Dismissed

Duraikannu Udayar,(Died) v. Kuppusami Udayar(Deceased)

Madras HC9 Jul 2021SA/548/2011

Case brief

AI extract

What is this about?

Second Appeal challenging declaration of title and possession. Held: Appellants failed to prove ancestral title or adverse possession; trial court erred in finding their possession unproven. Lower appeal affirmed; second appeal dismissed.

What did the court decide?

Judgment and decree of Principal District Court dated 23.09.2010 confirmed; Second Appeal dismissed.

Duraikannu Udayar,(Died) Vs Kuppusami Udayar(Deceased) — Property and Title | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 09.07.2021

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CORAM

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THE HON'BLE Ms.JUSTICE P.T.ASHA

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S.A.No.548 of 2011 and M.P.No.1 of 2011

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1.Duraikannu Udayar (died)

2.Sudhakar

3.D.Kumari

4.D.Prabakar

5.Vanitha

... Appellants/Defandants in Trial Court

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[2^nd Appellant is Legal Representative of the deceased 1^st appellant vide Court Order dated 19.04.2021 in C.M.P.No.127/21 in S.A.No.548/11 (PTAJ)]

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[Appellants 3 to 5 are brought on record as Legal Representatives of the deceased 1^st appellant vide Court order dated 19.04.2021 made in C.M.P.No.128 / 2021 in S.A.No.548/11 (PTAJ)]

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1.Kuppusami Udayar (Deceased)

2.Porkalai

3.Valli

4.K.Kumar

5.V.Selvi ... Respondents/Plaintiff

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in Trial Court

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[RR2 to 5 brought on record as Legal Representatives of the deceased sole Respondent vide Order of Court dated 22.07.2014 made in M.P.Nos.1 and 2 of 2013]

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https://hcservices.ecourts.gov.in/hcservices/

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PRAYER : Second Appeal is filed under Section 100 of code of Civil Procedure against the judgment and decree dated 23.09.2010 passed in A.S.No.62 of 2010 on the file of the Principal District Court, Villupuram reversing the judgment and decree dated 31.08.2009 passed in O.S.No.471 of 2006 on the file of the Principal District Munsif's Court, Villupuram.

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For Appellants : Mrs.R.Meenal

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For Respondents : Mr.N.Suresh

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J U D G M E N T

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The defendants have filed the above Second Appeal challenging the Judgment and Decree of the learned Principal District Judge, Villupuram, whereby, the learned Judge had allowed the appeal filed by the plaintiff and reversed the Judgement and Decree of the learned Principal District Munsif, Villupuram in O.S.No.471 of 2006.

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The parties are referred to in the same litigative status as before the trial Court.

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Plaintiff's case:

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The plaintiff has filed a suit for a declaration of his title to the suit property and for a direction to the defendants to deliver the possession of the suit property. The property in question is an extent of 5 ¼ cents out of a total extent of 10.88 acres in S.No.130/1 of Veeramur Village, Villupuram. The plaintiff would contend that he had purchased the suit property from one Balambal under the registered Sale Deed dated 23.09.1978 for a valuable consideration of Rs.1000/-. The plaintiff had been using the said premises for storing manure and stacking hay etc., Thereafter, he had constructed a hut and was residing there along with his family. The roof of the hut was made up of dry sugarcane leaves and therefore, the plaintiff had to constantly replace the same and that apart the side mud wall also started crumbling which necessitated the plaintiff to move out from the suit premises. He therefore, shifted to the residence of his brother-in-law, who lived close by.

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Meanwhile, the 1^st defendant who was a distant relative of the plaintiff's wife requested permission to store cement bags in the suit premises as he was constructing a house nearby. The said permission was also given by the plaintiff. The permission was given to the 1^st defendant in the year 2002. The 1^st defendant had also completed his construction in or around the middle of 2004 and the plaintiff was under the genuine impression that the property would be delivered back to him.

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However, the 1^st defendant did not hand over the possession, but on the contrary, had put his son, the 2^nd defendant in possession of the property. The 2^nd defendant put up a thatched hut in the said premises after the plaintiff had requested the 1^st defendant to vacate the premises vide legal notice, dated 26.07.2006. Therefore, the plaintiff has been constrained to file the suit in question especially considering the reply sent by the defendants dated 24.08.2006.

