Madras High Court
Parasmal vs ) K.V.Lakshmana Gounder on 20 July, 2021
S.A.No.726 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2021
CORAM:
THE HON'BLE Ms.JUSTICE P.T.ASHA
S.A.No.726 of 2009
and M.P.No.1 of 2009
Parasmal ... Appellant/ Respondent /
plaintiff
Vs.
1) K.V.Lakshmana Gounder
2) L.Mohanasundaram ... Respondents/ Appellants/
defendants 1 & 2
3) M.Chinthamani ... Respondent/ defendant-3
*Cause title accepted vide Order of Court dated 03.07.2009 made in M.P.No.1 of
2009.
PRAYER: Second Appeal is filed under Section 100 of Code of Civil
Procedure against the Judgment and Decree passed by the learned
Principal Subordinate Judge, Coimbatore made in A.S.No.49 of 2008
dated 11.08.2008 reversing the Judgment and Decree passed by the
learned Principal District Munsif, Coimbatore made in O.S.No.2229 of
2006 dated 28.01.2008.
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S.A.No.726 of 2009
For Appellant : Dr.C.Ravichandran
For RR 1 & 2 : Mr.Hariharan,
for Mr.V.Nicholas
For R-3 : No Appearance
******
JUDGMENT
The plaintiff is the appellant before this Court. The Second Appeal
is filed challenging the Judgment and Decree made in A.S.No.49 of
2008 by the learned Principal Subordinate Judge, Coimbatore reversing
the Judgment and Decree of the learned Principal District Munsif,
Coimbatore made in O.S.No.2229 of 2006.
2. The facts in brief, which are necessary for disposing of the
above Second Appeal are as follows:
(i) It is the case of the plaintiff that he had purchased the suit
property which is an extent of 0.51 3/4 ares of Punja lands comprised in
S.No.504/2B of Pannimadai Village, Coimbatore North Taluk bearing
Patta No.188 within the specified boundaries. The said property was
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S.A.No.726 of 2009
purchased by the plaintiff from one Mrs.Teresa Simon, under a registered
Sale Deed dated 26.11.2004 and under the Sale, his vendor has put him
in possession and enjoyment of the property. Pursuant to the purchase,
the plaintiff has also mutated the revenue records in his name. At the
time of purchase, the suit property was being managed and looked after
by defendants 1 and 2 for and on behalf of Teresa Simon, who is a
permanent resident of Kerala.
(ii) The defendants 1 and 2, who are the neighbouring land owners,
were very much interested in purchasing the suit mentioned property.
After the plaintiff had purchased the property, the defendants 1 and 2
started interfering in his possession and enjoyment of the suit property.
They started preventing the plaintiff from entering the suit property and
carrying on with the agricultural activities. On 30.08.2006, he was
physically prevented from entering into the property, however, the
attempt failed with the help of neighbours. However, the defendants have
threatened to continue with the obstruction. Hence, the suit.
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S.A.No.726 of 2009
3. The defendants 1 and 2 have filed a written statement in which
they would contend that they have been inducted as a lessee in respect of
the suit property by the uncle of Mrs.Teresa Simon, one
Mr.Kumarasamy Gounder, under a Oral Lease Agreement, as early in the
year 1979. At the time of entering the lease, the second defendant has
paid a sum of Rs.20,000/- as rent for the entire period of 40 years.
4. Thereafter, Mr.Kumarasamy Gounder had sold the property to
Mrs.Teresa Simon, the plaintiff's vendor and at the time of the execution
of the sale in favour of Mrs.Teresa Simon, the lease in favour of the
second defendant was informed and Mrs.Teresa Simon also
acknowledged the lease in favour of the defendants. However,
Mrs.Teresa Simon had started interfering with the possession and
enjoyment of the property by the defendants. The second defendant;
therefore had filed an application before the Coimbatore North Taluk
Tahsildar and Record Officer in T.R.No.3/2004 to record him as a 'tenant'
in respect of the suit property. Thereafter, the said Mrs.Teresa Simon had
sold the property to the plaintiff solely with a view of evicting the second
defendant under one pretext or the other.
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S.A.No.726 of 2009
5. The Learned Principal District Munsif, Coimbatore had framed
the following issues:
"1. thjp tHf;Fiuapy; nfhhpago. gpujpthjp fl;L vjpuhf
tpsk;g[if kw;Wk; epue;ju cWj;Jf; fl;lisg; ghpfhuk;
bgwj;jf;ftuh>
2. jhthr; brhj;J gpujpthjpfspd; mDgt Rthjpdj;jpy;
,Ug;gjhf brhy;yg;gLtJ rhpah>
3. thjp bgwj;jf;f ,ju ghpfhuk; vd;d> "
6. The plaintiff had examined himself as P.W.1 and marked Ex.A1
to Ex.A4. On the side of the defendants, the second defendant had
examined himself as D.W.1 and one A.Palanichamy as D.W.2 and
marked Ex.B1 to Ex.B6 through D.W.1 and Ex.B7 to Ex.B10 through
D.W.2. The learned District Munsif, ultimately decreed the suit as prayed
for, against which, the defendants 1 and 2 have filed A.S.No.49 of 2008
on the file of the Appellate Authority, Coimbatore. The Appellate Court
reversed the Judgment and Decree of the Trial Court and aggrieved by
this Judgment and Decree, the plaintiff is before this Court.
