Madras High Court
K.Manohar vs J.Saifulrahman on 19 June, 2023
S.A.No.242 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.06.2023
CORAM
MR.JUSTICE N.SESHASAYEE
S.A.No.242 of 2023
and C.M.P.No.7010 of 2023
1.K.Manohar
2.K.Kumar
3.K.Krishnan
4.Suriyakala
5.Poondinathan
6.Kavitha
7.Sivagami
8.Baby
9.Neela
10.Ammuni ... Appellants
Vs.
1.J.Saifulrahman
2.G.Nagarajan
3.M.Surendar
4.Kalaivanan ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 02.09.2022 passed in
A.S.No.315 of 2018 on the file of the learned IV Additional City Civil Judge
at Chennai, reversing the judgment and decree dated 12.04.2018 passed in
1/6
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2023
O.S.No.4604 of 2014 on the file of the learned XVIII Assistant City Civil
Judge at Chennai.
For Appellants : M/s.Kanda Kumar
For Respondents : Mr.K.P.Ashok for R1 to R3
ORDER
The defendants in O.S.No.4604 of 2014 on the file of the XVIII Assistant
City Civil Court, Chennai are the appellants herein. The suit is laid for
recovery of property. The trial Court dismissed the suit, whereas the first
appellate Court in A.S.No.315 of 2018 had reversed the decree of the trial
Court and decreed the suit. This is now in challenge.
2.The quintessential fact involved in this litigation is that the plaintiff claims
right to the property site under Ex.A2 sale deed dated 12.04.2010. The
defendants claim right to the superstructure vide Ex.A1 partition deed dated
31.01.1985. Ex.A1 itself indicates that the plaintiff's vendor is the owner of
the site. The mother of the defendants was the lessee of the said site and she
was the title holder of the superstructure.
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S.A.No.242 of 2023
3.Learned counsel for the appellants made the following submission :
● The suit property is part of a larger extent of 7 Kanis or about 9.5
acres. It was purchased by a certain Mohamed Abdul Hug Sahib in a
Court auction sale in 1912. The defendants seek title to occupy the
property under Ex.A1 partition deed that was executed within the
family of the defendants, dated 31.01.1985. While it is true in Ext.A1,
that the property partitioned thereunder is described as a property held
in leasehold and belonging to certain Abdul Kadar, the property which
the plaintiff has purchased under Ex.A2 dated 12.04.2010 is only a
fraction of the larger extent of about 9.5 acres stated above. It is not
the same property as the 'A' Schedule in Ex.A1. In short, there is a
dispute as to the identity of the property.
● The defendants deny the title of the plaintiff and when the burden is
on the plaintiff, the first Appellate Court has cast the burden on the
defendants and decided the case essentially on the basis of the
defendants' case.
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S.A.No.242 of 2023
4.This Court is not able to appreciate the submission of the learned counsel
and the reasons are :
a) The case of the defendants open with a statement in Ex.A1
partition deed wherein the property that was divided is stated
to be the property held in leasehold under certain Abdul
Kadar. The plaintiff has purchased a plot measuring 1811
sq.ft. under Ex.A2 dated 12.04.2010 which details how the
property has devolved from the Court auction purchaser
Mohamed Abdul Hug Sahib to Abdul Kadar and thereafter.
It is not the case of the defendants that they were not lessees
under Abdul Kadar. The pleadings of the defendants is
carefully scanned. They dispute the title of the plaintiff
which is permissible only if they are not lessees under Abdul
Kadar.
b) Turning to the other aspects, there is hardly any plea
regarding the identity of the property. So far as burden of
proof is concerned, in a suit for recovery of property, which is
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S.A.No.242 of 2023
held in lease, all that the plaintiff is required to do is to
terminate the lease and to file a suit for recovery of property
and no more. The burden therefore, will be on the defendants
to plea every alternate pleas that may help the defendants to
non-suit the plaintiff. Here in this case, the defendants have
chosen an easy path and chose to attack the title of the
landlord. Here lies the reason for failure before the first
appellate Court.
5.In the end, this Court does not find that the case involves any substantial
questions of law to be decided. This second appeal stands dismissed
accordingly. No costs. Consequently, the connected miscellaneous petition
is closed.
19.06.2023
kas
To:
1.The IV Additional City Civil Judge
Chennai
2.The XVIII Assistant City Civil Judge
Chennai.
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2023
N.SESHASAYEE, J.
kas
S.A.No.242 of 2023
and C.M.P.No.7010 of 2023
19.06.2023
https://www.mhc.tn.gov.in/judis
