Madras High Court
S.Ramasubbu vs N.Rajan on 31 October, 2017
Author: S.Baskaran
Bench: S.Baskaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2017
CORAM
THE HONOURABLE MR.JUSTICE S.BASKARAN
S.A(MD) No.69 of 2016
S.Ramasubbu .. Appellant/ Appellant /Defendant
-Vs-
1.N.Rajan
2.N.Suthanthirarajan .. Respondents/ Respondents /Plaintiffs
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
code, against the judgment and decree of the Sub Court, Sivakasi, made in
A.S.No.25 of 2014 dated 18.04.2015, confirming the judgment and decree made
in O.S.No.164 of 2012, on the file of the oDistrict Munsif Court, Sivakasi
dated 18.11.2013.
!For Appellants : Mr.N.Mohideen Basha
^For Respondent : Mr.S.Kadarkarai
:JUDGMENT
Challenging the judgment and decree of the Sub Court, Sivakasi, made in A.S.No.25 of 2014 dated 18.04.2015, confirming the judgment and decree made in O.S.No.164 of 2012, on the file of the District Munsif Court, Sivakasi dated 18.11.2013, this Second Appeal has been preferred. The defendant who lost before the Courts below is the appellant herein.
2. For the sake of convenience both the parties will be referred to they were before the trial court.
3.The plaintiffs/respondents herein state that they are the absolute owners of the suit property as per the sale deed Exhibits A1 to A4, they are in possession and enjoyment of the property from the date of purchase. It is further stated by the respondents / plaintiffs that after they purchased the property, they have put up wire fence around the entire suit property. Admittedly, the suit property includes four numbers as mentioned in the plaint. It is alleged by the respondents / plaintiffs that the defendant damaged the barbed wire fence and hence a police complaint was lodged against him during August 2010. It is stated by the plaintiffs that during enquiry in the said complaint, the defendant/appellant herein undertook that he will not interfere with the possession of the plaintiffs. Thereafter, the defendant issued a legal notice dated 27.07.2012 marked as Ex.A5 alleging that he has entered into a sale agreement with the plaintiffs on 01.06.2012 and paid an advance amount of Rs.9 lakhs, out of the total sale consideration of Rs.10 lakhs. Rebuting the same, the plaintiffs / respondents herein issued a reply notice dated 01.08.2012, which is marked as Ex.A6 and the same has been received by the defendant / appellant herein as evidenced by Ex.A7, postal acknowledgement. According to the plaintiffs, the said sale agreement was never executed by them and it was a forged one. The plaintiffs further state that subsequently on 18.08.2012, the defendant tried to interfere with the plaintiffs' possession and sought for execution of sale deed in his favour. Hence the plaintiffs have come forward with the suit.
4.On the other hand, opposing the suit, the defendant/ appellant contends that he never tried to interfere with the possession and enjoyment of the plaintiffs at any point of time. According to him, he entered into the sale agreement with the plaintiffs on 01.06.2012 and paid an advance amount of Rs.9 lakhs. The defendant also admitted the exchange of notices and the paper publications about the suit property, which are marked as Ex.A8 and Ex.A9 are true. According to the defendant, he has filed O.S.No.86/2012 on the file of the Sub Court, Sivakasi, seeking the relief of Specific Performance and the same was pending. The further contention of the defendant is that he is cultivating the suit property and he is in enjoyment of the same continuously. Hence, he seeks the dismissal of the suit.
5.The trial court on perusal of the pleadings has framed the following issues.
1.Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?
2.To what other relief, the plaintiffs are entitled to?
6.Before the trial court, the first plaintiff examined himself as PW1 and produced the documents Exhibits A1 to A9. On the side of the defendant ,he himself has been examined as DW1, but he did not produce any other documents or any independent witness.
7.The trial court, on consideration of the pleadings as well as the oral and documentary evidence of both sides, held that the plaintiffs have established the title over the property as per Exhibits A1 to A4 sale deeds and after purchasing the same, they are in possession and enjoyment of the property. The trial court also found that the defendant has not produced the alleged sale agreement nor the copy of the plaint in O.S.No.86/2012 filed by him for the relief of Specific Performance against the plaintiffs herein to prove his contention of being in possession and enjoyment of property. The trial court also pointed out that the defendant admitted in his evidence about having knowledge of the difference between the sale agreement and the sale deed. Admittedly, the defendant has not produced any document to substantiate his claim of cultivating the suit property before the Courts below. The trial court further concluded that the defendant has not stated specifically in his written statement as to when he came into possession of property. In such circumstances, the trial court, on the basis of the evidence of PW1 and the sale deeds exhibited as A1 to A4, concluded that possession follows the title of the plaintiffs and decreed the suit as prayed for.
