M.Jayakumar Vs Devaki (Died), Natarajan (Died) 1.N.Sudha

COMMON PRAYER: Second Appeals are filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 05.12.2025 passed in A.S.Nos.224 and 225 of 2024 by the VI Additional City Civil Court, Chennai confirming the judgment and decree of the XIV Assistant City Civil Court, Chennai dated 13.03.2024 passed in O.S.No.1462 of 2011.

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https://www.mhc.tn.gov.in/judis

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S.A.Nos.248 and 252 of 2026

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For Appellant : Mr.S.Baskaran (in both SAs) For Respondents : Mr.Kannan T (in both SAs)

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C O M M O N J U D G M E N T

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The unsuccessful plaintiff in O.S.No.1462 of 2011 is the appellant in S.A.No.248 of 2046. The suit is for declaration of title and for permanent injunction. The plaintiff had also sought for a declaration that Sale Deed dated 25.06.2008 executed by 1^st defendant in favour of the 2^nd defendant was null and void. The suit was dismissed by the Trial Court. The first appeal filed by the plaintiff was also dismissed. Challenging the concurrent finding against him, the appellant/plaintiff preferred second appeal in S.A.No.248 of 2026.

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In the suit for declaration of title and permanent injunction filed by the plaintiff, the deceased 2^nd defendant filed counter claim seeking recovery of possession from the plaintiff. The Trial Court decreed the counter claim. The first appeal filed by the plaintiff was also dismissed. Challenging the same, the other second appeal in S.A.No.252 of 2026 has been filed by the appellant/plaintiff.

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S.A.Nos.248 and 252 of 2026

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According to the appellant/plaintiff, the suit property was purchased by his grandfather-Murugesa Reddiar in the name of his wife-Devaki, the 1^st defendant in the suit by selling his property situated in Door No.11, Rettakula Street, Tondiarpet, Chennai on 25.06.1971. The property of Murugesa Reddiar was sold for a Sale Consideration of Rs.18,500/-. On the same date, he purchased suit property in the name of his wife-Devaki for sale consideration of Rs.4,000/-. It is also pleaded that Murugesa Reddiar and 1^st defendant borrowed a sum of Rs.15,000/- from one Mayandi on 09.03.1992 and Rs.20,000/- from the very same person on 09.03.1992 by executing a Mortgage Deed. Subsequently, they borrowed a sum of Rs. 25,000/- from him by executing a Pronote on 10.09.1994. Since Mayandi demanded repayment of the amount, at his request the plaintiff paid the amount to the said Mayandi on behalf of his grandfather and grandmother. While arranging money for repayment, a Power of Attorney was executed by 1^st defendant in favour of the plaintiff. It is also stated that the plaintiff paid funeral expenses during the death of Murugesa Reddiar. When the plaintiff requested his grandmother/1^st defendant to execute the Sale Deed in his favour in respect of the suit property in lieu of repayment of the above said sum, she refused.

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S.A.Nos.248 and 252 of 2026

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At that point of time, M.Natarajan, one of the son of Murugesa

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Reddiar obtained signature of the plaintiff in some papers. Later, it came to the knowledge of the plaintiff that the 1^st defendant sold the suit property in favour of 2^nd defendant on 25.06.2008. However, the 2^nd defendant has not taken any legal action to enforce his right under the Sale Deed. It was also stated that the 1^st defendant had got only 1/5^th share in the suit property owned by Murugesa Reddiar and hence, Sale Deed executed by her was not valid. It is further pleaded that the 1^st defendant has no legal right, title to execute the sale deed. The recital in the Sale Deed, as if Rs.3,00,000/- was paid to the plaintiff to discharge the amount due to him was also not paid. It is further stated that the 2^nd defendant attempted to interfere with the plaintiff’s possession and therefore, the above said suit was filed seeking declaration of plaintiff’s title over superstructure in the suit property along with leasehold right in the land. The plaintiff also sought to set aside the Sale Deed dated 25.06.2008 executed by the 1^st defendant in favour of the 2^nd defendant. He also sought for permanent injunction restraining the 2^nd defendant from interfering with his alleged possession over the suit property.

