Madras High Court
C.Selvam @ Selvaraj (Died) vs Chokkalingam on 22 August, 2023
S.A(MD)No.1217 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22.08.2023
CORAM
THE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY
S.A(MD)No.1217 of 2008
C.Selvam @ Selvaraj (died)
2.S.Annakodi
3.M.Nithia
4.S.Sobiya
5.S.Ramya
(Appellants 2 to 5 are brought on record as LRs of the
deceased sole appellant vide Court order dated 24.07.2023
made in CMP(MD)No.8871, 8873 & 8874 of 2023)
... Appellants
-vs-
1.Chokkalingam
2.P.Santhi
3.A.Manickam
(R2 and R3 are impleaded as party respondents
vide Court order dated 24.09.2019 made in
CMP No.2050 of 2019)
(cause title amended vide order dated 23.04.2012 made
in MP(MD)No.1 of 2012)
... Respondents
PRAYER: Second Appeal filed under Section 100 Code of Civil
Procedure against the Judgment and Decree dated 07.12.2007 made in
A.S.No.36 of 2007 on the file of the Sub Judge, Devakottai confirming
the Judgment and Decree dated 27.03.2006 made in O.S.No.25 of 2005
on the file of the District Munsif Court, Devakottai.
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S.A(MD)No.1217 of 2008
For Appellants ... Mr.V.Janakiramulu
For Respondents ... No appearance for R3
R2 – service awaited
JUDGMENT
The first respondent, as the plaintiff, has filed the suit in O.S.No.
25 of 2005 on the file of the District Munsif, Devakottai, seeking the
relief of recovery of possession of the suit property. After trial, the said
suit was decreed. Challenging the said Judgment and Decree, the
deceased appellant/defendant filed the appeal in A.S.No.36 of 2007 on
the file of the Sub Court, Devakottai. After hearing, the first appellate
Court dismissed the appeal suit and confirmed the Judgment and Decree
passed by the trial Court. Aggrieved over the same, the deceased
appellant/defendant filed the present second appeal before this Court
raising the following substantial question of law:
“Whether the learned Subordinate Judge is correct
for not relying on the fact agreed by both the plaintiff and
defendant that the appellant/defendant is under continuous
possession for more than the prescriptive period?”
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S.A(MD)No.1217 of 2008
2. The case of the first respondent/plaintiff is that the suit property
is Plot No.14 in Block No.2 in Survey field No.180 situated at
Theralapur village. The Government has assigned the suit property to the
respondent/plaintiff on 03.01.1990 and he resided there. The first
respondent/plaintiff has paid house taxes for the suit property. The
deceased appellant/defendant is the son of the first respondent/plaintiff.
The deceased appellant/defendant was residing separately along with his
wife. Since the deceased appellant/defendant had no residential house in
the year 1995, the first respondent/plaintiff permitted the deceased
appellant/defendant to reside in the suit property on the condition that he
should vacate the suit property whenever demand was made by the first
respondent/plaintiff. The deceased appellant/defendant on the
inducement of his wife and relatives, acted to grab the suit property and
the deceased appellant/defendant gave a false complaint against the first
respondent/plaintiff and his wife. The first respondent/plaintiff and his
wife were acquitted in a case registered against him. Since the first
respondent/plaintiff wanted to reside in the suit property with his wife
and he has no other property, he cancelled the permission granted to the
deceased appellant/defendant through a legal notice, dated 04.11.2004
and to hand over the possession. Though the deceased
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S.A(MD)No.1217 of 2008
appellant/defendant received the notice, failed to hand over the
possession. Hence, the first respondent/plaintiff has filed the suit.
3. The case of the appellant/defendant is that the deceased
appellant/defendant is the son of the first respondent/plaintiff born
through his first wife. The mother the deceased appellant/defendant
passed away when he was in child. The first respondent/plaintiff and the
deceased appellant/defendant were jointly residing in the suit property.
Apart from that, there were some ancestral properties. The deceased
appellant/defendant was residing in the ancestral house situated at
Theralapur Kuravapachari and the first respondent/plaintiff after his
second marriage, was residing in Vellayan Oorani Melakarai at
Devakottai. While so, a plot was allotted to the first respondent/plaintiff
at Theralapur Village. The deceased appellant/defendant applied for
grant of assignment patta, but, the suit property was assigned to the first
respondent/plaintiff, since the first respondent/plaintiff is the elder
member of the family. The first respondent/plaintiff stated that the
ancestral house was required for him and hence, he requested the
appellant/defendant to construct a house in the suit property and to reside
there. The deceased appellant/defendant gave the ancestral property to
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S.A(MD)No.1217 of 2008
the first respondent/plaintiff and the deceased appellant/defendant made
further construction in the house already constructed in the suit property.
