Madras High Court
Ettikkan Shanmugham (Deceased) vs R. Doraisami on 10 March, 2022
S.A.No.588 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.588 of 2015
and CMP Nos.2454 and 2462 of 2019
1. Ettikkan Shanmugham (Deceased)
S/o.Etikkan, Residing at BLK 723#12-163,
Yishun ST-71, Singapore 760 723
Through His POA Agent T,Vanavil
S/o. A.V.Thangavel, 585, Salem Main Road,
Attur, Salem District
2. Sanmugam Sarojadevi
3. Dhurrga Sanmugam
4. Sivakanes Sanmugam
5. Sivakarthik Sanmugam ... Appellants
Appellants 2 to 5 brought on record as LRS
of the deceased Sole Appellant vide order of
Court dated 05.10.2018 made in CMP No.16811/2017
in SA No.588/2015(TRNJ)
Vs.
R. Doraisami ... Respondent
1/7
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S.A.No.588 of 2015
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 20.12.2013 in
A.S.No.3 of 2007 on the file of the I Additional District Judge, Salem
reversing the judgment and decree dated 28.04.2006 in OS No.522 of
2001 on the file of the Additional Subordinate Judge, Salem.
For Appellants : Mr.D.Shivakumaran
For Respondent : Mr.C.Vediappan
for M/s.C.S.Associates
JUDGMENT
The plaintiff is the appellant in the Second Appeal.
2. The plaintiff filed the suit seeking for the relief of declaration that
he is the owner of the bus along with the route permit and to deliver the
bus along with its route permit to him and for a preliminary decree for
rendition of accounts from 24.07.1995 to 22.09.1997 and for the payment
of the mesne profits along with interest.
3. The case of the plaintiff is that he is the owner of the stage
carriage bus and he purchased the same from one Madheswaran on
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S.A.No.588 of 2015
31.07.1995 and the permit was also transferred in his name on 06.09.1995.
The further case of the plaintiff is that he appointed the defendant as his
Power Agent to run the bus and the Original Registration Certificate,
Permit and Insurance Policy were handed over to the said Power Agent.
The plaintiff was not satisfied with the performance of his agent and hence
he cancelled the agency on 22.09.1997. The plaintiff also called upon the
defendant to deliver the Original Registration Certificate, Permit and
Insurance Policy and other documents pertaining to the Bus. The
grievance of the plaintiff is that the defendant along with others had taken
away the Bus forcibly and were operating the Bus. The defendant also
denied the title of the plaintiff in the Bus and was continuing to unlawfully
possess the Bus. Hence the suit was filed seeking for the reliefs stated
supra.
4. The defendant claims to be the absolute owner of the Bus from
the year 1994 onwards and the defendant has denied the fact that he acted
as an Agent to the plaintiff. According to the defendant, he had purchased
the Bus from one Balagangatharan on 20.11.1994. At that point of time, he
had borrowed a sum of Rs.11,50,000/- from Madheswaran, as loan. For
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S.A.No.588 of 2015
this purpose, the documents relating to the Bus were transferred in favour
of Madheswaran as security. The defendant has further stated that the
plaintiff was illegally claiming for the title over the Bus and according to
the defendant, the plaintiff has absolutely no right or title over the Bus and
hence sought for the dismissal of the suit. Both the Courts below after
considering the facts and circumstances of the case and after analysing the
oral and documentary evidence, concurrently held against the plaintiff.
Aggrieved by the same, the plaintiff has filed the Second Appeal before
this Court.
5. Heard Mr.D.Shivakumaran, learned counsel appearing for the
appellants and Mr.C.Vediappan, learned counsel appearing for the
respondent. This Court also carefully perused the materials available on
record and the findings of both the Courts below.
6. Both the Courts below have categorically held that the plaintiff
failed to establish that he purchased the Bus from Madheswaran and that
he also appointed the defendant as the Power Agent to manage the Bus. It
was also further found that the plaintiff failed to establish that the Bus was
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S.A.No.588 of 2015
forcibly taken by the defendant. On the contrary, both the Courts below
found that the defendant had established the ownership over the Bus after
the purchase of the same from one Balagangatharan. Hence, it was held
that the defendant was entitled to operate the Bus as the real owner of the
Bus. The Lower Appellate Court on re-appreciation of the evidence
concurred with this finding of the Trial Court. However, the Lower
Appellate Court took into consideration the fact that the defendant had
admitted the receipt of loan amount and hence thought it fit to modify the
judgment of the Trial Court to the effect that the defendant should pay a
sum of Rs.11,33,734/- with interest.
7. It is brought to the notice of this Court by the learned counsel for
the respondent that the amount that was directed to be paid by the Lower
Appellate Court was also deposited on 20.01.2015 and a sum of
Rs.11,92,311 was deposited.
8. In the considered view of this Court, there is no perversity in the
findings of both the Courts below and in fact the Lower Appellate Court
had rendered justice to the plaintiff by ordering for the repayment of the
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S.A.No.588 of 2015
loan amount and that has also been complied with by the respondent. No
substantial question of law is 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 petitions are closed.
10.03.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
To
1.The I Additional District Judge,
Salem.
2.The Additional Subordinate Judge,
Salem.
3. The Section Officer
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.588 of 2015
N. ANAND VENKATESH, J.
jv
Second Appeal No.588 of 2015
and CMP Nos.2454 and 2462 of 2019
10.03.2022
https://www.mhc.tn.gov.in/judis