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S.A.Nos.248 and 252 of 2026

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The 2^nd defendant filed written statement denying various averments found in the plaint. The allegation in the plaint that Murugesa Reddiar was the owner of the property was specifically denied by him. It was the case of the 2^nd defendant that the suit property was owned by 1^st defendant. It was the case of the 2^nd defendant that superstructure in the suit property along with leasehold right was sold by 1^st defendant to him for a valid consideration and therefore, he acquired right over the same. It was also stated that the 2^nd defendant purchased the site of the property from its lawful owner-Jeevarathinam Ammal under Sale Deed dated 02.02.2009. Since he purchased the superstructure as well as site of the suit property from its lawful owner, the 2^nd defendant claimed title over the same. It is also stated that at the time of sale by 1^st defendant in favour of the 2^nd defendant, the plaintiff received a sum of Rs.3,00,000/- from the 2^nd defendant and acknowledged the receipt of the same. Based on his title, the 2^nd defendant sought for recovery of possession by filing counter claim.

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Pending suit, the 2^nd defendant died and his legal representatives were brought on record as defendants 3 to 6. They also filed separate written statement elaborating the stand of the 2^nd defendant.

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S.A.Nos.248 and 252 of 2026

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2 nd

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The plaintiff filed reply statement to the counter claim filed by the

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2^nd defendant denying the right of the 2^nd defendant to maintain a counter claim for recovery of possession.

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Before the Trial Court the plaintiff was examined as PW.1 and 29 documents were marked on his side as Exs.A1 to A29. The son of 2^nd defendant namely 6^th defendant was examined as DW.1 and 13 documents were marked on their side as Exs.B1 to B13.

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The Trial Court on appreciation of evidence available on record, came to the conclusion that the plaintiff failed to establish his right over the suit property and consequently, dismissed the suit. After upholding title of the defendants, the Trial Court allowed the counter claim and granted decree for delivery of possession. Aggrieved by the same, the unsuccessful plaintiff filed two first appeals in A.S.Nos.224 and 225 of 2024. The First Appellate Court affirmed the findings of the Trial Court and dismissed the appeals. Aggrieved by the same, the above second appeals are filed.

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The learned counsel appearing for the appellant would vehemently contend that the plaintiff paid the amount to 1^st defendant and discharged the loan incurred by her from one Mayandi and the status of the 6/14

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plaintiff is a Mortgagee and without paying the amount to the plaintiff, the 1^st defendant is not entitled to sell the property in favour of the 2^nd defendant. The learned counsel also submitted that though the 2^nd defendant said to have purchased the property on 25.06.2008, he failed to exercise his right under the Sale Deed immediately and he has chosen to file counter claim only in the year 2013. The learned counsel also submitted that the suit was initially decreed exparte against defendants 1 and 2 and lateron, the 2^nd defendant alone filed a petition to set aside exparte decree along with condone delay petition on 17.06.2013. Only after setting aside the exparte decree, the written statement with counter claim has been filed. According to him, the counter claim preferred by the 2^nd defendant is hopelessly barred by limitation and both the Courts below failed to take into consideration the question of limitation raised by the plaintiff.

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It is seen from the typed-set of papers that the suit property (i.e., Superstructure and the Leasehold Right) have been purchased in the name of the 1^st defendant-Devaki under Ex.A3, dated 25.06.1971. It is not in dispute that Devaki Ammal had only Leasehold Right over the site and site belonged to Jeevarathinam Ammal.

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S.A.Nos.248 and 252 of 2026

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A perusal of recital of Ex.A3 would indicate that Devaki Ammal paid a sale consideration for purchase of the property under Ex.A3. When property stands in the name of Hindu Female by virtue of Section 14 (1) of the Hindu Succession Act, 1956 the same is deemed to be her absolute property unless the contrary is proved. Based on the said presumption, the Courts below came to the conclusion that the superstructure belonged to the Devaki Ammal.

