Mangaiarkarasi v. S.Mani & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.06.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.562 of 20061) Mangaiarkarasi2) Mathivanan...Appellants/Defendant 1 and 2Vs.1) S.Mani2) S.Jayabal3) S.Sugumaran...Respondents/Plaintiff & Defendants 3 & 4(RR 2 & 3 given up as un-necessary parties)This First Appeal has been filed under Section 96 of the Codeof Civil Procedure, 1908 as against the Judgment and Decree dated24.02.2006 of the learned Additional District Judge (Fast TrackCourt No.1), Salem made in O.S.No.201 of 2004 and set aside thesameFor Appellant: M/s.T.MurugamanickamFor Respondent: Ms.Hema Sampath SC for R.Subramanian (for R1)JUDGMENTThis appeal is directed against the judgment and decree of thelearned Additional District Judge (Fast Track Court No.1), Salemdated 24.02.2006 made in O.S.No.201 of 2004.2. The first and second defendants in the suit are theappellants in this appeal. The plaintiff in the suit is the firstrespondent in this appeal. Defendants 3 and 4 in the suit are therespondents 2 and 3 herein. The original suit was filed by thefirst respondent herein for a declaration of his absolute title inrespect of the suit property and for recovery of possession of thesame from the appellants/defendants 1 and 2. 3. According to the plaint averments, one Periyathayee (motherof plaintiff and defendants 1, 3 and 4) was the absolute owner ofthe suit property, having purchased the same from one Chandrikawife of Chandrakanth under a registered sale deed dated 15.07.1976 https://hcservices.ecourts.gov.in/hcservices/ and the first respondent herein/plaintiff became the owner of thesaid property by virtue of a gift settlement deed executed by theabove said Periyathayee on 06.09.2001. 4. It is the further contention of the firstrespondent/plaintiff that the first appellant and her husband the(second appellant) were in permissive occupation of the suitproperty and that they had to vacate and hand over possession asand when the license would be revoked. It was contended furtherthat after he became the owner of the suit property by virtue ofthe above said settlement gift deed dated 06.09.2001, the firstrespondent/plaintiff revoked the license granted by his mother anddemanded the appellants/defendants 1 and 2 to vacate the premisesand hand over possession and that since the appellants/defendantsrefused to do so, he was constrained to file a suit for the abovesaid reliefs. 5. The suit was resisted by the appellants/defendants 1 and 2by filing written statement denying the plaint allegations to theeffect that they were licensees and contending that they weretenants in respect of the suit property under Periyathayee paying amonthly rent of Rs.100/- ever since the inception of the tenancy in1982. The respondents 2 and 3 / defendants 3 and 4 filed a writtenstatement contending that the suit property was not an absoluteproperty of their mother Periyathayee and on the other hand, thesuit property was purchased in her name using the common funds ofthe family as she happened to be the eldest member of the family.They had also contended before the court below that the settlementdeed dated 06.09.2001 executed by Periyathayee in favour of thefirst respondent/plaintiff would not bind them and the same was notenforceable against them.6. On similar pleadings, the respondents 2 and 3 herein, asplaintiffs, filed another suit O.S.No.200/2004 claiming partitionof the present suit property and another property. The firstrespondent herein contested the said suit only in respect of thesuit property concerned in this appeal and conceded the claim forpartition made in respect of the other property. Both suits weretried together and a common judgment was pronounced decreeingO.S.No.201 of 2004 in its entirety and granting a preliminarydecree for partition in respect of the item 2 of the suitproperties described in the schedule attached to the plaint inO.S.No.200 of 2004 and dismissing the said suit for partition inrespect of the item no.1 therein, which is the suit propertyconcerned in this appeal. The first appellant herein was the thirddefendant in the above said connected suit O.S.No.200 of 2004. Theappellants herein have chosen to file an appeal against the decreepassed in O.S.No.201 of 2004 alone. No appeal has been preferredagainst the decree passed in the connected suit in O.S.No.200 of2004.7. In this appeal, a preliminary point was raised on behalf ofthe first respondent regarding the maintainability of the appeal,in view of the failure on the part of the appellants to file any https://hcservices.ecourts.gov.in/hcservices/ appeal against the judgment and decree passed in O.S.No.200 of2004, stating that the finding recorded therein regarding the pleaof the first respondent herein claiming title to the suit propertyconcerned in this appeal would operate as a constructiveresjudicata. However, it is conceded on behalf of the firstrespondent herein that the question regarding the alleged tenancyright could be canvassed in this appeal. 