Madras High Court
Devi vs Mohan ...Plaintiff/ on 11 October, 2022
S.A.No.832 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.832 of 2022
and
C.M.P.No.17011 of 2022
Jayapal (deceased)
1.Devi
2.Arun Kumar
3.Anbazhagan ...Defendant legal heirs/Appellants
Appellants
Vs.
Mohan ...Plaintiff/Respondent/
Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 24.09.2019 in
A.S.No.14 of 2019 on the file of the learned IV Additional District
Judge, Ponneri, confirming the Judgment and Decree dated 19.12.2018
1/9
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S.A.No.832 of 2022
in O.S.No.36 of 2009 on the file of the learned Subordinate Judge,
Ponneri.
For Appellant : Ms.C.A.Sharmila
JUDGMENT
The unsuccessful defendant before the Courts below is the
appellant before this Court challenging the Judgment and Decree in
A.S.No.14 of 2019 on the file of the learned IV Additional District
Judge, Ponneri, in and by which the learned Judge had confirmed the
Judgment and Decree passed passed by the learned Subordinate Judge,
Ponneri, in O.S.No.36 of 2009.
2.In order to appreciate the issue involved in the above Second
Appeal, the facts of the case are hereinbelow narrated and the parties
are referred to in the same rank and array as before the trial Court.
The suit property was settled in favour of the plaintiff by his
father and his mother on 25.07.2003. The Settlement Deed was
accepted and acted upon by the plaintiff who is in possession of the
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S.A.No.832 of 2022
same as an absolute owner. The tax receipts have also been transferred
in his name. The defendant is one of the younger brothers of the
plaintiff. He was also given a vacant house site and certain agricultural
lands by the parents. However, after the death of the father in the year
2004, the defendant sold the property allotted to him and came over to
the subject property which belongs to the plaintiff. On account of his
love and affection, the plaintiff had permitted the plaintiff to occupy
the suit property. In the year 2006, the plaintiff wanted the defendant
to vacate and hand over the possession. Though the plaintiff forwarded
a letter to the defendant he has reneged on his commitment and
continued to stay in the property. Thereafter, in the light of the
pressure by the plaintiff, the defendant had given an undertaking in
writing on 23.07.2007 agreeing to give possession of the schedule
property to the plaintiff on or before 01.08.2007. However, the
undertaking was observed in the breach. Hence, the plaintiff issued a
legal notice dated 13.10.2008 demanding the defendant to deliver
vacant possession of the suit property. The defendant received the
same, but however, had neither replied to the said notice nor vacated
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S.A.No.832 of 2022
the property. Therefore, the plaintiff had come forward with the suit in
question seeking recovery of possession and damages.
3.The defendant had filed his Written Statement inter alia
admitting the ownership of the suit property by the plaintiff, but
however, denying that he is in permissive occupation. He has
submitted that he has been residing this property along with the father
from his birth. He had denied executing the undertaking letter and
sought for dismissal of the suit.
4.The learned Subordinate Judge, Ponneri, had framed the
following issues for determination:
“(1)Whether the plaintiff is entitled to decree of
recovery of possession of the suit property as prayed
for?
(2)Whether the plaintiff is entitled for damages as
prayed for?
(3)To what other relief the plaintiff is entitled to?”
5.On the side of the plaintiff, the plaintiff examined two
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S.A.No.832 of 2022
witnesses and marked Ex.A.1 to Ex.A.9. Likewise, the defendant
examined two witnesses and marked Ex.B.1 to Ex.B.4. The trial Court
taking into account the admission of the defendant that the property
belonged to the plaintiff decreed the suit as prayed for. Challenging the
same, the defendant had filed A.S.No.14 of 2019 on the file of the
learned IV Additional District Judge, Ponneri. The learned Judge on
considering the oral evidence and the documents dismissed the appeal
and confirmed the Judgment and Decree of the trial Court. After the
Judgment in A.S.No.14 of 2019 the defendant had died on 25.09.2019.
Challenging the same, the legal heirs of the defendant have filed the
above Second Appeal.
6.Heard the learned counsel appearing for the appellants and
perused the papers.
7.The defendant/appellant in his Written Statement had admitted
the ownership of the suit property by the plaintiff, but however, had
taken a plea that he is not in permissive occupation of the same. Except
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S.A.No.832 of 2022
for these statements, the defendant has not come forward with any
concrete defence and explained the nature of his possession of the suit
property. In fact, in his cross examination as DW1, the defendant has
admitted as follows:
“vd;Dila vjph;tHf;Fiuapy; vdJ
mg;gh fpUc&;zd; thjpf;F vGjp bfhLj;j
brl;oy;bkz;l; Mtzj;ij ehd;
kWf;ftpy;iy/ vjph;tHf;Fiuapy; ehd; jhth
brhj;jpw;F thjpf;F cs;s chpikia
xg;gf
[ ;bfhz;Ltpl;L. tHf;if fhyjhkjk;
bra;tjw;fhf mtUf;F chpik ,;y;iy vd;W
brhy;ypa[s;nsd; vd;why; rhpay;y/”..... “vdJ
mg;gh fpUc&;zDf;F ehDk; thjpa[k; cs;gl 5
kfd;fs;. 2 kfs;fs;/ 25/07/2003 md;W vdJ
bgw;nwhh;fs; thjpiaj; jtpu kw;w kfd;fs;
kw;Wk; kfs;fSf;F mth;fsJ brhj;Jf;fis
Fwpj;J jdpj;jdpahf brl;oy;bkz;l; vGjp
itj;jdh;/ me;j brl;oy;bkz;l;od;go mtuth;
mtuJ brhj;Jf;fis mDgtpj;J
tUfpd;wdh;///// “vf;rpgpl; V 5y; cs;sJ vdJ
ifbahg;gk; jhd;/”
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S.A.No.832 of 2022
8.Therefore, it is crystal clear that the defendant is only in
permissive occupation of the suit property from the plaintiff and
therefore, he cannot plead adverse possession. It is also not his case
that he is a tenant under the plaintiff and having admitting the
ownership of the plaintiff and having executed the undertaking on
23.07.2007 which was marked as Ex.A.5, the defendant cannot
continue to squat on the property and refuse to hand over the vacant
possession of the property. Both the Courts below have rightly
considered the evidence on record and decreed the suit. I see no reason
to interfere with the concurrent Judgment and Decree passed by the
Courts below and since no substantial question of law has been made
out this Second Appeal is dismissed. A month's time from today is
granted to the defendants to vacate the premises. No costs.
Consequently, connected Miscellaneous Petition is closed.
11.10.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
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S.A.No.832 of 2022
To
1.The IV Additional District Judge,
Ponneri.
2.The Subordinate Judge,
Ponneri.
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S.A.No.832 of 2022
P.T. ASHA, J,
mps
S.A.No.832 of 2022
and
C.M.P.No.17011 of 2022
11.10.2022
https://www.mhc.tn.gov.in/judis
