Court dismissed second appeal where appellant failed to prove title to suit property via compromise decree or sale deed, confirming dismissal of recovery suit for possession.
Second Appeal dismissed, connected Miscellaneous Petition closed, no costs awarded.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.12.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.94 of 2007 &
M.P.No.1 of 2007
Selvam @ Rajagopal ...Appellant
Vs.
Sheik Mohammed ...Respondent
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.185 of 2005 dated 21.04.2006 on the file of the Court of Principal SubOrdinate Judge, Mayiladuthurai reversing the Judgement and Decree passed in O.S.No.65 of 2004 dated 30.06.2004 on the file of the Court of District Munsif, Sirkali.
: For Appellant Mrs.Srividya
For Respondent : Died
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JUDGMENT
The defendant is the appellant in the Second Appeal. The suit is one for recovery of possession after removing the super structure. The suit was dismissed and allowed in appeal. The facts in brief are herein below narrated and for the ease of understanding the parties are referred to in the same rank as before the Trial Court.
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Ummul Bazaria and Mumtaj have no right to the suit property. In the 3rd week of March 2022, the defendant had forcibly trespassed into the property and attempted to put up construction. The plaintiff had successfully prevented the said attempt. However, the defendant threatened that he would put up the said construction. The plaintiff had issued a legal notice on 27.03.2002. After receiving the notice, the defendant urgently tried to put up construction on the suit property from 04.04.2002. The attempts were prevented by the plaintiff who
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had filed a suit for bare injunction in O.S.No.86 of 2002. However, no interim orders were given in the same. Therefore, taking advantage of the said situation, the defendant had put up the construction. Therefore, the plaintiff has come forward with the present suit.
admitting that the suit property belonged to the Temple. It is his case that in a suit for partition filed in O.S.No.56 of 1961 the property, subject matter of the suit came to be alloted to the share of Mumtaj and Ummul Bazaria, the defendants 2 and 3 in the said suit. The said property were enjoyed by the two of them. The decree in O.S.No.56 of 1961 was passed on 09.11.1962.
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entered into an agreement of sale with the defendant on 27.05.1992 for a total sale consideration of Rs.22,000/-. On receiving the substantial portion of the consideration, the defendant was put in possession of the suit property and the super structure. Therefore, from and with effect from 27.05.1992, the defendant is in possession and enjoyment of the suit property.
the defendant who is the lessee in respect of the suit property. The defendant has repaired and re-constructed the suit property and the plaintiff thereafter has come forward with the present suit. The plaintiff is not entitled to the relief and the suit is bad for non joinder of necessary parties, namely, the Temple, Ummal Bajria, Mumtaj and Ravichandran. Further, the suit for recovery of possession without declaration is also not maintainable.
“1. thjp jhth brhj;jpy; gFjpjhuu; vd;gJ
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rupjhdh>
jhth brhj;jpd; mDgtj;jpy; itf;fg;gl;Ls;shu; vd;gJ rupjhdh>
3/ nru;f;fntz;oa egu;fis nru;f;ftpy;iy vd;w
njhc&j;jhy; jhth ghjpf;fg;gl;Ls;sjh>
4/ tpsk;g[ifg; gupfhuk; nfhuhky; RthjPdg; gupfhuk; kl;Lk; nfhupapUg;gjhy; jhth epiyf;fhJ vd;gJ rupah>
5/ thjpf;F gpuhjpy; nfhupa[s;sgo RthjPd gupfhuk; tH';fg;gl;y; ntz;oaJ mtrpak;jhdh>
P.W.2. The defendant was examined as D.W.1. On the side of the plaintiff 8 documents were filed and on the side of the defendant 7
documents were filed.
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the suit property and that he was not in possession of the same. Ultimately, the suit was dismissed.
“a. When the plaintiff admits the compromise decree
in O.S.No.56 of 1961, wherein the suit property was allotted to the shares of Mumtaj and Ummal Bajria defendant's predecessor-in-interest, whether the lower
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appellate court erred in law in decreeing the suit?
b. Whether the Lower Appellate Court erred in law in ignoring Ex.B.2?
was served on 16.02.2007 had not entered appearance. He later passed away in the month of July 2010. The defendant / appellant had filed a memo stating that in the light of the provisions of OXXII Rule 4 (4) of the Code of Civil Procedure there was no necessity to bring on record the legal representatives. By order dated 13.12.2022 this memo was ordered.
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not been filed before this Court.
“Mayiladuthurai Registration District, Sembanarkoil Sub-
Registry, Udayavar Kovilpathu Vattam R.S.No.60/1 Punja measuring
13 ½ cents.
BOUNDARIES:
North of other paguthi manai under the possession of the plaintiff,
South of Ramasamy Aasarit Paguthi manai
West of Thamaraikulam,
East of Veethi.”
family of Ummal Bajria and Mumtaj, the D schedule property in S.No.60/1 has fallen to the share of Mumtaj, namely, item Nos.15, 16 and 17. Likewise, C schedule property in S.No.60/1 devolves upon
Ummul Bajria, namely, item no.11 measuring 3 cents of land together
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with the houses.
has been given to Ravichandran. A perusal of the same would show that it is a receipt for a sum of Rs.2,000/- and the recitals would further state that the dilapidated building in Azad street belonging to the Mumtaj was being sold to the said Ravichandran. This document was not registered though the value of the sale was over a sum of Rs.2,000/-
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the defendant's predecessor in title is a mere receipt for a sum of Rs.2,000/-, said to be the sale consideration. However, no registered document has been filed to prove the same. That apart, in Ex.B.1 there is no description of property. Therefore, the defendant has not proved his right to the super structure constructed on the suit property. The Lower Appellate Court has rightly considered the document and held that the defendant has not proved his title to the suit property. Further, the description of property in Ex.B.2 compromise does not co-relate to the suit property. The Substantial Questions of Law are therefore answered against the defendant / appellant.
21.12.2022
Index : Yes/No Internet : Yes/No kan
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To
Mayiladuthurai.
Sirkali.
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P.T. ASHA, J,
kan
S.A.No.94 of 2007
21.12.2022
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3 issues framed by the court
Whether the trial court erred in dismissing the suit for recovery of possession given the appellant's title claim.
Whether the litigation is maintainable absent joinder of necessary parties like the Temple and sale deed registrants.
Whether the compromise decree and subsequent sale documents proved sufficient to establish title to the suit property.
1 provisions across 1 enactments
Selvam @ Rajagopal
Sheik Mohammed
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