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S.A.No.726 of 2009
7. Dr.C.Ravichandran, learned counsel appearing on behalf of the
plaintiff would submit that the plaintiff has proved both the title as well
as possession wherein, the title has been proved by marking Ex.A1 and
Ex.A2 and possession by marking Ex.A3 and Ex.A4, which are the patta
and chitta that would clearly show that the plaintiff is in possession of
the said property. He would argue that there is absolutely no evidence on
the side of the defendants to show their possession of the suit property as
a tenant. In fact, it is his argument that tenancy has not been proved at all
and the petition in T.R. No.3 of 2004 which has been marked as Ex.D6 is
not a certified copy of the application and the filing of the same has not
been independently proved by the defendants. He would submit that the
property, being a vacant land, once title is established, the lower
Appellate Court was wrong in reversing the well considered Judgment
and Decree of the trial Court.
8. Per contra, Mr.Hariharan, learned counsel appearing on behalf
of the defendants would submit that the defendants have not staked any
right to the suit property except that they have been in enjoyment of the
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S.A.No.726 of 2009
property as a tenant right from 1979 under the original owner
Mr.Kumaraswamy Gounder and their possession be protected. He would
further argue that this fact has been accepted by the plaintiff in their
pleading wherein they have stated that the defendants were in possession
of the property at the time of his purchase.
9. He would argue in order to get over the fact that the defendants
have moved the Authority for having themselves recorded as a
cultivating tenant, the plaintiff has now taken a stand that the defendants
were only the 'Care Takers' of the property. That apart, they have not
examined their vendors to speak about the possession of the property by
the defendants. He would submit that all these factors have been taken
note of by the Appellate Court and therefore, no exemption can be taken
to the Judgment and Decree of the Lower Appellate Court, Coimbatore.
10. Heard the learned counsels appearing on either side and
perused the records.
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S.A.No.726 of 2009
11. The plaintiff has come forward with a case for declaring his
title and for an injunction. In support of the contention that he is the
owner of the property, he has filed the Sale Deed in his favour as well as
the Parent document, namely the Sale Deed dated 28.05.1981 executed
by the said Mr.Kumarasamy Gounder in favour of Mrs.Terasa Simon. As
regards the possession, the following statements in the Plaint have to be
taken note of. In Paragraph nos.5 and 6, the plaintiff has stated as
follows:-
"5. At the time of purchase of the suit mentioned
property was managed looked after on behalf of the
above said Mrs.Teresa Simon by the 1st and 2nd
defendant as she was permanently residing in the state of
Kerala, as adjacent land owners with permission from
the plaintiff.
6. The 1st and 2nd defendant owning lands
adjacent to the suit mentioned property, were very much
interested in purchasing the suit mentioned property.
Taking advantage of the vendor residing in Kerala, the
1st and 2nd defendants were demanding sale at a lower
level price."
12. Therefore, the plaintiff has in a very clear and categoric terms
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S.A.No.726 of 2009
admitted that at the time of his purchase, the defendants were in possession of
the property, though it is his statement that they were in possession as 'Care
Takers'. There is no pleading to show as to when the defendants have handed
over the possession to the plaintiff. In fact, in his cross examination, the
plaintiff has admitted the following:-
"......nkw;go brhj;J ,uz;lhtJ gpujpthjp trk; fle;j 28
Mz;Lfshf ,Ue;J tUfpwJ/"
13. Therefore, in no uncertain terms, the plaintiff has admitted the
defendants being in possession of the suit property. The defendants would
contend that they are in possession of the suit property in their capacity as a
lessee. To support this contention, Ex.P.6 has been filed which is an
application that has been filed before the Tahsildar and Record Officer,
Coimbatore. The plaintiff in this application seeks to have his tenancy
recorded. The filing of this application has been mentioned by the plaintiff
in his Written Statement at Paragraph No.6. There is no rebuttal to the above
statement or to the documents that have been filed. In fact, the plaintiff has not
deemed it fit to cross-examine the defendants with reference to this application.
14. Considering the fact that the plaintiff has proved his title to the
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S.A.No.726 of 2009
property by marking Ex.A1 and Ex.A2, the Lower Appellate Court was
wrong in dismissing the suit in toto. The Appellate Court ought to have
declared the plaintiff's title to the property more so, when the same has
not been disputed by the defendants. However, with reference to
possession, by considering the fact that the plaintiff has himself admitted
the continued possession of the defendants, the plaintiff is not entitled to
the decree of possession. It is needless to state that it is open to the
plaintiff to evict the defendants in the manner known to Law.
15. In fine, this Second Appeal is Partly Allowed and there shall
be a Decree of Declaration, in all other respects, the decree of the lower
Appellate Court in A.S.No.490 of 2008 is confirmed. There shall be no
order as to costs. Consequently, connected miscellaneous petition is
closed.
20.07.2021
sts
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S.A.No.726 of 2009
Internet :Yes / No
Index : Yes / No
Speaking Order / Non-Speaking Order
To:
1. The Principal Subordinate Judge,
Coimbatore.
2. The Principal District Munsif Court,
Coimbatore.
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S.A.No.726 of 2009
P.T.ASHA, J.,
sts
Judgment made in
S.A.No.726 of 2009
Dated:
20.07.2021
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