P.Radhakrishnan Nair vs Ponnambath Kunhimoosa
2021 Latest Caselaw 13686 Mad

                                                                              S.A.No.395 of 2014

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 09.07.2021

                                                    CORAM

                                   THE HON'BLE MR.JUSTICE C.SARAVANAN

                                               S.A.No.395 of 2014
                                                      and
                                                M.P.No.1 of 2014

                 P.Radhakrishnan Nair                                ... Appellant

                                                      Vs.

                 1.Ponnambath Kunhimoosa
                 2.Ponnambath Zubair                                 ... Respondents

                        Second Appeal filed under Section 100 of C.P.C., against the
                 Judgment and Decree dated 17.02.2012 made in A.S.No.14 of 2011 on
                 the file of II Additional District Judge, Pondicherry confirming the
                 Judgment and Decree dated 04.03.2011 made in O.S.No.3 of 2008 on the
                 file of Subordinate Judge, Mahe.

                                   For Appellant   : Mr.T.Sathiyamoorthy
                                   For Respondents : Mr.S.Sudharshan



                                                  JUDGMENT

This appeal has been filed by the plaintiff who is the appellant

herein, remains unsuccessful both before the Trial Court and before the

First Appellate Court.

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2. The appellant/plaintiff herein had originally filed O.S.No.3 of

2008 before the Subordinate Judge Court at Mahe for a permanent

injunction to restrain the respondents from interfering with his peaceful

possession in the suit schedule property.

3. The case of the appellant/plaintiff before the Trial Court

originally was that there was an oral sale agreement between the

appellant/plaintiff and the first respondent/first defendant who is the

owner of the suit schedule property and that he has parted with a sum of

Rs.54,000/-. Since the possession was put with the appellant/plaintiff, no

sale deed was executed.

4. The respondents/defendants had defended the proceedings

stating that neither there was any oral agreement nor any consideration

paid by the appellant/plaintiff. Under these circumstances, the

appellant/plaintiff filed I.A.No.435 of 2008, to include another relief for

specific performance by directing the first respondent/first defendant to

register the sale deed in favour of the appellant/plaintiff.

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5. The Trial Court after considering the evidences on record

dismissed the suit filed by the appellant/plaintiff not only for specific

performance but also for the relief of permanent injunction which was

originally claimed, when the suit was filed on 14.01.2008. The Trial

Court also noted that the alleged oral sale agreement was on 14.09.1992

but the appellant/plaintiff had filed the suit belatedly and therefore, in

terms of Article 54 of the Limitation Act, 1963, the suit was hopelessly

time barred. The First Appellate Court has also confirmed the above

relief expressed by the Trial Court.

6. In this appeal, the appellant/plaintiff has questioned the wisdom

of the Trial Court and that of the Appellate Court rejecting the prayer of

the appellant/plaintiff for permanent injunction and for the relief of

specific performance albeit to direct the first respondent/first defendant

to include the sale agreement in favour of the appellant/plaintiff on the

strength of oral sale agreement dated 14.09.1992.

7. Appearing on behalf of the appellant, the learned counsel for the

appellant/plaintiff submits that the original title documents of the suit

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schedule property is in possession of the appellant/plaintiff, has not been

disputed by the respondents/defendants. It is further submitted that the

appellant/plaintiff had dug up a well which was also not disputed by the

respondents/defendants and therefore submits that the appellant/plaintiff

was entitled to the relief of permanent injunction and for specific

performance by way of a direction to the first respondent/first defendant

to execute the sale deed in favour of the appellant/plaintiff.

8. Defending the impugned Judgment and decree, the learned

counsel for the respondents/defendants submits that the decision of the

Trial Court and that of the First Appellate Court are well-reasoned and

requires no interference.

9. Both the Trial Court and the Appellate Court have weighed the

evidence and have come to the correct conclusion and rejected the relief

as prayed by the appellant/plaintiff.

10. Heard the learned counsel for the appellant and the

respondents. I have perused the impugned Judgment and decree.

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11. The appellant/plaintiff has not produced any evidence to prove

that he has paid a sum of Rs.54,000/- for which, the first respondent/first

defendant had issued the receipt. On the other hand, the

respondents/defendants have taken a specific plea before the Trial Court

that the appellant/plaintiff was authorized to merely collect the title deed

of the suit schedule property in Ex.A1-Original Assignment Deed. Be

that as it may, the fact is that the suit was filed almost 16 years after the

alleged oral agreement dated 14.09.1992 which remains uncontroverted.

12. The averments in the plaint that the appellant/plaintiff has

perfected the title by way of adverse possession is diametrically opposite

with the case for specific performance. If the appellant/plaintiff is in

possession of the suit schedule property, it is for the

respondents/defendants to initiate appropriate proceedings in accordance

with law to reclaim possession from the appellant/plaintiff. However,

that would not entitle the appellant/plaintiff to either the relief for

specific performance or for permanent injunction.

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13. If the appellant/plaintiff is already in possession of the suit

schedule property, he cannot be dispossessed of the suit schedule

property, except in accordance with law.

14. Therefore, no substantial questions of law arises for

consideration in this appeal.

15. This Second Appeal stands dismissed with the above

discussions. No costs. Consequently, connected Miscellaneous Petition

is closed.

09.07.2021

arb Internet : Yes / No Index : Yes/No Speaking Order/Non-speaking Order

To:

1.The II Additional District Court, Pondicherry.

2.The Subordinate Judges Court, Mahe.

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C.SARAVANAN, J.

arb

S.A.No.395 of 2014 and M.P.No.1 of 2014

09.07.2021

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