Allowed

K.Somasundaram v. S.Sundaramoorthy

Madras HC10 Nov 2016CRP/4252/2011

Case brief

AI extract

What is this about?

In a civil revision petition, this High Court allowed the petitioner's appeal against the dismissal of a suit for recovery of possession. The Court held that documents proving possession and dispossession were sufficient to set aside the lower court judgment under Section 6 of the Specific Relief Act.

What did the court decide?

Civil revision petition allowed; earlier order set aside; suit decreed as prayed for; defendants directed to hand over possession within three months.

K.Somasundaram Vs S.Sundaramoorthy — Property and Title | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 29.07.2016

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PRONOUNCED ON : 10.11.2016

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CORAM

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THE HON’BLE MR.JUSTICE M.V.MURALIDARAN

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CRP.NO.4252 of 2011

K.Somasundaram

…. Petitioner

Vs.

1.S.Sundaramoorthy

2.Saroja

… Respondents

Prayer: Civil Revision Petition filed under Section 115 of C.P.C., against the judgment and decree dated 06.06.2011 passed in O.S.No.2 of 2009, on the file of the District Munsiff Court at Tiruvarur.

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Petitioner : Mr.K.V.Ananthakrushnan

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Respondents : Mr.S.Sounthar

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O R D E R

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The plaintiff in the suit in O.S.No.2 of 2009, on the file of the District Munsif Court, Tiruvarur, is the revision petitioner before this Court, challenging the order of dismissal of the suit in O.S.No.2 of 2009 on 06.06.2011, the present civil revision petition has been filed.

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The case of the plaintiff is that he owns a property in S.No.116/1C measuring 5 ares in Kunniyur Village in Tiruvarur District and having his house bearing Door No.361 and shop building bearing door No.360. The patta was issued in the year 1991 and the same was stand in the name of the plaintiff. The name of the plaintiff has also shown in the Chitta and Adangal in respect of the suit schedule of property.

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The plaintiff further states that he was running a petty shop in the suit property bearing Door N.360 and local Panchayat has also assessed the property and issued a tax receipts in the name of the plaintiff. The defendants are the residents of nearby village, who have purchased some extent of land in S.No.116/4. But, they have no right over the suit property measuring to an extent of 5 ares.

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When the attempt was made by the first defendant directing the plaintiff to vacate the suit schedule of property, at that time, the plaintiff got doubt about the acts of the defendants and he filed caveat petition before the Court below.

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The plaintiff has also come forward by saying that when the plaintiff making a search in the Sub-Registrar Office, Tiruvarur, to know in particulars of the documents in respect of purchase made by the second defendant and the plaintiff came to know that the second defendant has purchased the property to an extent of 10 cents in S.No.116/4 with a thatched building from one Jeyanthi through a registered sale deed dated 30.06.2008. There was no building in S.No.116/4 and it was also not handed over to the second defendant according to the said sale deed. Therefore, the plaintiff further states that the defendants cannot lay hands over the shop building more particularly any extent in the suit property lawfully.

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In reply to the caveat filed by the plaintiff, the second defendant’s vendor issued legal notice to the plaintiff. But, even then in the said notice, there was no whisper about the transfer of property by the said Jeyanthi to the second defendant as per law. The plaintiff further states that he is in possession and enjoyment of the suit

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schedule of property.

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The plaintiff states that on the wrong guidance, the property was purchased by the second defendant along with their community people have illegally trespassed into the suit property on 21.02.2008 and remained there unlawfully. The police authorities also did not come to the rescue of the plaintiff as the defendants are highly influenced people. The defendants have dispossessed the suit property from the plaintiff without his consent unlawfully. Therefore, the plaintiff has filed the above suit for recovery of possession as per Section 6 of Specific Relief Act.

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The second defendant on summon from the Court engaged his counsel and filed his written statement, which was adopted by the first defendant. The second defendant has denied all the averments as contend in the plaint.

