Madras High Court
Mrs.Mayili vs T.Vasantha on 28 November, 2023
Author: P.T. Asha
Bench: P.T. Asha
C.M.P.No.6203 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.P.No.6203 of 2023
in
SA.SR.No.69116 of 2021
[C.M.P.No.6203 of 2023]
Seerangan (Since Died)
1.Mrs.Mayili
2.Gurunathan
3.Boopathi
4.Prabhu
... Petitioners/Appellants
Vs.
1.T.Vasantha
2.T.Senathipathi
3.Shanmugam
4.Manimuthu ... Respondents/Respondents
PRAYER in C.M.P.No.6203 of 2023: Civil Miscellaneous Petition filed
under Order 41 Rule 3(A) of Civil Procedure Code to condone the delay of
3273 days in filing the above Second Appeal S.A.SR.No.69116 of 2021.
1/13
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C.M.P.No.6203 of 2023
[SA.SR.No.69116 of 2021]
1.Mrs.Mayili
2.Gurunathan
3.Boopathi
4.Prabhu ... Appellants
Vs.
1.T.Vasantha
2.T.Senathipathi
3.Shanmugam
4.Manimuthu
... Respondents
PRAYER in SA.SR.No.69116 of 2021: Second Appeal is filed under
Section 100 of C.P.C against the Judgement and Decree passed in
A.S.No.20 of 2011 dated 22.02.2012 by the learned Subordinate Judge,
Sankagiri by confirming the Decree and Judgement passed in
O.S.No.89/1999 dated 05.02.2010 by the learned District Munsif,
Sankagiri.
For Appellants : Mr. M.Nanda Kumar
For Respondents : M/s.A.Subramani [R.1 and R.2]
: R.3 and R.4 - Dispensed with vide memo
Sn.38133 dated 08.11.2023.
2/13
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C.M.P.No.6203 of 2023
JUDGMENT
The above C.M.P.No.6203 of 2023 is filed for condoning the delay
of 3273 days in filing the Second Appeal.
2. The Second Appeal (SA.SR.No.69116 of 2021) is filed challenging
the judgement and decree dated 22.03.2012 passed in A.S.No.20 of 2011
in and by which the learned Subordinate Judge, Sankagiri had confirmed
the judgement and decree dated 05.02.2010 passed by the learned District
Munsif, Sankagiri in O.S.No.89 of 1999. The facts are briefly set out
herein below and the parties are referred to in the same ranking as before
the Trial Court.
3. In the affidavit filed in support of the condone delay petition, the
appellants/petitioners herein would submit that the defendant Sreerangan
had passed away on 26.10.2016 and prior to that he was sick and
bedridden and after his demise, they had to collect all the papers and were
advised to file a Second Appeal. The appellants/petitioners would submit
that they were depending upon their father who was alone taking care of
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the case and after his demise, it had taken several days for the
appellants/petitioners to collect the papers and thereafter in the year 2019
the COVID-19 pandemic had set in and therefore the delay of 3273 days
had crept in.
4. The plaintiffs/respondents had filed a counter vehemently
opposing the application for condoning the delay. They would submit that
the delay is nearly 8 years and 11 months. The appeal suit had been
dismissed on 22.03.2012 and the plaintiffs had filed an execution petition
in EP.No.19 of 2019 on the file of the District Munsif Cum Judicial
Magistrate Court, Edapadi. It is only thereafter that the counsel for the
judgement debtor had appeared on 25.10.2019. Subsequently, the
execution proceeding was posted for orders on 28.04.2023. It was only
then that the judgement debtor reported that an appeal had been filed and
was pending. The defendants/petitioners herein had filed EA.No.1 of 2023
in the execution proceedings for stay which was dismissed by the learned
District Munsif cum Judicial Magistrate Court, Edapadi on 04.10.2023.
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5. It is also their case that the records would show that the Second
Appeal has been filed only on 09.08.2021 and there is no explanation as to
why no steps were taken from 22.03.2012. They would further submit that
the conduct of the defendants/petitioners would prima facie establish that
their only intent is to drag on the proceedings and not permit the
plaintiffs/respondents herein to enjoy the fruits of his decree. The learned
counsel also made their submission on the same lines.
6. Before proceeding to consider the bonafide of the
defendants/petitioners in the condone delay petition, it would make useful
reading the facts as set out so as to find out if the defendants/appellants
have a substantial case to put across in appeal.
7. The plaintiffs/respondents had filed the suit O.S.No.89 of 1999 on
the file of the District Munsif, Sankagiri (i) for a declaration of their title
to the suit properties, (ii) for recovery of possession and (iii) for a
permanent injunction restraining the defendants from in any manner
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putting up, demolishing or reconstructing upon the suit schedule
properties.
8. It is the contention of the plaintiffs' that the 1st plaintiff’s husband
Thiyagaraja Gurukkal had possessed several items of properties as per a
partition deed dated 13.11.1959. He had put up a thatched house in Survey
Nos.485/1 and 485/2 which he had let out. The suit properties were
originally leased out to the father of the defendants/appellants herein in the
year 1982. Defendants 1, 2 and 3 took up items 1, 2 and 3 respectively on
rent. The monthly rent was fixed at Rs.15/- per month and they were
regular in the payment of rent to the 1st plaintiff’s husband. The 1st
plaintiff's husband died in the year 1983. From the date of the demise of
her husband, the 1st plaintiff was in management of the entire property of
her husband including the suit property and had been paying the house tax
and kist in respect of the said property. The 1st plaintiff and her children
had partitioned the properties of her husband under a partition deed dated
29.05.1989 and in the said partition, the suit properties were allotted to her
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share.
