Madras High Court
Anbarasu vs Amuth on 26 November, 2019
Author: P.T.Asha
Bench: P.T.Asha
S.A.(MD)No.480 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 26.11.2019
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
S.A.(MD)No.480 of 2019
and
C.M.P.(MD)No.9659 of 2019
Anbarasu .. Appellant/Appellant/Defendant
Vs.
Amuth .. Respondent/Respondent/Plaintiff
Prayer : This Second Appeal filed under Section 100 of Civil Procedure Code, to set
aside the judgment and decree of dated 18.01.2019 passed in A.S.No.47 of 2017 on the
file of the Additional District Judge, Tenkasi confirming the judgment and decree dated
18.10.2016 passed in O.S.No.26 of 2007 on the file of the Principal Sub Judge, Tenkasi.
For Appellant : Mr.G.Prabhu Rajadurai
JUDGMENT
The above second appeal is filed by the unsuccessful defendant, challenging the concurrent judgment and decree in A.S.No.47 of 2017 on the file of the Additional District Judge, Tenkasi confirming the judgment and decree in O.S.No.26 of 2007 on the file of the learned Principal Sub Judge, Tenkasi, which is the suit filed by the respondent for declaration and for recovery of possession in respect of suit 1 item of the property. The parties are referred in the same litigative status as in the trial Court. http://www.judis.nic.in 1/6 S.A.(MD)No.480 of 2019
2.The case of the plaintiff is that the suit property was gifted to her by her father under a gift deed dated 26.11.1991. The plaintiff would contend that she had accepted the said gift deed and was in possession of the same and that she has been in absolute possession and ownership of the suit 1 schedule property. The defendant was in possession of 2 item of the property, which was a shop. In fact in an earlier round of litigation, the plaintiff had filed a suit for ejectment against the defendant in O.S.No.65 of 1996 on the file of the learned Principal District Munsif, Tenkasi on the ground that the defendant, who had taken lease the second item of the property shop, had failed to pay the rents. Therefore, in view of the arrears, he had to be evicted from the suit property. The said suit was allowed in favour of the plaintiff. As regards, the suit schedule 1 item of property, the defendant was denying the title of the plaintiff to the suit property and he has illegally entered into the possession of the same. Therefore, the suit.
3.The defendant had filed his written statement interalia denying the gift deed and stating that the plaintiff has no exclusive right to the suit schedule property. He would further contend that the he has been in possession and occupation of the property, even during the life time of his father as a absolute owner and that the plaintiff was never been in possession of the property. He would further submit that the plaintiff by obtaining an interim order is attempting to dispossess him from the suit property. The learned Principal Sub Judge, by judgment and decree dated 18.10.2016, was pleased to decree the suit in O.S.No.26 of 2007. Challenging the said judgment and decree, the defendant had filed an appeal in A.S.No.45 of 2017 on the file of the http://www.judis.nic.in 2/6 S.A.(MD)No.480 of 2019 Additional District Court, Tenkasi. The learned District Judge also confirmed the judgment and decree of the trial Court. Challenging this concurrent judgment and decree, the appellant is before this Court.
4.The learned counsel for the appellant would contend that the suit is barred by provision of Order II Rule 2 of CPC. In view of the fact that the earlier suit, O.S.No.65 of 1996 was filed before the learned Principal District Munsif, Tenkasi. The cause of action for the above suit has arisen, since the defendant denied the execution of the gift deed and also the fact that the plaintiff was the owner of the suit schedule properties. He would further contend that the gift deed has not been acted, since the possession has not been handed over to the plaintiff as recited in the gift deed. He would further submit that these applications were not considered by the Courts below. The judgment and decree are to be re-considered.
5.Heard the counsel and perused the paper.
6.The earlier suit in O.S.No.65 of 1996 was a suit for ejectment on the ground that the shop had been given on rent, but the defendant did not pay monthly rent. Since the defendant had defaulted in the payment of rents, the suit for ejectment had come to be filed. The defence in that suit was that there was no landlord tenant relationship between the plaintiff and the defendant and the defendant would deny the genuineness of the gift deed executed by the father in favour of the plaintiff. The http://www.judis.nic.in 3/6 S.A.(MD)No.480 of 2019 earlier suit in O.S.No.65 of 1996 has been decreed holding that the validity of the gift deed. The cause of action with reference to the earlier suit and the cause of action with reference to the present suit are totally different. The present suit has been filed for declaration and for recovery of possession, since the defendant has illegally entered into possession of the property and had been asserting a right over the same. The property, which is the subject matter of the present suit has also been gifted by father. The argument that the present suit is barred under Order II Rule 7 of CPC would not apply, since the cause of action and the subject matter in both the suits are totally different. The Courts below have upheld the gift deed executed by the father in favour of the defendant after considering the evidence on record and this Court under Section 100 of the Code of Civil Procedure does not wish to overturn the well considered Judgment and Decrees of the Courts below.
7.In the light of the earlier judgment and decree in O.S.No.65 of 1996 on the file of the learned Principal District Munsif, Tenkasi, which has been taken right up to Supreme Court and confirmed, the defendant has no legs to stand. No substantial question of law has been made out by the respondent. I do not find any infirmity in the judgment and decree passed by the Courts below. This second appeal is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.
26.11.2019
Index : Yes/No
Internet : Yes/No
Mrn
http://www.judis.nic.in
4/6
S.A.(MD)No.480 of 2019
To
1.The Additional District Judge, Tenkasi.
2.The Principal Sub Judge, Tenkasi.
3.The V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
5/6
S.A.(MD)No.480 of 2019
P.T.ASHA, J.
mrn
S.A.(MD)No.480 of 2019
26.11.2019
http://www.judis.nic.in
6/6