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The case of the second defendant is that originally one Kandasamy on 04.05.1990 had transferred the property to an extent of 0.10 cents out of the total extent of 41 cents in R.S.No.16 inclusive of the suit property in favour of his son one Mr.Yoganathan, the younger brother of the plaintiff through a registered settlement deed

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on 08.10.2007 the said Yoganathan sold the same to one S.Jeyanthi, who in turn sold the said property to the second defendant through registered sale deed dated 30.06.2008. But, the second defendant further states that in the year 1991, the said Kandasamy fraudulently obtained patta in his name under the UDR scheme taking advantage of the absence of his son Yoganathan and thereafter the said Kandasamy had settled an extent of 0.04 cents in favour of the plaintiff which has not the suit property. The UDR scheme has also a failure one. But, the second defendant stated that the plaintiff’s name has found in the Panchayat records due to the inadvertence of the revenue authorities. But, he states that he had in possession and enjoyment of the suit property. The second defendant also states that the plaintiff has chosen the new survey number and he has trying to take illegal advantage. The second defendant states that the defendants has attempted to take possession by illegally from the plaintiff has totally false and therefore, the suit filed under Section 6 of the Specific Relief Act has not maintainable since the plaintiff has not fulfilled the conditions as per Section 6 of Specific Relief Act. Hence, the second defendant prays the Court to dismiss of the suit with cost.

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After filing the additional written statement by the second

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defendant, which was adopted by the first defendant and denied all the averments made in the plaint. The second defendant stated that the Electricity connection was stand in the name of one Mahadevan, who was in possession of the suit property before purchase by the second defendnat’s vendor. The second defendant further state that after purchase the vendor’s husband Balabaskaran conducted fertilizer business under the name and style of “Sri Bala Agencies” in the suit property.

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It was further stated by the second defendant is that in the said Bala Agencies, the plaintiff was working as an Assistant and the vendor of the second defendant had entered into sale agreement with Yoganathan before purchasing the suit property. The Door Number of the suit property was 2-47 previously and was changed as 360. The plaintiff has taken undue advantage of change in the door number at the time of purchasing the property. The second defendant was put in possession by his vendor and the second defendant has running a petty shop in the suit property. Therefore, the second defendant further states that the cause of action alleged in the plaint is false. The plaintiff has not dispossessed by the defendants since the plaintiff never in possession of the suit property. Hence, he sought for dismissal of the suit with cost.

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In this case, on the plaintiff’s side PW1-Mr.Somasundaram, the plaintiff herein and PW2-Balasubramaniam were examined as plaintiff’s witnesses and Exhibits A1 to A18 were marked and on the side of the defendants’, DW1-Sundaramoorthy, the first defendant and DW2-Balabaskaran were examined and Exhibits B1 to B9 were marked.

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After hearing the arguments advanced by both sides and perusal of the records and the deposition made by the witnesses and the documents, the trial Court namely the District Munsif Court, Tiruvarur was pleased to dismissed the suit, on the ground that the plaintiff has not proved that he was the owner of the property and not produced any document to prove his possession of the property. The learned Judge also states that on behalf of the plaintiff, excepting the plaintiff and the PW2, the plaintiff has not examined anybody to prove his case. Since the plaintiff states that the evidence of PW1 has not enough to prove dispossession by the defendants. It requires some corroboration, which was not made out by the plaintiff. In this suit, the trial Court has framed originally 3 issues as follows:-

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"1.Whether the plaintiff was dispossessed from the suit property as alleged in the suit?

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2.Whether the plaintiff is entitled to possession?

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3.To what other relief?"

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13.After recasting the following issues are framed:

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"1.Whether the plaintiff was dispossessed from the suit property

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as alleged in the suit?

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2.Whether the plaintiff is entitled to recovery of possession as prayed for?

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3.To what other relieves?"

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14.The learned Judge also states that the evidence of PW2 has

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not reliable because he does not know anything about this case. The plaintiff has tried his level best to lend credence to his case through the evidence of PW2, but miserably failed in that attempt. Therefore, the plaintiff has failed to prove the dispossession of the suit property by the defendants as alleged in the suit.

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15.The learned Judge also states that Section 6 of the Specific Relief Act, gives a special privilege to persons in possession who take action promptly. In case if the person is dispossessed, he can recover his possession simply by proving (1)that he was in possession,

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(2)that he has been dispossessed by the defendant, (3)that the

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dispossession is not in accordance with law, (4)that the dispossession took place within 6 months of the suit.

