Madras High Court
S.Vasudevan @ Rajendran vs S.Gunasekaran on 21 March, 2023
S.A.(MD).No.445 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.03.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.445 of 2022
and
C.M.P.(MD).No.5459 of 2022
S.Vasudevan @ Rajendran ... Appellant/Appellant/Defendant
Vs.
S.Gunasekaran ...Respondent/Respondent/Plaintiff
Prayer: Second Appeal is filed under Section 100 of CPC to call for the
records and set aside the judgment and decree dated 04.12.2021 in A.S.No.211
of 2018 on the file of the II Additional Subordinate Judge of Tiruchirappalli
confirming the judgment and decree dated 24.07.2018 in O.S.No.928 of 2007
on the file of the III Additional District Munsif Court,Tiruchirappalli and allow
this second appeal.
For Appellant : Mr.S.Vinod Sathya Lazar
For Respondent : Mr.P.Vinoth
1/7
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S.A.(MD).No.445 of 2022
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of
the Courts below. The defendant in the suit is the appellant herein. The
appellant/defendant is the brother of the respondent/plaintiff. The suit was filed
for declaration and for recovery of possession based on a settlement deed dated
10.12.2004 (Ex.A2) executed in favour of the respondent/plaintiff by his
mother.
2. Before the Trial Court, the respondent/plaintiff filed 23 documents on
his side, which were marked as exhibits A1 to A23, which included the
settlement deed (Ex.A2) dated 10.12.2004. On the side of the
appellant/defendant, he had filed only one document, namely, the caveat, which
was marked as Ex.B1, dated 15.02.2007. The appellant/defendant claimed in
his written statement that he is also a legal heir of his deceased mother along
with the respondent/plaintiff and therefore, he is also entitled for a share in the
suit schedule property. He also claimed that he is in lawful possession of the
suit schedule property for several years.
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S.A.(MD).No.445 of 2022
3. Based on the oral and documentary evidence, the Trial Court has
decreed the suit in favour of the respondent/plaintiff on the ground that the
appellant/defendant has been unable to establish that he is also entitled for a
share in the suit schedule property, being a legal heir of his deceased mother.
The Trial Court relying upon Ex.A2, namely, the settlement deed dated
10.12.2004 executed in favour of the respondent/plaintiff by his mother and
other documents, which were filed and marked as exhibits on the side of the
respondent/plaintiff, held that the respondent/plaintiff is the absolute owner of
the suit schedule property and therefore, granted the reliefs as prayed for in the
plaint.
4. Admittedly, the settlement deed dated 10.12.2004 (Ex.A2) executed in
favour of the respondent/plaintiff has not been challenged by the
appellant/defendant till date. The mother of both the parties, who had executed
the settlement deed dated 10.12.2004 (Ex.A2), died in the year 2007 itself.
Even during her lifetime, the settlement deed dated 10.12.2004 (Ex.A2) was
never challenged by the appellant/defendant, though he has contended before
the Trial Court that the said settlement deed was never executed by his mother
in favour of the respondent/plaintiff. No counter claim was also filed by the
appellant/defendant in the suit filed by the respondent/plaintiff, to declare the
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S.A.(MD).No.445 of 2022
settlement deed dated 10.12.2004 (Ex.A2) as null and void. Therefore, the
Trial Court was right in decreeing the suit in favour of the respondent/plaintiff
by granting the reliefs as prayed for in the plaint. The revenue records have
also been filed by the respondent/plaintiff, which have been marked as exhibits
before the Trial Court, which stands only in the name of the
respondent/plaintiff. The Lower Appellate Court has also confirmed the
findings of the Trial Court by dismissing the first appeal filed by the
appellant/defendant. There is no substantial question of law involved in this
Second Appeal as the Courts below have rightly rejected the contentions of the
appellant/defendant only based on the oral and documentary evidence available
on record. There is no merit in this Second Appeal.
5. At this stage, when this Court has taken a decision to dismiss the
Second Appeal, the learned counsel for the appellant/defendant would submit,
on instructions, that if sufficient time is granted to the appellant/defendant to
vacate the suit schedule property, he shall hand over the vacant possession of
the suit schedule property to the respondent/plaintiff. This Court is of the
considered view that since the dispute involves two brothers, six (6) months'
time can be granted to the appellant/defendant for handing over possession of
the suit schedule property to the respondent/plaintiff and for this suggestion,
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S.A.(MD).No.445 of 2022
the learned counsel for the respondent/plaintiff has also not raised any serious
objection. However, the appellant/defendant will have to file an affidavit of
unconditional undertaking before this Court to that effect.
6. For the foregoing reasons, this Second Appeal is dismissed with a
direction to the appellant/defendant to file an affidavit of unconditional
undertaking that the appellant/defendant would hand over possession of the suit
schedule property to the respondent/plaintiff within a period of six (6) months
from today. There shall be no order as to costs. Consequently, connected
miscellaneous petition stands closed.
7. Post the matter for filing of affidavit of unconditional undertaking by
the appellant/defendant on 28.03.2023.
21.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
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S.A.(MD).No.445 of 2022
To
1.The II Additional Sub Court,
Tiruchirappalli.
2.The III Additional District Munsif Court,
Tiruchirappalli.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD).No.445 of 2022
ABDUL QUDDHOSE, J.
Lm
S.A.(MD).No.445 of 2022
21.03.2023
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