Madras High Court
Chinnathambi vs Poomalai (Died) on 30 June, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA No.1300 of 2004
1.Chinnathambi
2.Thangaraj
3.Annasamy ... Plaintiffs/Respondents /Appellants
Vs.
1.Poomalai (died) ...Defendant/Appellant/Respondent
2.P.Ramar
3.P.Ponnuthai
4.P.Ramalakshmi
5.P.Kala Devi
6.P.Pulikkutti
7.P.Senthurpandian
8.P.Kalimuthu ... Respondents
(Respondents 2 to 8 were brought on record as LRs of the
deceased sole respondent vide Court order dated 22.01.21)
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 18.03.2004 passed in
A.S No.101 of 2003 on the file of the Sub Court, Sankarankovil,
reversing the judgment and decree dated 27.06.2003 in O.S No.50 of
2001 before the Additional District Munsif's Court, Sankarankovil.
https://www.mhc.tn.gov.in/judis/
1/9
For Appellants : Mr.M.Saravanan
for C.Ashok Kumar
For Respondents : Mr.M.P.Senthil for R2 to R8
JUDGEMENT
The plaintiffs in O.S No.50 of 2001 on the file of the Additional
District Munsif, Sankarankovil are the appellants in this second
appeal. The appellants filed the said suit seeking the reliefs of
declaration, permanent injunction, mandatory injunction and recovery
of possession. The reliefs of declaration and permanent injunction
were sought in respect of the first item. In respect of the second item,
the reliefs of declaration as well as the mandatory injunction/recovery
of possession was sought. The first schedule measures 21 cents. The
second schedule measures 1 ½ cents. Thiru.Poomalai filed his
written statement denying the plaint averments. According to him,
the plaintiffs originally sold eight cents of land on the western side of
the suit schedule property. Based on the oral sale, Poomalai took
possession of the eight cents and also put up construction thereon.
The defendant controverted the claim of the plaintiffs that they were
not aware of the constructions put up thereon. The learned trial
Judge framed the necessary issues. The first plaintiff Chinnathambi
examined himself as PW.1 and one Manuvelraj as PW.2. Exs.A1 to A3
https://www.mhc.tn.gov.in/judis/
were marked. The defendant examined himself as DW.1 and two
other witnesses were examined as DW.2 and DW.3. Exs.B1 to B4
were marked. An Commissioner was appointed and he inspected the
suit property and he submitted his report with sketch and plan. They
were marked as Court Exs.1 and 2. After considering the evidence on
record, the learned trial Judge by judgment and decree dated
27.06.2003 decreed the suit as prayed for. Aggrieved by the same, the
defendant Poomalai filed A.S No.101 of 2003 before the Sub Court,
Sankarankovil. By the impugned judgment and decree dated
18.03.2004, the first appellate court partly allowed the appeal and
suspended the reliefs of declaration and enjoyment in respect of the
entire property other than the six and half cents on the western side.
The first appellate court sustained the claim of the defendant that the
property occupied by him was orally sold by the plaintiffs and only
with their knowledge and acquiescence, the constructions were put
up. Challenging the same, this second appeal came to be filed. The
second appeal was admitted on the following substantial questions of
law :
"1.Whether in law the lower appellate court was
right in protecting the possession of a trespasser
against the true owner, thus flouting the dictum laid
down in AIR 1962 Mad 149?
https://www.mhc.tn.gov.in/judis/
2.Whether the lower appellate court was wrong
in holding that the appellants had acquiesced to the
respondent's possession when the appellants had filed
the suit immediately on failure of mediation ?
3.Whether the lower appellate court was wrong
in accepting the respondent's case of oral sale?”
2.Heard the learned counsel on either side.
3.The learned counsel appearing for the appellants reiterated all
the contentions set out in the memorandum of grounds and called
upon this Court to answer the substantial questions of law in favour of
the appellants. It is obvious from Ex.A1 that the entire suit schedule
property measuring 22 ½ cents belonged to one Ponnaiah Nadar.