8.Aggrieved over the said judgment and decree passed by the trial court in O.S.No.164 of 2012, the defendant / appellant herein had preferred A.S.No.25 of 2014 on the file of the Sub Court, Sivakasi. The first Appellate Court on going through the grounds of appeal has framed the following points for consideration.
1.thjpfs; tof;Fiuapy; Nfl;Ls;s ghpfhuq;fs; thjpfSf;F fpilf;fj;jf;fjh?
2.,k;Nky;KiwaPL mDkjpf;fj;jf;fjh?
9.The first Appellate Court after considering the material afresh, concluded that as O.S.No.86/2012 has been filed by the defendant seeking the relief of Specific Performance against the plaintiffs herein in respect of the suit property and the same is pending and as no other material is placed before the Court to prove the possession of the property by the defendant, it cannot be stated that the defendant is in possession and enjoyment of the property. On the basis of the same, the first Appellate Court concluded that the plaintiffs having title of the property, are also in possession and enjoyment of the property and dismissed the appeal filed by the defendant / appellant herein, as per judgment and decree dated 18.04.2015.
10.Challenging the legality of the said judgment and decree, the defendant has preferred the present Second Appeal before this court. In the memorandum of the grounds of the Second Appeal, the following substantial questions of law are raised by the appellant / defendant.
1.Whether in law the judgment and decree of Courts below is sustainable in view of the pendency of suit in O.S.No.86 of 2012 pending on the file of Sub Court, Sivakasi, between the same parties and in respect of the same property?
2.Whether in law both the Courts below are proper in decree in the suit in favour of the Respondents when the Respondents has not denied the registered agreement of sale between the parties?
3.Whether in law both the Courts below are proper in granting injunction decree against the appellant when there is no cause of action is proved in accordance with law?
11.However, both the Courts below concurrently held that the plaintiffs are the true owner of the property as per Exs.A1 to Ex.A4/ sale deeds and they are in possession of the same. The learned counsel for the defendant / appellant contended that the Courts below have not properly appreciated the materials placed before them and they simply concluded that possession follows title and decreed the suit in favour of the plaintiffs as prayed for. It is the contention of the defendant that a complaint was lodged by the plaintiffs against the defendant alleging that he tresspassed into the property and interfered with their possession. However no such tresspass was established. On the other hand it is only the defendant, who is in possession of the property by cultivating the same. Unfortunately, on the side of the defendant, no material either documentary or independent oral evidence is placed before the trial court or the first Appellate Court to substantiate his contention that he is in possession and enjoyment of the property by cultivating it continuously. It is admitted by the defendant, while deposing as DW1 that the title of property vests with the plaintiffs and he has not entered into any sale deed with the plaintiffs. Further, he has conceded that he has only filed O.S.No.86/2012, seeking Specific Performance of the alleged sale agreement entered into between himself and plaintiffs herein. Neither the sale agreement nor the copy of the same is produced before this court. It is therefore clear that apart from the interested oral evidence of the defendant, there is nothing on record to substantiate his claim of possession of the property by cultivating it at any point of time. In such circumstances, the Courts below have rightly concluded, in view of the admission of the defendant himself that as the title of the property vests with the plaintiffs, possession is also with the plaintiffs.
12.The substantial question of law raised by the appellant/defendant have already been considered and answered by both the Courts below. Hence, this court is of the considered view that the substantial questions of law arise for consideration in this Second Appeal and the concurrent findings recorded by the Courts below are based upon proper appreciation of oral and documentary evidence placed before them and hence the impugned judgments of the Courts below warrant no interference.
13.In the result, this Second Appeal is dismissed at the admission stage itself by confirming the judgments of the Courts below. No costs.
To
1.The Subordinate Judge, Sivakasi.
2.The District Munsif cum Judicial Magistrate, Sivakasi.
3.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.