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Written Statement of the 1^st defendant:

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The defendants had stoutly denied the claim of the plaintiff that he was the owner of the suit property. It is the case of the 1^st defendant that the suit property being a Grama Natham was their ancestral property and that his predecessor in title and himself has been in possession and enjoyment of the suit property and enjoying the same as a cattle shed originally. Thereafter, the 1^st defendant would submit that he had put up a thatched house in the suit property, in the year 1988 after he had removed the cattle shed. The 1^st defendant admitted that he had shifted to a new residence and he would contend that his son Sudhakar continued to be in possession of the suit property and tax was assessed in the name of his son. The plaintiff, according to the defendants had no title or right to the suit property and the suit has been motivated only on account of the fact that the defendants had refused to convey the property to the plaintiff. Therefore, he had sought for dismissal of the suit.

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The learned Principal District Munsif had framed the following issues :

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Whether the plaintiff is entitled to obtain possession of the suit property from the defendants through Court without any obstructions?

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Is it correct to state that the 1^st defendant has acquired title of the suit property through adverse possession ?

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Whether the defendants are liable to pay past mesne profits of Rs.1000/- to the plaintiff ?

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Whether the plaintiff is entitled to get future mesne profits from the defendants, under Order 20 Rule 12 C.P.C.,?

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The plaintiff examined himself as PW1 and his vendor Balambal was examined as PW2 and marked Exhibits A1 to A8. On the side of the defendants, the 1^st defendant examined himself as DW1 and one Subramanya Udayar and Devaraj were examined as DW2 and DW3 respectively. Exhibits B1 to B3 were marked in support of the defendants' case.

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The trial court dismissed the suit holding that the plaintiff has not been able to establish his possession of the suit property. The learned Judge held that the defendants had proved possession by examining DW2 and DW3 and the plaintiff has failed to establish his prima-facie case that he had permitted the defendants to reside in the suit property.

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The appellate Court on a detailed consideration of the evidence both oral and documentary, allowed the appeal and reversed the judgment and decree of the trial Court.

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Second Appeal:

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The Second Appeal was admitted on 03.09.2020 on the following substantial questions of law:

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Whether in law the lower appellate Court was right in failing to see that the respondent not being the owner of the suit property committed fraud on court vide 1994 1 SCC page 1?

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Whether in law the lower appellate Court was right in holding that the appellants were in permissive possession without any proof and in granting a decree for mesne profits?

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Submissions:

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Mrs.R.Meenal, learned counsel appearing on behalf of the appellants/Defendants would submit that the plaintiff has not proved his case that he had put the 1^st defendant in permissive occupation of the suit property. On the contrary, the defendants have been in possession of the suit property from time immemorial the same being their ancestral property. To prove their possession, Exhibits B1 to B3 which are the receipts from the year 2001 to 2006 has been marked. She would also draw the attention of the Court to the finding of the trial Court that the plaintiff had miserably failed to prove their case and the plaintiff, who had come forward with a case that the suit property was a vacant site, had produced house tax receipts which only went to prove that the plaintiff has not come to Court with clean hands. That apart, the document does not relate to the suit property and does not even contain a door number. On the contrary, the documents submitted on the side of the defendants would describe the property as Door No.1/14. The counsel would further submit that the plaintiff has not come forward with a definite case, since he had produced Ex.A8, only after the evidence of PW1 had been completed by filing an application. She would further contend that from the evidence of PW1, it is clear that the property purchased by the plaintiff from Balambal had been sold by him and therefore, he has no right to the said property. She would highlight the following evidence of PW1, the plaintiff.

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''nkw;go TiuahdJ fUg;gd;nrhiyahy; nghlg;gl;lJ vd;why;

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Therefore, she would submit that the plaintiff has come forward with a false case. She would further submit that the Appellate Court has ignored the documents filed on the side of the defendants to prove their possession and has erroneously concluded that the defendants have not proved their possession.

