The suit property has been described as a

vacant site. In the Sale Deed, the plaintiff's case is that he had been

originally using the said property to store manure and stack hay and that

had permitted the 1st defendant to store cement bags in the premises for a

short period of time. The plaintiff has also put up a hut, but, since the

roof had to be frequently changed, the plaintiff had vacated the property

and proceeded to live in his brother-in-laws property which was close by.

The title to the property has been proved by the plaintiff by marking

Exs.A1 and A8 and examining PW2. The defendants have come forward

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with a case that the property is the ancestral property and they have been

in possession of the same for time immemorial. However, the defendants

have also pleaded adverse possession, thereby acknowledging the right

of the plaintiff to the suit property.

16. Considering the fact that they have pleaded adverse possession,

the documents filed on the side of the defendants are to be examined. The

defendants had produced the documents only from the year 2001, which

is just five years prior to the filing of the suit by the plaintiff. Apart from

the three tax receipts, no other documents have been filed on the side of

the defendants. The trial Court has held that the defendants have proved

their possession by examining DW2 and DW3. DW2 is the relative of the

1st defendant and therefore, an interested witness. DW2 would depose

that he is not aware that the property originally belonged to Duraikannu

and thereafter, to his son. As regards DW3, in his cross-examination, he

clearly deposed that he does not know where the suit property is situate.

The trial Court has therefore, considered only the tutored chief-

examination and has not taken note of the admissions in cross, this has

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led to the learned Judge coming to the erroneous conclusion that

possession of the defendants has been proved by DWs 2 and 3.

Therefore, the appellants/defendants have not proved their case that the

property is an ancestral one in which they are in possession for the

statutory period of time. The appellants have failed to prove title to the

property. Therefore, I do not find any infirmity in the judgment and

decree of the lower Appellate Court and therefore, the substantial

question of laws answered against the appellants.

17. In fine, the Second Appeal is dismissed and the judgment and

decree dated 23.09.2010 in A.S.No.62 of 2010 on the file of the Principal

District Court, Villupuram, is confirmed. No order as to costs.

Consequently, connected miscellaneous petition is closed.

09.07.2021 Index:Yes/No Internet:Yes Speaking / Non-Speaking Order ssn

https://www.mhc.tn.gov.in/judis/ S.A.No.548 of 2011

To

1. The Principal District Court, Villupuram.

2. The Principal District Munsif's Court, Villupuram.

https://www.mhc.tn.gov.in/judis/ S.A.No.548 of 2011

P.T.ASHA, J.,

ssn

S.A.No.548 of 2011 and M.P.No.1 of 2011

09.07.2021

https://www.mhc.tn.gov.in/judis/