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Ex.A14 is the copy of the Sale Deed executed by Devaki Ammal in favour of his son, 2^nd defendant dated 25.06.2008. Therefore, by virtue of Ex.A3 and Ex.A14, the title of the 2^nd defendant over the superstructure in the suit property has been proved. Ex.B4 is the certified copy of the Sale Deed executed by owner of the site of the suit property namely Jeevarathinam Ammal in favour of 2^nd defendant. By virtue of the said document, the 2^nd defendant acquired absolute right over the site of the suit property. Therefore, a conjoined reading of Ex.A3, Ex.A14 and Ex.B4 would establish that the 2^nd defendant has got right and title over the suit superstructure as well as suit site.

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S.A.Nos.248 and 252 of 2026

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Ex.B2 is a declaration of the plaintiff in a twenty rupees stamp paper, wherein he admitted that he received a sum of Rs.3,00,000/- from the 2^nd defendant and agreed to handover possession of the portion of the suit property in favour of the 2^nd defendant. Though the said document has been denied by the plaintiff in the pleadings itself, the plaintiff admitted that the 2^nd defendant obtained his signature in certain documents.

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Further, during the course of trial, the plaintiff has not taken any steps to compare the signature found in Ex.B2 along with his admitted signature. Based on Ex.B2 declaration, document filed by the plaintiff, the Courts below came to the conclusion that the plaintiff received a sum of Rs.3,00,000/- from the 2^nd defendant and agreed to vacate the suit property.

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In any event, even assuming that the 2^nd defendant failed to prove the payment of amount due to the plaintiff from the 1^st defendant that it will not enable the plaintiff to get declaration of his title. The superstructure in the suit property was purchased in the name of the 1^st defendant and the same was sold to 2^nd defendant by the 1^st defendant. The plaintiff is not claiming any right over the suit property under registered document. In such circumstances, a prayer for declaration of his title cannot be considered.

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The plaintiff claims that he paid certain amount to third parties

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and also funeral expenses, having the suit property as a security for the same. In such circumstances, as a person, who paid money to the owner of the property, he is not entitled to seek to set aside the Sale Deed executed by 1^st defendant in favour of the 2^nd defendant. It is pertinent to mention that plaintiff claims himself as a Mortgagee of suit property. However, he is not able to establish his status as Mortgagee by producing any registered Mortgage Deed. Therefore, the prayer for declaration of title and prayer to declare the Sale Deed executed by the 1^st defendant in favour of the 2^nd defendant are clearly misconceived and plaintiff is not entitled to sustain the same. The Courts below came to the correct conclusion based on the appreciation of pleadings of the parties and also evidence available on record.

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The 2^nd defendant had also sought for recovery of possession of the suit property from the plaintiff. As mentioned earlier, the 2^nd defendant purchased the property on 25.06.2008. The present suit has been filed by the plaintiff on 29.11.2010. Thereafter, the counter claim has been filed by the 2^nd defendant seeking recovery of possession on 17.06.2013. Therefore, the

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counter claim seeking recovery of possession has been filed within five years from the date of purchase by the 2^nd defendant. In the absence of any plea or evidence to establish adverse title, the plaintiff is not entitled to resist the suit for recovery of possession filed by the original owner namely 2^nd defendant in the year 2013.

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The learned counsel for the appellant vehemently contended that the 2^nd defendant failed to seek recovery of possession immediately after purchase of the property by him in the year 2008 and he filed counter claim belatedly only in the year 2013. Merely because, there is a delay in seeking recovery of possession, the original owner’s right to recover possession will not be destroyed. Right to possession is one of the essential incidence of ownership. Therefore, the 2^nd defendant is entitled to maintain a prayer for recovery of possession. When the plaintiff failed to establish adverse title over the suit property, he has no defence to the prayer for recovery of possession sought for by the 2^nd defendant. Both the Courts below had rightly appreciated the said legal position and granted decree for recovery of possession in the counter claim preferred by the 2^nd defendant. I do not find any perversity in the decree for recovery of possession granted by the Courts below and accordingly, both the second appeals are dismissed as the

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appellant is not able to make out any substantial question of law for consideration.

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