Madras High Court
R.Selvakumar vs Bymi on 25 April, 2022
SA.No.226/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.226/2022
R.Selvakumar .. Appellant / Appellant /
Plaintiff
Vs.
N.Raju (Since deceased)
1.Bymi
2.R.Karthi
3.Rathna
4.Vijaya Kumar
5.Saraswathy
6.Ramya .. Respondents / Respondents /
Defendants
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code against the decree and judgment passed in A.S.No.46/2018 on the
file of the Sub Court, Coonoor dated 30.08.2019 confirming the decree and
judgment passed in O.S.No.17/2014 on the file of the learned District
Munsif Court at Kotagiri dated 04.08.2018.
For Appellant : Mr.K.Thilageswaran
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SA.No.226/2022
JUDGMENT
(1) The plaintiff in the suit in O.S.No.17/2014 on the file of the District
Munsif Court, Kotagiri is the appellant in the above second appeal.
(2) The appellant herein filed the suit in O.S.No.17/2014 for declaration
of his title and recovery of possession by directing defendants 2 to 7
to deliver the vacant possession of the suit property to the appellant
and for injunction restraining defendants 2 to 7 from interfering with
the plaintiff 's possession and enjoyment of the suit property.
(3) The suit property is described as an extent of one and half cents of
land along with building, bearing number D.No.45/94C in New
S.No.1024/10 in Kotagiri Village. It is the case of the plaintiff in the
plaint that he is the absolute owner of the suit schedule house
property and that the suit property along with adjacent land
measuring an extent of 7 cents originally was purchased by the
plaintiff 's grandfather by name S.Perumal by means of a Sale Deed
dated 20.03.1942 for valuable consideration. It is the further case of
the plaintiff that his grandfather constructed the suit schedule house
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and adjacent houses with mud wall and tiled roof and was residing
along with his family members in the building bearing D.Nos.45/94
and 45/95 in Kotagiri Village. It is the further case of the appellant
that his grandfather permitted the 1st defendant's father one Late
Thiru Natchimuthu to reside in the suit schedule house and that
Natchimuthu died intestate leaving behind his two sons namely, the
1st defendant and his brother Yesudas who is the husband of 4th
defendant in the suit. It is admitted that the plaintiff 's elder brother
R.Krishnasamy, during the life of the plaintiff 's father, filed
R.C.O.P.No.41/1992 before the Rent Controller, Coonoor in respect
of the suit premises for eviction. The said petition was dismissed for
default on 08.08.1995. It is the further case of the appellant that his
father died on 17.01.1993 and as per the Oral Partition Deed on
01.01.1996 in the plaintiff 's family, the suit schedule house and
adjacent house were allotted to the plaintiff 's share. Plaintiff in the
plaint, has also stated that on 01.01.1996, the property was let out to
1st defendant's brother Yesudas, on monthly rent. The appellant filed
R.C.O.P.No.3/2002 and R.C.O.P.No.4/2003 before the Rent
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Controller, Kotagiri against the 1st defendant and his brother Late
Yesudas. The Rent Controller, Kotagiri in his order dated
29.08.2003 has held that there was no landlord and tenant
relationship between the appellant and the respondents and directed
the appellant to file the suit before the Civil Court for his remedy.
Hence the suit is filed for declaration of title and for recovery of
possession. Strangely the prayer is also for permanent injunction. It
is the case of the appellant that his name was included in the revenue
records and has been muted in the patta and revenue records. It is
contended by the appellant that defendants have no title or interest
over the suit schedule property, and that they are only in permissive
possession. Though it is admitted that the suit house has been
assessed in the name of the 1st defendant's father by name
Natchimuthu, it is pleaded by the appellant that the 1 st defendant's
father was working in the Kotagiri Special Grade Town Panchayat
and that the records were unlawfully mutated under the influence of
the defendants.