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Per contra, Mr.N.Suresh, learned counsel appearing on behalf of the plaintiff would submit that the plaintiff has proved his title to the suit property by marking Ex.A8 – Sale Deed, which is of the year 1936 (25.08.1936) in and by which, the property had been purchased by the husband of the plaintiff's vendor Balambal. He has also marked Ex.A1 dated 23.09.1978, which is the sale deed executed by Balambal in favour of the plaintiff. The suit property being a vacant site title would follow possession. He would draw the Court's attention to the pleadings in his plaint, wherein, the plaintiff has submitted that the property was being originally used for storing manure and stacking hay and thereafter, it is only a hut with a roof of sugarcane leaves. He would further submit that to prove title, his vendor was also examined as PW2, who has adduced evidence to the effect that the property belonging to her husband Rangasamy, by virtue of the purchase in the year 1936 vide Ex.A8. PW2, in her cross-examination, clearly stated that the 1^st defendant had entered possession of the suit property only after the sale in favour of the plaintiff. He would further argue that the defendant who has pleaded adverse possession has not let in a shred of evidence to prove possession for the statutory period. He would submit that the lower Appellate Court has rightly reversed the judgment and decree of the trial Court and the same should be sustained.

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Discussion:

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Heard the learned counsel on either side and perused the records.

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The plaintiff has come forward with the case that he is the owner of the property on the strength of Ex.A1 – Sale Deed. The plaintiff has marked the Sale Deed as well as the prior documents of title, namely, the Sale Deed of the year 1936. The suit property has been described as a vacant site. In the Sale

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Deed, the plaintiff's case is that he had been originally using the said property to store manure and stack hay and that had permitted the 1^st defendant to store cement bags in the premises for a short period of time. The plaintiff has also put up a hut, but, since the roof had to be frequently changed, the plaintiff had vacated the property and proceeded to live in his brotherin-laws property which was close by. The title to the property has been proved by the plaintiff by marking Exs.A1 and A8 and examining PW2. The defendants have come forward with a case that the property is the ancestral property and they have been in possession of the same for time immemorial. However, the defendants have also pleaded adverse possession, thereby acknowledging the right of the plaintiff to the suit property.

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Considering the fact that they have pleaded adverse possession, the documents filed on the side of the defendants are to be examined. The defendants had produced the documents only from the year 2001, which is just five years prior to the filing of the suit by the plaintiff. Apart from the three tax receipts, no other documents have been filed on the side of the defendants. The trial Court has held that the defendants have proved their possession by examining DW2 and DW3. DW2 is the relative of the 1^st defendant and therefore, an interested witness. DW2 would depose that he is not aware that the property originally belonged to Duraikannu and thereafter, to his son. As regards DW3, in his cross-examination, he clearly deposed that he does not know where the suit property is situate. The trial Court has therefore, considered only the tutored chiefexamination and has not taken note of the admissions in cross, this has led to the learned Judge coming to the erroneous conclusion that possession of the defendants has been proved by DWs 2 and 3. Therefore, the appellants/defendants have not proved their case that the property is an ancestral one in which they are in possession for the statutory period of time. The appellants have failed to prove title to the property. Therefore, I do not find any infirmity in the judgment and decree of the lower Appellate Court and therefore, the substantial question of laws answered against the appellants.

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In fine, the Second Appeal is dismissed and the judgment and decree dated 23.09.2010 in A.S.No.62 of 2010 on the file of the Principal District Court, Villupuram, is confirmed. No order as to costs. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Deputy Registrar(CLAA)

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//True Copy//

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Sub Assistant Registrar

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ssn

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The Principal District Court, Villupuram.

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The Principal District Munsif's Court, Villupuram.

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+1cc to M/s.R.Meenal, Advocate, S.R.No.32479

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S.A.No.548 of 2011 and M.P.No.1 of 2011

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PMK(CO) CB(17/11/2021)

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https://hcservices.ecourts.gov.in/hcservices/

Duraikannu Udayar,(Died) v. Kuppusami Udayar(Deceased)

Case brief

What is this about?

What did the court decide?

Duraikannu Udayar,(Died) v. Kuppusami Udayar(Deceased)

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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