Madras High Court
Karuppa Gounder vs Chenniappa Gounder (Died) on 20 April, 2016
Author: P.Kalaiyarasan
Bench: P.Kalaiyarasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2016 CORAM THE HONOURABLE MR. JUSTICE P.KALAIYARASAN S.A. No.1028 of 2005 and C.M.P.No.1047 of 2012 1. Karuppa Gounder 2. Muthulakshmi 3. Senthilvel Selvakumar ... Appellants vs. 1. Chenniappa Gounder (Died) 2. C.Palanisamy 3. Chellammal 4. Baggiammal ... Respondents (R3 and R4 brought on record, as LRs of the deceased R1, vide order of the court, dated 18.04.2013 made in C.M.P.No.238 of 2013 in S.A.No.1028 / 2005). Second Appeal is preferred under Section 100 of the Code of Civil Procedure against the Judgment and Decree, dated 29.04.2005 made in A.S.No.17 of 2005 on the file of the Subordinate Court, Bhavani, reversing the Judgment and Decree, dated 31.01.2005 made in O.S.No.835 of 2004 on the file of the II Additional District Munsif Court, Bhavani. For Appellants : Mr.T.Murugamanickam For Respondents : Mr.R.Gandhi, Senior Counsel for Mr.R.G.Narendhiran J U D G M E N T
The Second Appeal arises out of the Judgment and Decree, dated 29.04.2005 made in A.S.No.17 of 2005 on the file of the Subordinate Court, Bhavani.
2. The defendants are the appellants in this Second Appeal. The Lower Appellate Court, decreed the plaintiff's suit for permanent injunction with respect to the suit property, excepting the house. For convenience, the parties are referred to in their original rank in the suit.
3. The plaintiffs are father and son. The second defendant is one of the daughters of the first plaintiff and her husband and son are defendants 1 and 3 respectively.
4. The suit property consists of agricultural land with well and house in the suit property. The first plaintiff acquired 2.85 1/2 cents of land ancestrally through his father. He purchased 2 acres and the second plaintiff purchased 2.63 acres of land and thus, plaintiffs 1 and 2 have been in possession of the entire 7.48 1/2 acres, the suit property.
5. The third defendants, being grand son of the first plaintiff was permitted to reside in the suit house by the first plaintiff about three years prior to the filing of the suit, as third defendant was not having cordial relationship with his parents, namely first and second defendant. Taking advantage of the occupation of the house, D3 with the help of other defendants, refused to vacate the house, when demanded and also attempted to interfere with the peaceful possession of the plaintiffs in the agricultural land also. Therefore, suit has been filed praying for permanent injunction.
6. The defendants contended in the written statement that the third defendant, being the grand son of the first plaintiff took on oral lease for Rs.6,000/- per year and have been cultivating, after reclamation of the land by spending huge amount. The plaintiffs have never been cultivating the land. The third defendant did not get the receipt for the payment of the rent, due to the close relationship of D3 and plaintiffs. D2, being one of the daughters of the first plaintiff is also a co-sharer in the suit property and therefore, permanent injunction cannot be sought for against her.
7. The trial Court framed four issues. On the side of the plaintiff, first plaintiff was examined as P.W.1 and 18 Exhibits were marked and on the side of the defendants, two witnesses were examined and 8 Exhibits were marked. After analysing the evidence, the trial Court dismissed the suit, aggrieved over the same, the plaintiffs preferred first appeal.
8. In the appeal preferred by the plaintiffs, the lower appellate Court, partly decreed the suit, granting permanent injunction with respect to the suit property, excepting the house. Aggrieved against the said Judgment and Decree of the lower appellate Court, the defendants have preferred this Second Appeal.
9. At the time of admission, the following Substantial Questions of Law were framed :
"1. Whether the burden can be placed on the defendant to prove his possession of the suit property in a suit for permanent injunction filed by the plaintiff ?
2. When the defendant's possession of a portion of a suit property (which cannot be segregated from the rest of the property) is admitted by the plaintiff, whether the plaintiff can sustain the suit for permanent injunction, as if the plaintiff is in possession."
10. Mr.T.Murugamanickam, learned counsel appearing for the appellants contended that the lower appellate court ought to have dismissed the appeal, on the ground that the respondents / plaintiffs have admitted the possession of the third appellant herein the house, which is a part of the suit property and cannot be segregated separately and according to the learned counsel, considering the relationship of the parties, there could not be any written lease agreement or any receipt for the payment of the lease amount and further, according to him, the trial Court has rightly rejected the claim of the respondents / plaintiffs and pleaded for allowing this Second Appeal. In support of his contention, the learned counsel for the appellants relied on the following decisions :
1. Ramesh Babu v. R.Bhaskar, 2003 (1) CTC 345
2. Chinnakannu and another v. Athal and other, 2000-3-LW 98
11. Mr.R.Gandhi, learned Senior counsel appearing for the respondents / plaintiffs contended the D3 has been in permissive occupation of the house in the suit property and with respect to the agricultural lands, the respondents / plaintiffs have filed documents to establish their possession and according to the learned Senior counsel, D3, who is claiming right over the oral lease, has to prove the same, but since he failed to prove, the lower appellate court has rightly rejected his claim and hence, pleaded for the dismissal of the second appeal. In support of his contention, the learned Senior counsel relied on the following decisions :
1. Hanmanta Daulappa Nimbal v. Babasheb Dajisaheb Londhe, (1995) 6 SCC 58
2. Arumugam v. Sri Dharmapuram Mutt, Dharmapuram, 1996 (I) CTC 90
3. Subramaniya Udyar v. K.E.Maboo, 1997 (II) CTC 660
12. In Ramesh Babu v. R.Bhaskar, reported in 2003 (1) CTC 345, this Court has held that burden of proof is on the plaintiff and the he has to prove his case and cannot take advantage of weakness in case of defence.
