Madras High Court
Rasu @ Subburaju vs Kandiah @ Kandasamy on 14 December, 2022
S.A.No.1594 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.12.2022
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.1594 of 2003
Rasu @ Subburaju ... Appellant/Respondent/Defendant
Vs
Kandiah @ Kandasamy ... Respondent/Appellant/Plaintiff
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 07.02.2003 made in A.S.No.76 of 2001 on
the file of the Principal District Court, Pudukottai reversing the judgment
and decree dated 30.03.2001 made in O.S.No.502 of 1995 on the file of the
Additional District Munsif Court, Pudukottai.
For Appellant : Mr.Srinivasan
for Mr.Madhavan
For Respondent : Mr.I.Vel Pradeep
JUDGMENT
The defendant in the suit is the appellant in the second appeal. The
respondent herein filed a suit for declaration of title, for recovery of
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possession, for damages and for use and occupation. The suit was
dismissed by the trial Court and on appeal filed by the respondent/plaintiff,
it was decreed. Aggrieved by the same, the defendant is before this Court.
2. According to the respondent/plaintiff, the suit property was
purchased under Ex.A.2-registered sale deed dated 11.06.1979 from one
Subbiah. After purchase, the plaintiff put up a house thereon. The appellant
herein entered the suit property as a tenant in the year 1990 agreeing to pay
a sum of Rs.100/- as monthly rent. It was specifically averred by the
respondent/plaintiff that the appellant/defendant had committed default in
payment of rent from August, 1992. It was further averred that the building
in the suit property is in a dilapidated condition and the respondent required
the same for his own use. It was also stated that on 10.08.1995, the
respondent/plaintiff issued a lawyer's notice asking the appellant/defendant
to surrender possession of the suit property by terminating the tenancy. The
appellant came up with a reply denying the tenancy arrangement and hence,
the respondent was constrained to file the present suit for the aforesaid
reliefs.
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S.A.No.1594 of 2003
3. The appellant herein filed a written statement denying the landlord
tenant relationship between the appellant and the respondent. The appellant
also denied the title of the respondent specifically. The appellant had set up
an independent title in himself. It was alleged by him that he purchased the
suit property from a Sri Lankan refugee through an oral sale in the year
1990 and since then he had been in possession and enjoyment of the suit
property as an owner. The appellant also filed an additional written
statement raising a plea that the plaintiff, who had presented the present suit
through his Power Agent, is a fictitious person.
4. On these pleadings, the parties went to the trial and the Power
Agent of the plaintiff was examined as P.W.1. The respondent/plaintiff
marked 9 documents viz., Ex.A.1 to Ex.A.9. On behalf of the
appellant/defendant, the defendant was examined as D.W.1 and one more
witness was examined as D.W.2. On behalf of the appellant/defendant,
three documents were marked as Ex.B.1 to Ex.B.3.
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S.A.No.1594 of 2003
5. On consideration of the oral and documentary evidence available
on record, the trial Court held that though the respondent produced his title
document, failed to prove that he enjoyed the property from the date of
purchase and it also found that the power deed executed by the plaintiff to
enable his agent to present the plaint on his behalf was not proved by
examining the principal viz., the plaintiff. On these findings, the trial Court
dismissed the suit and aggrieved by the same, the respondent filed an appeal
in A.S.No.76 of 2001 on the file of the Principal District Court, Pudukottai.
The first appellate Court held that the respondent proved his title over the
suit property and the appellant though pleaded independent title in himself,
failed to substantiate the same by leading any evidence and consequently,
set aside the findings of the trial Court and allowed the appeal. Aggrieved
by the same, the appellant/defendant is before this Court.
6. Heard the arguments of the learned counsel for the appellant and
the learned counsel for the respondent and perused the records and typed set
of papers.
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7. The learned counsel for the appellant tried to assail the judgment of
the first appellate Court on the ground that the power deed executed by the
respondent on behalf of his Power Agent, Parvathy was not at all proved
and hence, the first appellate Court ought not to have granted a decree in
favour of the respondent. He further submitted that the plaintiff purchased
the suit property from a Sri Lankan refugee and as per the scheme of the
Government, the properties allotted to Sri Lankan refugee are inalienable
and hence, the plaintiff is not entitled to seek declaration of title on the basis
of Ex.A.2.