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16.The learned Judge also states that in the instant case, the plaintiff has to prove the ingredients stated supra to recover possession. Further, the suit under Section 6 is a summary suit. While discussing of the documents filed by both the parties and evidence has given by both the parties, the learned Judge has dismissed the suit by saying that the plaintiff has failed to prove the dispossession of the suit property by the defendants. Therefore, by considering the Issue No.2, the learned Judge rejected the Issue No.2 that the plaintiff has not entitled to recovery of possession as prayed for. But, the learned Judge had accepted the ownership and possession of the suit property. Challenging the said judgment and decree, the present civil revision petition has been filed by the plaintiff under Section 115 of Civil Procedure Code.

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17.Heard Mr.K.V.Ananthakrushnan, learned counsel appearing for the petitioner and Mr.S.Sounthar, learned counsel appearing for the respondents.

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18.Though, the trial Court has framed 3 issues namely

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1.Whether the plaintiff was dispossessed from the suit property as alleged in the suit? 2.Whether the plaintiff is entitled to possession? and 3.To what other relief? Whether the trial Court has answered all the three issues in a proper manner or not, whether the plaintiff has proved his possession or dispossession of the suit property by the defendants has to be considered by the Court.

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Heard the arguments and perused the documents and judgments. Though, the trial Court has dismissed the suit, but the Court below has hold that the defendants have failed to disprove the possession of the plaintiff whereas the plaintiff has produced documents Exs.A1 to A4, which clearly proves his possession and the trial Court has held that the plaintiff is in possession and enjoyment of the suit scheduule of property. It is the case of the plaintiff that he has purchased the suit property on 30.06.2008 from one Jayanthi, who in turn purchased the property from one Yoganathan, brother of the plaintiff on 08.10.2007. The said Yoganathan got the suit property through registered settlement deed dated 04.05.1990. After purchasing the property, the plaintiff has in absolute possession and enjoyment of the suit property. The plaintiff has got the patta in his name, which was issued by the Revenue authorities in the year 1991 and the same was marked as Ex.A1. The plaintiff has also marked

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the documents Exs.A2 and A3 namely Chitta extract and Adangal extract, which are stand in the name of plaintiff. Therefore, the plaintiff clearly proved that the suit schedule of property is stand in the name of the plaintiff as per Exs.A1 to A3. On fair reading of the said Exs.A1 to A3 clearly shows that Ex.A1-Patta was issued under 'Natham Nilavari Thittam' in the name of the plaintiff. Ex.P2-Chitta extract sands in the name of the plaintiff, which was issued on 21.11.2008 for the fasali 1418. Ex.A3-Adangal extract, which was issued on 21.11.2008 for the fasali 1417. Therefore, the trial Court has come to a conclusion that the Exs.A1 and A2 clearly stands in the name of the plaintiff and it is made clear that the plaintiff is in absolute possession and enjoyment of the suit property. The plaintiff has produced Ex.A4-House tax receipt, which was issued on 24.12.2008 in the name of the plaintiff. Ex.A4 shows that it is related to the suit schedule of property only as the door number is mentioned as 2/360. Apart from this, Ex.A17-Professional tax receipt, which was issued on 04.10.1997, which clearly proved that the plaintiff was running petty shop in the suit property. Though, the Electricity connection stand in the name of one Mahadevan, originally he was running business in the suit property during his father period, which

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was not disputed by the defendants also. In the additional written statement, the defendants were stated that the said Mahadevan was

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there in the suit property before the purchase of the suit property by their vendor. Ex.A13 and Ex.A15, which has demand notice and Ex.A12 and Ex.A16, which are all the E.B. receipts stand in the name of the plaintiff. It is also made clear that Exs.A4, A12, A13, A15 and A16 are also stand in the name of the plaintiff in respect of the suit schedule of property, which has clearly proves that the plaintiff possession and enjoyment of the suit schedule of property before his dispossession. Therefore, it is made clear that the trial Court namely the District Munsif Court, Tiruvarur himself admitted that the plaintiff has produced Exs.A13 and A15 demand notice for extra deposit amount issued by the Electricity Board and Exs.A12 and A16 along with Exs.A4, A12, A13, A15 and A16 are all stand in the name of the plaintiff, which clearly proves that the plaintiff has in possession and enjoyment of the suit property.

