Madras High Court
Rosiappa vs Annapushbam on 9 March, 2021
S.A.(MD)No.163 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.163 of 2021
and
C.M.P.(MD)No.2320 of 2021
Rosiappa ... Appellant/Respondent/
Defendant
versus
Annapushbam ... Respondent/Appellant/
Plaintiff
Second Appeal filed under Section 100 of C.P.C., against the
Judgment and Decree dated 17.08.2020 made in A.S.No.142 of 2017 on the
file of the Sub Court, Tenkasi, reversing the Judgment and Decree dated
15.09.2017 made in O.S.No.377 of 2010 on the file of the Principal District
Munsif Court, Tenkasi.
For Appellant : Mr.F.X.Eugene
JUDGMENT
The defendant in O.S.No.377 of 2010 on the file of the learned
District Munsif, Tenkasi, is on appeal. The challenge is to the Judgment and
Decree of the Appellate Court made in A.S.No.142 of 2017, in and by which,
the lower Appellate Court reversed the Judgment and Decree of the trial Court,
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S.A.(MD)No.163 of 2021
dismissing the suit filed by the plaintiff in seeking declaration of her title and
recovery of possession and granted a decree for declaration and recovery of
possession, while negativing the claim for damages.
2. According to the plaintiff, the suit property belonged to her by
virtue of a sale deed dated 21.05.1986. Having purchased the vacant land, she
also constructed a house therein with the aid of the Scheme framed by the
Government for construction of houses for Adi-Dravidars. Since the plaintiff
had to stay at Kulasekaramangalam to look-after her ailing parents, the
plaintiff had allowed her husband's sister Vellammal to reside in the suit
property. The said Vellammal had unauthorisedly put the defendant in
possession of the property and the same came to the knowledge of the plaintiff
in the year 2006 and since the defendant did not vacate and deliver the vacant
possession when demanded, the plaintiff had come up with the above suit.
3. The suit was resisted by the defendant, contending that the
property does not belong to the plaintiff. The defendant claimed that the
plaintiff had orally sold the property to Vellammal and the said Vellammal had,
in turn, transferred it to the defendant by way of a oral sale. The defendant
would also contend that the suit is barred by limitation inasmuch as he has
been in possession of the property even from the year 1997.
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S.A.(MD)No.163 of 2021
4. At trial, the plaintiff was examined as P.W.1 and Exs.A1 to A7
were marked. The defendant examined himself as D.W.1 and examined one
Dharmaraj as D.W.2. Exs.B1 to B8 were marked.
5. The learned trial Judge, upon consideration of evidence on
record, came to the conclusion that the suit is barred by limitation and
dismissed the suit. Aggrieved, the plaintiff preferred an Appeal in A.S.No.142
of 2017. The learned Appellate Judge, upon re-consideration of the evidence
on record, concluded that the suit is not barred by limitation. The learned
Subordinate Judge found title in favour of the plaintiff and rejected the claim
of the defendant regarding the oral sale. The appellate Court, however, held
that the plaintiff is not entitled to damages for use and occupation, since she
has pleaded permissive possession. On the above conclusion, the Appellate
Judge decreed the suit, for declaration and recovery of possession alone and
rejected the plea for damages for use and occupation. Aggrieved, the
defendant has come up with this second appeal.
6. I have heard Mr.F.X.Eugene, learned counsel appearing for the
appellant.
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S.A.(MD)No.163 of 2021
7. Mr.F.X.Eugene, learned counsel for the appellant would
vehemently contend that since the plaintiff (P.W.1) has admitted the possession
of the defendant from the year 1997, the appellate Court was wrong in
concluding that the suit is not barred by limitation.
8. The fact that the plaintiff has purchased the land and she had put
up construction with the help of the Government Scheme is not denied. The
defendant would claim title by a oral sale. It is claimed that the plaintiff had
orally sold the property to her sister-in-law Vellammal, who, in turn, had again
orally sold the property to the defendant. Therefore, the defendant set up title
herself. The plaintiff would plead that the possession was permissive. In
order to conclude that the suit for recovery of possession is barred by
limitation, it should be shown that the plaintiff was excluded from possession.
Once the plaintiff comes to the Court with a specific case of permissive
possession and the parties are very closely related, it is for the defendant to
dispel the claim of the plaintiff with substantive evidence.
9. Looking at the documents filed by the defendant, the earliest
document would show that his possession was in the year 2001. The suit filed
in 2010. Therefore, it cannot be said that the defendant had proved that he is
in absolute possession of the property for more than 12 years. In the absence
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S.A.(MD)No.163 of 2021
of such evidence, the appellate Court was justified in coming to the conclusion
that the suit is not barred by limitation. Once the title of the plaintiff is
admitted and a plea of oral sale is taken, the lower appellate Court is justified
in granting the relief of declaration of title and recovery of possession, since
the oral sale is invalid. I do not, therefore, find any question of law much less
substantial question of law in order to enable me to entertain the appeal.
Therefore, the Second Appeal fails and it is accordingly dismissed without
being admitted.
09.03.2021
Index : Yes / No
Internet : Yes / No
ogy
To
1. The Sub Court,
Tenkasi.
2. The Principal District Munsif Court,
Tenkasi.
http://www.judis.nic.in
S.A.(MD)No.163 of 2021
R.SUBRAMANIAN, J.
ogy
S.A.(MD)No.163 of 2021
09.03.2021
http://www.judis.nic.in