That the encroached portion also originally belonged to Ponnaiah
Nadar is not in doubt. Following the demise of Ponnaiah Nadar, the
property devolved on the plaintiffs. It is well settled that there cannot
be any plea of oral sale. The contract of sale has to be necessarily in
writing. If the sale consideration is above Rs.100/-, then, it will have
to be compulsorily registered. Therefore, he submitted that the first
appellate court went completely wrong in sustaining the contention of
oral sale and granting relief to the defendant on that basis. According
to the learned counsel for the appellants, the defendant was a rank
https://www.mhc.tn.gov.in/judis/
trespasser and therefore, the question of protecting his possession
against the true owner will not arise at all. He also would submit that
the plaintiffs were absolutely unaware of the construction put up by
the defendant. Therefore, the plea of acquiescence also has to be
rejected. He called upon this Court to set aside the impugned
judgment and decree and restore the judgment and decree of the trial
court.
4.Per contra, the learned counsel for the respondents submitted
that the impugned judgment and decree passed by the first appellate
court does not call for any interference.
5.I carefully considered the rival contentions and went through
the evidence on record. The original defendant Poomalai had put up
construction on a portion of the suit property. The first defendant
Chinnathambi is very much a neighbor. While the first appellate court
could have given a limited protection that Poomalai could not be
dispossessed except by due process of law, a blanket protection could
not have been given in his favour. I therefore, answer the first
substantial question of law accordingly.
https://www.mhc.tn.gov.in/judis/
6.The original defendant did not claim the disputed property as
his own. His contention was that it was orally sold by the plaintiffs.
Section 54 of the Transfer of Property Act, 1882 after defining what is
sale also lays down as to how sale has to be made. The provision
reads as follows :
“Such transfer, in the case of tangible immoveable
property of the value of one hundred rupees and
upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer may
be made either by a registered instrument or by
delivery of the property.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such person
as he directs, in possession of the property.”
Section 9 of the Transfer of Property Act, 1882 deals with oral
transfer. It states that a transfer of property may be made without
writing in every case in which a writing is not expressly required by
law. If the defendant wanted to sustain his plea of oral sale, he must
have furnished particulars so as to bring his case within the aforesaid
provisions. He has not done so. The valuation of the property has not
been set out. It is not stated as to when the property was taken
delivery. The first appellate court ought to have held that the plea of
https://www.mhc.tn.gov.in/judis/
oral sale has not been proved. The sequitur is that the defendant
could only have been treated as a trespasser. Of course, the plaintiffs
appear to have acquiesced in. The defendant was enjoying electricity
connection right from the year 1997. Though a neighbor,
Chinnathambi failed to object to the putting up of construction on the
suit property. He did not even issue legal notice. The question is
whether the plaintiffs can be non-suited on the ground of
acquiescence. The answer is clearly in the negative. The plaintiffs did
not seek any equitable relief. Only then, they could have been refused
relief on the ground of delay. The plaintiffs seek the relief of recovery
of possession. When the issue regarding title is found in their favour,
the defendant can succeed only by proving adverse possession. The
suit was filed in the year 2001. It is not the case of the defendant that
he was in possession of the disputed property even prior to 1999.
When relief is anchored on a legal right, the party is entitled to it if the
legal right is established. As held by the Hon'ble High Court of
Karnataka in K.V.Narayan vs. Sharana Gowda, [AIR 1986 Kar 77],
mere delay and acquiescence will not defeat the remedy unless it has
continued for such a period so long as to defeat the right itself. In
this case, adverse possession alone could have saved the defendant
from being dispossessed. When that is not the defence, the court has
no option but to grant the relief sought for. The second and third
https://www.mhc.tn.gov.in/judis/
substantial questions of law are answered in favour of the appellants.
The impugned judgment and decree passed by the first appellate court
is set aside. The judgment and decree passed by the trial court is
restored. The second appeal is allowed. No costs.
30.06.2021
Index : Yes / No
Internet : Yes/ No
skm
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 Sub Judge, Sankarankovil.
2.The Additional District Munsif's Judge, Sankarankovil.
2.The Principal District Judge, Tuticorin.
Copy to :
The Record Keeper,
V.R. Section, Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA No.1300 of 2004
30.06.2021
https://www.mhc.tn.gov.in/judis/