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On behalf of the defendnats' side, they have produced

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Exs.B1 to B9. Ex.B1 is the settlement deed executed in favour of Yoganathan. In Ex.B1 the survey number is mentioned as 116/1 and the door number is mentioned as 2-47, with electricity connection. Ex.B4-the sale deed executed in favour of Jayanthi in accordance with Ex.B2 the S.No. is mentioned as 116/1 and the new S.No. as 116/4. Though, the door number has mentioned as 2-47 and there has no

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electricity connection. Exs.B1, B2, B4 and B6 nowhere suit s.no. has found as well as door no.2/360 has found. Therefore, it is made clear that from Exs.B1, B2, B4 and B6 are not related to the suit schedule of property. Even in all the above said deeds, in the description of property it is mentioned as thatched hut built up of sand wall. But in the written statement, the defendants stated that the door No.2/360 with a thatched building with walls of bricks and mud mortar. Therefore, it is made clear from the written statement of the defendants that the defendants were stating false statement only and are contradicting the description of property mentioned in Exs.B1, B2, B4 and B6.

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On perusal of documents, this Court noting that in all the sale deeds the door No. is mentioned as 2-47 only and nowhere it is mentioned as 2/360. Therefore, it is made clear that Ex.B5 is a forged document. The document of Ex.B7-E.B. receipts produced by the defendants stand in the name of Mahadevan from 11.08.2008 and for subsequent years only.

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The defendants ought to have produced E.B. receipts prior to 11.08.2008, but no such documents were produced. The defendants claim that their previous vendor's husband was running

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fertilizer business in the suit property. They were able to produce only Ex.B8 license for fertilizer business in the suit property. But, they were not able to produce any other documents of purchase of fertilizer and sale of it. The defendants also failed to produce any professional tax receipt as well as house tax receipt. The document Ex.B8 the door no. is mentioned as 2/360 only and the document Ex.B6 the door no. is mentioned as 2-47. Therefore, it is made clear that Ex.B6 was executed anterior to Ex.B8. Thefore, the defendants would be able to produce any documents to show the transaction of fertilizer business and the trial Court has come to a conclusion that Ex.B8 is a document prepared only to make an illusion that the defendants have purchased the suit property.

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Though, the trial Court has come to a conclusion that the plaintiff was not dispossession of the suit schedule of property. Hence, the Court below has dismissed the suit.

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In my considered view that when the plaintiff himself has admitted in his plaint in para-5 as follows:-

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"The Defendants having felt that they have been wrongly guided in the purchase of the property wanted to take possession of the plaint mentioned shop building by

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illegal force, as they command considerable strength in the area. Hence floating all legal norms and procedures the Defendants formed themselves into an unlawful assembly with large number of their community people trespassed into the thatched shop building bearing Door No.360 on 21.12.2008 by broke open the Door and remain there unlawfully since then. The Defendants have illegally entered into the suit shop building on 21.12.2008 and remain unlawfully which are serious offences. As they have no regard for the law of the land, the Plaintiff could not overcome and was seeking police help. But the Tiruvarur Taluk Police authorities, as happening elsewhere in Tamil Nadu keep mum and are tight lipped. The unfortunate plaintiff tried his best to save his property but all his attempts proved to be futile. A copy of Complaint sent to the Inspector of Police, Tiruvarur Taluk Police Station is also filed herewith."

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Not only in the plaint, the plaintiff also deposed in his examination as follows:-

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"gpwF 21/12/2008 md;W fhiy gpujpthjpfs; jhth ,lj;jpy; cs;s

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kspif filia ehd; g{l;o itj;Jtpl;L btspa{h; brd;W jpUk;gp te;J ghh;j;jnghJ gpujpthjpfs; rl;l tpnuhjkhf filapd; g{l;il cilj;J mj;JkPwp cs;ns g[Fe;J filapy; itj;jpUe;j rhkhd;fis nrjg;gLj;jpaJld; vd;ida[k; jpl;o jhf;fte;J Fw;wk; g[hpa[k; bray;fspYk; <Lgl;ldh;/"

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In fact PW2 Balasubramanian also deposed in his examination as follows:

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"thjpia vdf;F ed;F bjhpa[k;/ mth; xU kspiff; fil elj;jp te;jhh;/

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me;j fil gpujhd rhiyapy; fpHf;F nehf;fp cs;sJ/ Rkhh; 2 Mz;LfSf;F

