Madras High Court
Ravi Alias Palanisamy vs Chinna Naicker on 4 March, 2022
S.A.No.165 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.165 of 2016
and CMP No.3383 of 2016
Ravi alias Palanisamy ... Appellant
Vs.
Chinna Naicker ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 09.12.2015 made in
A.S.No.3 of 2014 on the file of the Court of the Subordinate Judge,
Gobichettipalayam, Erode District, confirming the judgment and decree
dated 31.01.2014 made in OS No.227 of 2010 on the file of the Court of
the District Munsif, Gobichettipalayam, Erode District.
For Appellant : Mr. T.Dhanasekaran
For Respondent : No appearance
1/6
https://www.mhc.tn.gov.in/judis
S.A.No.165 of 2016
JUDGMENT
The defendant is the appellant in this Second Appeal.
2. The respondent/plaintiff filed the suit seeking for the relief of
permanent injunction restraining the defendant from interfering with the
possession and enjoyment of the suit property.
3. The case of the plaintiff is that he is the absolute owner of the suit
property by virtue of a registered Sale Deed dated 05.05.1972, marked as
Ex.A1. The further case of the plaintiff is that he has put up a residential
building in the property and was in possession and enjoyment of the same
and the Revenue Records was also mutated in the name of the plaintiff.
The plaintiff in order to prove his possession and enjoyment of the
property has also filed the Property Tax Receipts, Electricity Bills and also
the Family Card, marked as A3 to A18.
4. The defendant is the grandson of the plaintiff. According to the
plaintiff, he permitted the defendant to stay in the property and taking
advantage of the same, the defendant is attempting to take over the
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S.A.No.165 of 2016
property and prevent the plaintiff from enjoying the property. Hence the
suit came to be filed seeking for the relief of permanent injunction.
5. The defendant filed a written statement to the effect that the suit
property was purchased and developed out of the income derived from the
joint family property and his mother also had a share in the property. It
was based on this right, the defendant was living with his family in the suit
property. That apart, he also took a stand to the effect that the plaintiff has
gifted the property in favour of the defendant more than 20 years prior to
the filing of the suit and he is not even living in the suit property for more
than 15 years. On these grounds, the defendant sought for the dismissal of
the suit.
6. Heard Mr.T.Dhanasekaran, learned counsel appearing for the
appellant and carefully perused the findings of both the Courts below.
7. Both the Courts below concurrently found that all the vital
documents proved the title and possession of the plaintiff in the suit
property. That apart, the Courts below also took into consideration the fact
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S.A.No.165 of 2016
that Exs.B2 to B14 that was relied upon by the defendant actually stood in
the name of the plaintiff. Both the Courts also found that the defendant
has not proved the fact that the property is a joint family property and the
fact that it was gifted in his favour by the plaintiff. Hence, the relief sought
for by the plaintiff was granted and it was also confirmed by the Appellate
Court.
8. In the considered view of this Court, the findings of both the
Courts below is based on the oral and documentary evidence and this
Court does not find any perversity in those findings. The learned counsel
for the appellant relied upon the Commissioner’s Report and submitted
that the Commissioner has found that the defendant is in possession of the
property. This aspect has also been gone into by the Lower Appellate
Court and it was found that a Commissioner cannot be appointed to gather
evidence and to ascertain the factum of possession. This finding of the
Lower Appellate Court is perfectly in accordance with law. At the best,
even if the defendant has been allowed to be in possession of the property
by his grandfather, it can only be construed as a permissive possession and
that does not give any right to the defendant to stay put in the property.
https://www.mhc.tn.gov.in/judis
S.A.No.165 of 2016
There are absolutely no substantial questions of law involved in this
Second Appeal.
9. In the result, the Second Appeal is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
04.03.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
To
1.The Subordinate Judge,
Gobichettipalayam, Erode District,
2.The District Munsif,
Gobichettipalayam, Erode District
3. The Section Officer
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.165 of 2016
N. ANAND VENKATESH, J.
jv
Second Appeal No.165 of 2016
and CMP No.3383 of 2016
04.03.2022
https://www.mhc.tn.gov.in/judis