8. In the light of the above said submissions, the followingpoints arise for consideration in this appeal.1) Whether the finding of the court below regarding thetitle of the first respondent herein in the connected suitO.S.No.200 of 2004 has become final and operates asconstructive resjudicata in this appeal?2) Whether the plea of the appellants/ defendants 1 and 2that they are the tenantes in respect of the suit propertycan be sustained?3) Whether the first respondent/plaintiff is not entitledto the relief of declaration and recovery of possession asprayed for?9. This court heard the submissions of Mr.T.Murugamanickam,learned counsel appearing on behalf of the appellants and ofMrs.Hema Sampath, learned senior counsel representingMr.R.Subramanian on behalf of the first respondent. The materialsavailable on record were also perused.10. The land measuring 262 sq.ft. comprised in T.S.No.12/6A(old T.S.No.9/181) in ward B, Sivasamipuram Extension, HasthampattyVillage, Salem along with a tiled cattle shed bearing door No.8RIis the suit property in respect of which the first respondentherein filed the suit O.S.No.201 of 2004 for the relief ofdeclaration and injunction. Whereas the respondents 2 and 3 hereinhad filed a suit in O.S.No.200 of 2004 for partition showing thesaid property as the first item and another property as the seconditem. There is no dispute regarding the property shown as seconditem in O.S.No.200 of 2004. Regarding the property which is thesubject matter of the present appeal, shown as first item of thesuit properties in the connected O.S.No.200 of 2004, there was akeen contest between the parties. The following were the issuesframed by the trial court in the said connected suit O.S.No.200 of20041) Whether the settlement deed dated 06.09.2001 executed bythe first defendant in favour of the second defendant istrue and valid?2) Whether the plaintiffs are entitled to 1/3rd of the suitproperties?3) Whether plaintiffs are entitled to a preliminary decree https://hcservices.ecourts.gov.in/hcservices/ for partition as claimed in the plaint?4) To what reliefs the plaintiffs are entitled ?11. The following were the issues framed by the trial court inO.S.No.201 of 2004" 1) Whether the plaintiff is entitled to the suitproperty? Whether he is entitled to declaratory relief assought for?2) Whether plaintiff is entitled to the relief ofpermanent injunction?3) To what reliefs the plaintiff are entitled to?4) Whether the plaintiff and defendants are the jointowners of the suit property? 12. Evidence was recorded common for both the suits inO.S.No.200 of 2004. The respondents 2 and 3 herein were examinedas P.W.1 and P.W.2. Periyathayee and first respondent herein wereexamined as D.W.1 and D.W.2 whereas the appellants herein and onePonni were examined as D.W.2, D.W.3 and D.W.4 respectively. Ex.A1to Ex.A3 and Ex.B1 to Ex.B39 were marked. 13. The learned trial judge on an appreciation of evidencegave a categorical finding that the property concerned in thisappeal which had been shown as the first item of the suit propertyin the connected suit O.S.No.200/2004 was the absolute property ofPeriyathayee and the first respondent herein became entitled to thesame by virtue of the gift settlement deed executed byPeriyathayee. Based on the said finding, the trial court negativedthe claim for partition made by the respondents 2 and 3herein/plaintiffs in O.S.No.200 of 2004 in respect of the saidproperty. The registered sale deed under which the said propertywas purchased in the name of Periyathayee has been produced andmarked as Ex.B1. Ex.B2 to Ex.B6 are other documents to show thatthe revenue records, electricity connection etc. stood in the nameof Periyathayee. The registered settlement deed executed byPeriyathayee in favour of the first respondent herein dated06.09.2001 has been marked as Ex.B7. Besides the said documents,several other documents have been marked as Ex.B8 to Ex.B39 onbehalf of the first respondent herein to show that the property wasenjoyed by Periyathayee as her own till she gave it as a gift underEx.B7 and thereafter the first respondent