13. In Chinnakannu and another v. Athal and others, reported in 2000-3-LW 98, this Court has held as follows :
"39. The plaintiff can succeed only on the basis of the proof of his own allegation in the plaint as regards his title especially when the same is being questioned and he cannot succeed by picking holes in the title of the defendant.
40. In a suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession till the date of the suit."
14. In Arumugam v. Sri Dharmapuram Mutt, Dharmapuram, reported in 1996 (I) CTC 90, this Court has held that mere evidence as to cultivation of another land is alone not sufficient and it should be established that such cultivation should be under tenancy agreement. Persons, who enjoy land on "PAGUTHI" basis in lieu of his service is not cultivating tenant.
15. In Subramaniya Udyar, R v. K.E.Maboo, reported in 1997 (II) CTC 660, this Court has held that a person who pleads oral lease must prove it. In the instant case, D3, who claims an oral lease, has not established the same.
16. The respondents / plaintiffs seeks permanent injunction only with respect to the agricultural land in the suit property. They pleaded that D3 has been in permissive occupation in the house property. With respect to the agricultural land, the plaintiffs filed Ex.A.6 and Ex.A.7 pattas, Ex.A.8, A-Register extract, Ex.A.9, Adangal, Ex.A.10 and Ex.A.11, EB cards in the name of the plaintiffs to establish their possession. That apart, they also filed Ex.A.17 and Ex.A.18, Account statement from Sakthi Sugars for the year 1999-2000 for delivering sugarcane by the respondents / plaintiffs. Through the above documents, when the plaintiffs have established their possession, the defendants, who plead oral lease is expected to prove it. The burden of proof lies only on the defendants, who plead oral lease. Here, the defendants failed to establish the oral lease and the lower appellate court, rightly rejected the contentions of the defendants about oral lease. Apart from D3, the only oral evidence, who spoke about oral lease is the coolie, alleged to have been worked in the filed under D3.
17. Though defendants pleaded that they spent huge amount for reclamation of the land, no acceptable evidence has been let in, on that aspect. The vague oral evidence of the appellants / defendants is bound to be rejected and the respondents / plaintiffs have established their case, through the documents, as already discussed. Therefore, the contentions of the appellants / defendants that burden was placed on the defendants to prove his possession by the lower appellate court is not correct and hence, the first substantial question of law is answered in favour of the respondents / plaintiffs and against the appellants / defendants.
18. Another contention of the defendants that when the plaintiff admits the possession of a portion of a suit property by the defendant, whether the plaintiff can sustain the suit for permanent injunction, as if the plaintiff is in possession is also incorrect. In the plaint itself, the pleadings is very clear that D3 has been in permissive occupation of the house property and the remaining agricultural land has been in occupation of the plaintiffs. Thus, in the suit, the respondents / plaintiffs segregated the residential portion and therefore, the lower appellate court is right in granting permanent injunction with respect to the suit property, excepting the house. Hence, the second substantial question of law is also answered in favour of the respondents / plaintiffs and against the appellants / defendants.
19. During the pendency of the Second Appeal, the first respondent died and the second respondent continued the second appeal. Since the first respondent / first plaintiff died during the pendency of the second appeal, the second plaintiff filed C.M.P.No.1047 of 2012, to accept the additional documentary evidence, namely, Will, executed by his father, the first plaintiff in his favour, with respect to the properties, including the suit property. The respondents / appellants filed counter, contending that the additional evidence, now sought to be produced is not a genuine and it has to be tested through an enquiry, as contemplated under Order 22 Rule 5 of CPC.
20. Admittedly, partition suit has already been filed by the second defendant herein against the alleged sharer, including the second plaintiff herein. This Second Appeal relates to the question of granting permanent injunction and the question that to be answered is whether the plaintiffs had been in possession of the suit property on the date of filing of the suit. Though it was pleaded in the written statement that D2 is also a co-sharer in the suit property, it was not perused during the trial and D2 had not even stepped into the Box. It is also not the Defendant's case that D2 has been in possession. The specific case of the defendants is that D3 has been in possession on oral lease. Hence, this Court is of the considered view that the alleged documents is not required to decide the issues in the present appeal and accordingly, the C.M.P. is liable to be dismissed.
In the result, this Second Appeal is dismissed. Consequently, C.M.P.No.1047 of 2012 is also dismissed. Considering the relationship between the parties, the parties shall bear their own cost in this Second Appeal.
20.04.2016 Index : Yes / No tsvn To
1. The Subordinate Court Bhavani.
2. The II Additional District Munsif Court Bhavani.
P.KALAIYARASAN, J tsvn Pre-Delivery Judgment in S.A. No.1028 of 2005 20-04-2016