8. The learned counsel for the respondent, on his part, submitted that
the respondent/plaintiff proved his title by producing Ex.A.2, a registered
sale deed in his favour. On the other hand, the appellant/defendant though
claimed title over the suit property under an oral sale, failed to substantiate
the same by leading any evidence and consequently, the finding of the
appellate Court upholding title of the respondent requires no interference.
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9. At the time of admitting the appeal, this Court framed the following
substantial questions of law:
“(i) Whether the Lower Appellate Court was
right in decreeing the suit even after finding that one
Panneerselvam is the owner of the suit property? and
(ii) Whether the lower appellate Court was
right in accepting A7 and A8, which are subsequent
to the suit?”
10. The respondent filed a suit for declaration of title and for recovery
of possession and profits. It is settled law, in a suit for title, the plaintiff has
to win or lose on the basis of his own strength. If the plaintiff succeeds in
proving his title, then unless the defendant lead evidence to prove his better
title, the plaintiff is entitled to recovery of possession as a necessary
consequence of his title. In the present case, the plaintiff proved his title by
producing registered sale deed in his favour as Ex.A.2. The appellant has
not produced any contra evidence to prove his better title. Though the
learned counsel for the appellant submitted that the respondent/plaintiff
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purchased the suit property from a Sri Lankan refugee, who had no right of
alienation, the perusal of Ex.A.2 would suggest that the plaintiff was
described as a Sri Lankan refugee and his vendor was not described so.
Therefore, the contention made by the learned counsel for the appellant that
the plaintiff purchased the property from a Sri Lankan refugee cannot be
accepted. Further, there is no material placed before the Court to suggest
that Sri Lankan refugees are barred from alienating their properties. Though
the appellant tried to set up independent title in himself, he cannot succeed
in his attempt on the face of his own pleadings. The appellant/defendant in
his written statement claimed that he purchased the suit property orally from
one Subbiah. The appellant has not let in any evidence in support of his
alleged oral sale. Further, it is settled law, in case of immovable properties
there cannot be an oral sale if the value of the property exceeds Rs.100/-.
Therefore, in the light of weak pleading and also dearth of evidences on the
part of the appellant to prove his better title, the respondent is entitled to
succeed in support of his prayer for declaration of title. Once it is held that
the respondent/plaintiff is entitled to declaration of title, as a necessary
consequence, the respondent is entitled to recover possession from the
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appellant, unless the appellant pleads and proves his entitlement to retain
possession in one capacity or the other.
11. So far as the contention raised by the learned counsel for the
appellant that the respondent failed to prove the power deed executed by
him in favour of his Power Agent Parvathy to enable her to present the
present suit is concerned, the power deed executed by the plaintiff in favour
of his Power Agent is marked as Ex.A.1. It is a registered power deed and
the same was marked through the Power Agent of the plaintiff viz.,
Parvathy. Therefore, it has been properly proved to receive it in evidence.
Though the appellant/defendant in his additional written statement had
pleaded that the principal mentioned in Ex.A.1 power deed viz., the plaintiff
herein is a fictitious person created by the said Parvathy for the purpose of
the present suit, he has not chosen to lead any evidence regarding the said
plea. Neither the appellant as D.W.1, nor the other witness examined by the
appellant as D.W.2 had spoken about the said plea of the appellant in his
additional written statement. When the respondent's witness viz., the Power
Agent Parvathy was examined as P.W.1, a suggestion was put to her as if her
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S.A.No.1594 of 2003
principal was no more and the said suggestion was stoutly denied by her. In
these circumstances, this Court cannot ignore the registered power deed
produced by the respondent in the absence of any evidence on behalf of the
appellant to discredit the same.
12. In view of the discussions made earlier, the contentions raised by
the learned counsel for the appellant are not acceptable to this Court and the
substantial questions of law, framed at the time of admission of this second
appeal, are answered against the appellant and consequently, the second
appeal is dismissed.
13. In nutshell, (i) the second appeal is dismissed by confirming the
judgment and decree dated 07.02.2003 passed in A.S.No.76 of 2001 on the
file of the Principal District Court, Pudukottai; and (ii) there is no order as
to costs.
14.12.2022
Internet:Yes
Index:Yes/No
abr
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S.A.No.1594 of 2003
S.SOUNTHAR, J.
abr
To
1.The Principal District Judge,
Pudukottai.
2.The Additional District Munsif,
Pudukottai.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.No.1594 of 2003
14.12.2022
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