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(4) The suit was contested by the 5th defendant in the suit by denying the
averments made in the plaint. Neither title of Late S.Perumal nor the
oral permission given to the 1st defendant's father as pleaded in the
plaint were admitted. It is the specific case of the 5th defendant that
no landlord and tenant relationship exists between the plaintiff and
defendants. It is the case of the 5th defendant that his grandfather
Natchimuthu was in possession of the suit property before 1960 and
that the said Natchimuthu constructed a building in the year 1962 in
the suit property and was in possession thereafter continuously
without any interruption from anyone for several decades. It is the
case of the defendants that the suit building was constructed by late
Natchimuthu and the suit for declaration of title as against the 5th
defendant is not sustainable.
(5) The Trial Court after framing necessary issues, found that the
plaintiff is not entitled to seek declaration of title and that the suit is
barred for non joinder of necessary parties. The Trial Court
specifically rendered findings that the suit house was constructed
only by the 1st defendant's father and that therefore, the plaintiff is
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not entitled to declaratory relief or the consequential relief for
recovery of possession. The Trial Court also held that the 5th
defendant acquired title by adverse possession. Aggrieved by the
judgment and decree of the Trial Court dismissing the suit, the
appellant preferred an appeal in A.S.No.46/2018 before the Sub
Court, Coonoor.
(6) The Lower Appellate Court held that the appellant has not come
forward with a clear case about his title over the suit schedule
property through Ex.A1 Sale Deed and held that the appellant has
not proved his case of title. The Lower Appellate Court after
independently considering all the issues dismissed the appeal and
confirmed the judgment of the Trial Court in O.S.No.17/2014.
Aggrieved by the concurrent judgments and decrees of the Courts
below the above second appeal is filed by the appellant/plaintiff.
(7) The appellant has raised following substantial questions of law in
the Memorandum of Grounds of Second Appeal.
1.When the declaration sought for against the
defendants is right against personam, whether the
Courts below right in dismissing the case of the
plaintiff on the ground of non joinders of parties.
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2.Whether the long possession of permissive
occupier would be a ground to deny the right of title
of the legal heirs of the property.
3.When the plaintiff has discharged his initial onus
with regard to title of the suit property whether the
Courts below are right in again shifting the burden
on the plaintiff and whether it is hit by Section 102 of
the Evidence Act or not.
4.Whether the long possession of a permissive
occupier would affect the ownership of the title
holder of the property.
(8) The appellant as plaintiff is bound to prove his case. The appellant
who filed the suit for declaration has to stand on his case based on
materials. In the present case, the plaintiff 's case that the defendants
are in permissive possession is not established. Both the Courts have
rendered specific findings that the appellant has not proved how he
derived title on the basis of the Sale Deed obtained by his father
under Ex.A1. The plaintiff has to discharg his initial burden. As
found by the Lower Appellate Court, the plaintiff/appellant did not
produce document to correlate the suit property with the survey
number mentioned in Ex.A1. The possession of respondents is
admitted. In the absence of any evidence to show that the defendants
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were in permissive possession there is no scope for accepting the
case of appellant. The defendants disputed the title of appellant. The
document produced by defendants would show that they are in
possession of the suit property from 1984 continuously. The
property tax assessments from 1984-85 stands in the name of
defendants. Hence, this Court is unable to find any irregularity in the
findings of the Trial Court as regards the independent right of the
respondents. Both the Courts have concurrently held that the
defendants were in enjoyment of the suit property for several
decades and that the respondents have prescribed title by adverse
possession. As against the concurrent judgments and findings of the
Courts below the learned counsel appearing for the appellant has not
produced any evidence or material before this Court which would
render the findings erroneous.
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(9) Having regard to the scope of second appeal, this Court has limited
power to interfere with the findings of fact. As seen from the
records, this Court is unable to find any substance in any of the
substantial questions of law raised by the appellant. Having regard
to the concurrent findings on facts, which are supported by reasons
given by Courts below while rejecting the appellant's case, this
Court is unable to find any grounds to interfere with the judgments
of the Courts below.
(10) In the result, the Second Appeal is dismissed.
25.04.2022
cda
Internet : Yes
To
1.The Sub Court, Coonoor.
2.The District Munsif Court, Kotagiri.
3.The Section Officer, VR Records,
High Court, Chennai.
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SA.No.226/2022
S.S.SUNDAR, J.,
cda
SA.No.226/2022
25.04.2022
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