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Kd;djhf thjp nrhkRe;juj;jpd; mDgtj;jpy; ,Ue;j fil g{l;lg;gl;Ltpl;lJ/ gpwF rpy ehl;fs; fHpj;J mjpy; Xntyf;Fo Re;juK:h;j;jp kw;Wk; mth; FLk;gj;jpdh; fil elj;j Muk;gpj;jdh;/ filia g{l;lg;gLk; Kd;dh; nrhkRe;juk; bjhlh;e;J tpahghuk; bra;J te;jij mwpntd;/"

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Thus being the case, it is made clear that when the plaintiff has proved the lawful possession of the suit schedule of property and also dispossession of the property from the suit schedule of property from the documents filed by him. But, how the trial Court comes to a conclusion that the plaintiff has not proved his dispossession of the property from the suit schedule of property by the defendants. When the plaintiff himself claimed that he was dispossessed from the suit

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schedule of property and the same is proved with the documents, the Court ought to have decreed the suit.

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Section 6 of the Specific Relief Act, 1963 stated as follows:-

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“6.Suit by persons dispossessed of immovable

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property.-

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(1)If any person is dispossessed without his consent

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of immovable property otherwise than in due course of

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law, he or any person claiming through him may, by suit, recover possession thereof, not withstanding any other title that may be set up in such suit.

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(2)No suit under this section shall be brought-

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(a)after the expiry of six months from the

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date of dispossession; or

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(b) against the government.

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(3)No appeal shall lie from any order or decree

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passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

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(4)Nothing in this section shall bar any person from

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suing to establish his title to such property and to recover possession thereof.”

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Admittedly, the plaintiff has stated that on 21.12.2008, the defendants were dispossessed the plaintiff from his property and hence immediately on the same day he has given a police complaint to the local Tiruvarur Taluk Police Station, in which they were refused to receive the complaint given by the plaintiff. The copy of the complaint dated 21.12.2008 also marked as Ex.A9, which is a complaint given by the plaintiff to the Police. Thereafter, the plaintiff has filed the suit on 29.12.2008, i.e. within six months as per Section 6 of the Specific Relief Act.

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When the trial Court has comes to conclusion that Exs.B1, B2, B4 and B6 are not related to the suit schedule of property, then the trial Court ought to have considered that the defendans dispossessed the plaintiff from the suit property. When the trial Court comes to a conclusion that the Ex.B5 is not related to the suit property, then the Court should come to a conclusion that the plaintiff was dispossessed the suit schedule of property. The trial Court also lacks of his eye that when the defendants themselves disproved their possession through the documents in Exs.B1, B2, B4 and B6 and the plaintiff has clearly established the dispossession by the defendants through the documents Exs.A4, A12, A13, A15 and A16 and then the trial Court should considered the plaintiff's case.

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Therefore, I am of the considered opinion that whether the trial Court himself come to a conclusion as per the Exs.A1 to A16 and proved that the plaintiff is in possession. But the Court went in wrong believe that the plaintiff was not dispossess. It is made clear that as per Ex.B5, which is clearly proved that the document was not in respect of the suit schedule of property. Therefore, when the possession of the plaintiff was valid and correct and the defendants themselves were dispossessed the plaintiff from the suit schedule of property on 21.12.2008, which was clearly proved through the above documents. The plaintiff is entitled for a decree as per Section 6 of the Specific Relief Act.

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Accordingly, I am inclined to pass the following orders:-

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(a)this civil revision petition is allowed by

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setting aside the judgment and decree in O.S.No.2 of 2009, dated 06.06.2011, on the file of the District Munsif Court, Tiruvarur;

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(b)the suit is decreed as prayed in the plaint

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and the defendants are hereby directed to hand over

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the peaceful possession of the suit property to the plaintiff within a period of three months from the date of receipt of a copy of this order.

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33.In the result, the civil revision petition is allowed. No costs.

10.11.2016

Index:Yes

Internet:Yes

The District Munsif Court,

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Tiruvarur.

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M.V.MURALIDARAN, J.

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Pre-Delivery Order made in CRP(NPD)No.4252 of 2011

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10.11.2016

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http://www.judis.nic.in

K.Somasundaram v. S.Sundaramoorthy

Case brief

What is this about?

What did the court decide?

K.Somasundaram v. S.Sundaramoorthy

Case brief

What is this about?

What did the court decide?

What the court decided

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