herein was dealing withthe said property as his own. 14. Marshaling the evidence, both oral and documentary, thelearned Trial Judge gave a finding that the property absolutelybelonged to the first respondent herein. Based on such a finding,the plea made by the respondents 2 and 3 herein/plaintiffs in theconnected suit in O.S.No.200 of 2004 for partition was negatived. https://hcservices.ecourts.gov.in/hcservices/ The said finding was not merely incidental to the main issueinvolved in the said connected suit. The said finding happened tobe the foundation on which the claim for partition was negatived.Admittedly, no appeal has been preferred against the decree passedin the said connected suit O.S.No.200 of 2004. As such, as rightlypointed out by the learned senior counsel for the first respondent,the said finding regarding the title of the first respondentherein, in respect of the property concerned in this appeal,recorded in the connected suit shall definitely operate asconstructive resjudicata for the present appeal. The first pointis answered accordingly.15. The next point to be discussed is whether the appellantshave substantiated their contention that they were the tenants inrespect of the suit property and hence the prayer for recovery ofpossession based on the alleged termination of license has beensubstantiated. As already pointed out the finding that the firstrespondent herein is the absolute owner of the suit property, hasbecome final. Based on his title and based on the allegedrevocation of license, the first respondent has sought for a decreefor recovery of possession also. According to the firstrespondent, the appellants being daughter and son-in-law ofPeriyathayee, the erstwhile owner of the property, they wereallowed to reside therein as permissive occupants and after thefirst respondent became the owner of the property by virtue ofEx.B7, he gave notice revoking the license and demanding deliveryof possession. The said demand made by the first respondent hasnot been denied. On the other hand, the appellants would contendthat the claim of the first respondent that the appellants werelicensees could not be sustained, as they were in fact tenantsunder Periyathayee and were paying a monthly rent of Rs.100/-. Asagainst the overwhelming evidence adduced on the side of the firstrespondent herein to prove his case that the appellants herein wereonly permissive occupants and the license was sought to be revokedby issuing notice, no other evidence is available in support of theappellants' case, except the interested testimony of the firstappellant as D.W.3 and the alleged admission made by P.W.2. It hasbeen clearly demonstrated that the appellants herein were sailingwith the respondents 2 and 3 herein in the connected suit filed bythem, namely O.S.No.200 of 2004. The alleged admission made byP.W.2. would, at best amount to assertion which cannot be usedagainst the first respondent herein as an admission. Clearsuggestion denying the said facts have also been made on behalf ofthe first respondent herein while cross-examining P.W.2. Not evena scrap of paper to show that the appellants paid rent either toPeriyathayee or to the first respondent herein has been produced.The court below has properly analysed the evidence and came to theconclusion that the plea of the appellants that they were tenantsunder Periyathayee could not be sustained. This court also, aftergoing through the evidence and making an independent appreciationof the evidence on record, comes to the conclusion that theappellants have miserably failed to substantiate the contention.Therefore, the finding of the court below, that the appellants havenot proved their alleged status as tenants of the suit property has https://hcservices.ecourts.gov.in/hcservices/ got to be confirmed and accordingly confirmed.16. In view of the findings recorded in respect of point Nos.1and 2, point no.3 has got to be answered against the appellants andin favour of the first respondent. Accordingly this court holdsthat the first respondent is entitled to the relief of declarationand recovery of possession as prayed for in the suit. There is nomerit in this appeal and the same deserves to be dismissed.Accordingly this appeal is dismissed with costs.Sd/-Assistant Registrar/true copy/Sub Assistant RegistrarasrTo1.The Additional District Judge (Fast Track Court No.1), Salem.2.The Record Keeper, VR Section High Court, Madras.+ 1 cc to Mr.T.Muruga manikkam, Advocate SR No.32702+ 1 cc to Ms.R.Meenal, Advocate SR No.32678Judgment inA.S.No.562 of 2006RA(CO)JJM(11.07.08)