9. Thereafter, from the year 1990 onwards, the defendants had
stopped paying the rent. Despite several attempts, they had not come
forward to pay the rent and thereafter they started claiming a right over the
property. The plaintiffs had also warned the defendants from demolishing
the houses on the suit property. However, the defendants proceeded to pull
down the thatched house and were attempting to construct a Pakka House
in the suit property. Therefore, the plaintiffs had filed O.S.No.65 of 1993
on the file of the District Munsif, Sankari for a declaration of her title and
possession of the suit property. The 2nd defendant had filed a written
statement in the above suit O.S.No.65 of 1993 which was adopted by all
the other defendants. The defendants had denied the title of the plaintiffs
to the suit property and had contended that they had perfected title to the
property and had taken a defense that the suit without issuing notice under
Section 106 of the Transfer of Property Act is liable to be dismissed.
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10. Thereafter, the 1st plaintiff had filed I.A.No.12 of 1999 seeking
to withdraw the suit with an opportunity to file a fresh a suit. This was
allowed on 05.02.1999. The 1st plaintiff had issued a notice to the
defendants on 15.04.1999 asking them to vacate and surrender possession
of the suit property on or before 01.05.1999. The 1st defendant had
received the notice on 19.04.1999 and the 2nd and the 3rd defendants had
received it on 16.04.1999. Despite the notice, the defendants did not come
forward to vacate the property. Therefore, the plaintiffs had come forward
with the suit in question.
11. The defendants had filed a written statement inter alia denying
the allegations contained in the plaint. It is their case that they were never
tenants under anybody much less Thiyagaraja Gurukal or the plaintiffs.
They would contend that the house was never constructed by the
Thiyagaraja. They would further submit that the suit property is situate in
a Hamlet which has been in existence for several years. There are other
persons living in the Hamlet and it is described as a village with its own
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temple, public street light etc. All of these according to the defendants
have been suppressed by the plaintiffs. The defendants had submitted that
the documents had been fabricated by the plaintiff to gain unlawful
advantage over the defendants. The defendants would submit that the
houses were constructed by their ancestors several decades ago and they
have been in open continuous and hostile possession of the suit property
much beyond the statutory period and therefore they have perfected title
by adverse possession to the property.
12. The learned Trial Judge had framed 4 issues. Before the Trial
Court, the 2nd Plaintiff had examined himself as P.W.1 and marked Ex.A.1
to A.43. On the side of the defendants, the 1st defendant had examined
himself as D.W.1 and marked Ex.B.1 to B.9. The Commissioner’s Report
and Plan were marked as Court Ex.C.1 to C.3.
13. The learned Trial Judge on perusing the evidence on record held
that the plaintiffs had proved their title and possession and enjoyment of
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the suit property by producing the revenue records originally in the name
of Tayagrajan and thereafter in the name of the 1st plaintiff. The
defendants who set up an independent title had not proved the same.
Ultimately, the learned Trial Judge had decreed the suit O.S.No.89 of 1999
as prayed for. Against which the defendants have filed A.S.No.20 of 2011
on the file of the Subordinate Judge, Sankagiri.
14. The Lower Appellate Court had also confirmed the judgement
and decree of the Trial Court. Against which this Second Appeal has been
filed and that too with a delay of 3273 days.
15. The defendants have not been able to establish their title or
possession of the property. Both the Courts below have rightly applied
their minds to the evidence available on record and passed the judgement.
No serious objections to this concurrent judgement and decree has been
made out. Therefore, there is no substantial question of law to be decided
in the instant case.
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16. Admittedly, the appeal A.S.No.20 of 2011 which is filed by the
defendants came to be dismissed on 22.03.2012. However, no steps were
taken by Seerangan, the defendant to obtain the papers and file an appeal.
Ultimately, he passed away only on 26.10.2015, nearly 3 years after the
passing of the decree. However, there is absolutely no explanation as to
why the appellant’s father had not taken any steps for 3 years to file an
appeal. That apart, even according to the deponent, he had received the
entire papers in the year 2019. However, the second appeal has been filed
only in the year 2021 i.e, after the lapse of two years. There is no
explanation for this delay also. The plaintiffs/petitioners have only pleaded
that in the light of the lockdown owning to the covid pandemic, the delay
of 3273 days has crept in.
17. Apart from the fact that the delay has not been satisfactorily
explained, even on the merits, the suit which is the subject matter of the
appeal is itself not maintainable. Therefore, no useful purpose would be
served by condoning the delay and numbering the Second Appeal since no
question of law has been made out in the Second Appeal.
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18. In fine, C.M.P.No.6203 of 2023 is dismissed and consequently,
the Second Appeal in SA.Sr.No.69116 of 2021 is also stands rejected at
S.R. stage itself. No costs.
28.11.2023
Index : Yes/No
Speaking order/non-speaking order
Neutral Citation: Yes/No
shr
To
1. The Subordinate Judge, Sankagiri
2. The learned District Munsif, Sankagiri.
3. The Section Officer, V.R.Section, High Court, Madras
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P.T.ASHA, J.,
shr
in
28.11.2023
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