The deceased appellant/defendant has been residing in the suit property
from 1992. Further, he gave Rs.50,000/-, which is self-acquired money,
to the first respondent/plaintiff to improve his timber business. The first
respondent/defendant improved his business by the money given by the
deceased appellant/defendant. Out of such income, the first
respondent/plaintiff has constructed a pucca terraced house. Besides, he
let so many houses for rent in the name of his wife. While so, the first
respondent/plaintiff alienated the properties in the back side of the
deceased appellant/defendant on the inducement of his second wife and
relatives. When the deceased appellant/defendant enquired into this
matter, the first respondent/plaintiff and his second wife and her relatives
demolished the deceased appellant/defendant's construction. Hence, a
criminal case has been registered against the first respondent/plaintiff
and his second wife. The deceased appellant/defendant prepared to file a
suit for partition against the first respondent/defendant and the deceased
appellant/defendant has been residing in the suit property over the
statutory period.
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S.A(MD)No.1217 of 2008
4. The trial Court, considering the pleadings, framed the issues.
During trial, on the side of the first respondent/plaintiff, he examined
himself as P.W.1 and 10 documents were marked as Exs.A1 to A10. On
the side of the deceased appellant/defendant, two witnesses were
examined including himself as D.W.1 and D.W.2 and 10 documents were
marked as Exs.B1 to B10.
5. Considering the above pleadings, oral and documentary
evidence, the trial Court decreed the suit. Therefore, the deceased
appellant/defendant filed the appeal before the first appellate Court.
However, the first appellant Court dismissed appeal. Hence, the deceased
appellant/defendant has come before this Court.
6. This second appeal is pending from the year 2008 under the
caption for ' Notice of Motion'. For the past 15 years, this second appeal
has not been admitted and no substantial question of law has been
framed. During the life time of the first respondent/plaintiff, he sold the
suit property to the respondents 2 and 3 separately. Hence, they were
impleaded as respondents 2 and 3.
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S.A(MD)No.1217 of 2008
7. The learned counsel for the deceased appellant/defendant would
submit that the deceased appellant/defendant is in continuous possession
of the suit property more than 12 years and hence, the first
respondent/plaintiff is not entitled for the relief of recovery of
possession. He would further submit that the since the deceased
appellant/defendant has been enjoying the suit schedule property for
more than 12 years, he has perfected title by adverse possession. The trial
Court without considering the pleadings of the deceased
appellant/defendant with regard to the adverse possession, decreed the
suit. Hence, he prays for allowing this second appeal by setting aside the
Judgment and Decree of the trial Court as well as the first appellate
Court.
8. Heard the learned counsel for the deceased appellant/defendant.
There is no representation on behalf of the third respondent.
9. On a careful reading of the Judgment of the trial Court, it is seen
that the trial Court has rightly observed that the assignment patta (Ex.A1)
has been issued in favour of the first respondent/plaintiff. The deceased
appellant/defendant has also admitted that the suit property was assigned
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S.A(MD)No.1217 of 2008
only in the name of the first respondent/plaintiff. Further, the house tax
receipts (Exs.A2 to A8) produced by the first respondent/plaintiff
revealed that assignment for the house located in the suit property stands
in the name of the first respondent/plaintiff and he paid house tax for the
suit property. Though the deceased appellant/defendant has produced
three house tax receipts, the same also stands in the name of the first
respondent/plaintiff for the suit property. Further, the trial Court has
rightly observed that in pursuance of Ex.A1 assessment order, the
assessment has stood in the name of the first respondent/plaintiff for the
suit property. When the suit property is really assigned to the first
respondent/plaintiff only on application of the deceased
appellant/defendant, the deceased appellant/defendant should have
obtained an assignment patta in his favour and he ought to have taken
steps to transfer the assessment in his favour. However, the deceased
appellant/defendant has not taken any steps to change the assignment in
his favour. Further, the service connection bearing No.33 for the suit
property also stands in the name of the first respondent/plaintiff. The trial
Court has rightly found that deceased appellant/defendant has been
residing in the suit property only with the permission of the first
respondent/plaintiff. The deceased appellant/defendant has not produced
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S.A(MD)No.1217 of 2008
any documentary evidence for enjoyment for a continuous period of 12
years to claim adverse possession over the suit property. The trial Court
had rightly found that the suit schedule property is the self-acquired
property of the first respondent/plaintiff. In order to prove the same, the
first respondent/plaintiff has produced Ex.A1 assignment order and
assessment, service connection stands in the name of the first
respondent/plaintiff. Hence, considering the entire materials, the trial
Court has rightly decreed the suit. The first appellate Court also has
rightly dismissed the appeal. Therefore, under these circumstances, this
Court finds that the deceased appellant/defendant has not established his
case in this second appeal. Therefore, this Court does not find any
perversity in appreciating and re-appreciating the evidence by both the
Courts below and no question of law much less a substantial question of
law is involved in this second appeal.
10. In the result, this Second Appeal fails and the same is
dismissed. No costs.
22.08.2023
NCC : Yes/No
Index : Yes/No
Internet: Yes
skn
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S.A(MD)No.1217 of 2008
To:
1.The Sub Judge, Devakottai.
2.The District Munsif, Devakottai.
3.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.1217 of 2008
KRISHNAN RAMASAMY, J.
skn
S.A(MD)No.1217 of 2008
22.08.2023
https://www.mhc.tn.gov.in/judis
