IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.562 of 2006 1) Mangaiarkarasi 2) Mathivanan ... Appellants Vs. 1) S.Mani 2) S.Jayabal 3) S.Sugumaran This First Appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 as against the Judgment and Decree dated 24.02.2006 of the learned Additional District Judge (Fast Track Court No.1), Salem made in O.S.No.201 of 2004 and set aside the same For Appellant : M/s.T.Murugamanickam For Respondent : Ms.Hema Sampath for R.Subramanian (for R1) JUDGMENT
This appeal is directed against the judgment and decree of the learned Additional District Judge (Fast Track Court No.1), Salem dated 24.02.2006 made in O.S.No.201 of 2004.
2. The first and second defendants in the suit are the appellants in this appeal. The plaintiff in the suit is the first respondent in this appeal. Defendants 3 and 4 in the suit are the respondents 2 and 3 herein. The original suit was filed by the first respondent herein for a declaration of his absolute title in respect of the suit property and for recovery of possession of the same from the appellants/defendants 1 and 2.
3. According to the plaint averments, one Periyathayee (mother of plaintiff and defendants 1, 3 and 4) was the absolute owner of the suit property, having purchased the same from one Chandrika wife of Chandrakanth under a registered sale deed dated 15.07.1976 and the first respondent herein/plaintiff became the owner of the said property by virtue of a gift settlement deed executed by the above said Periyathayee on 06.09.2001.
4. It is the further contention of the first respondent/plaintiff that the first appellant and her husband the (second appellant) were in permissive occupation of the suit property and that they had to vacate and hand over possession as and when the license would be revoked. It was contended further that after he became the owner of the suit property by virtue of the above said settlement gift deed dated 06.09.2001, the first respondent/plaintiff revoked the license granted by his mother and demanded the appellants/defendants 1 and 2 to vacate the premises and hand over possession and that since the appellants/defendants refused to do so, he was constrained to file a suit for the above said reliefs.
5. The suit was resisted by the appellants/defendants 1 and 2 by filing written statement denying the plaint allegations to the effect that they were licensees and contending that they were tenants in respect of the suit property under Periyathayee paying a monthly rent of Rs.100/- ever since the inception of the tenancy in 1982. The respondents 2 and 3 / defendants 3 and 4 filed a written statement contending that the suit property was not an absolute property of their mother Periyathayee and on the other hand, the suit property was purchased in her name using the common funds of the family as she happened to be the eldest member of the family. They had also contended before the court below that the settlement deed dated 06.09.2001 executed by Periyathayee in favour of the first respondent/plaintiff would not bind them and the same was not enforceable against them.
6. On similar pleadings, the respondents 2 and 3 herein, as plaintiffs, filed another suit O.S.No.200/2004 claiming partition of the present suit property and another property. The first respondent herein contested the said suit only in respect of the suit property concerned in this appeal and conceded the claim for partition made in respect of the other property. Both suits were tried together and a common judgment was pronounced decreeing O.S.No.201 of 2004 in its entirety and granting a preliminary decree for partition in respect of the item 2 of the suit properties described in the schedule attached to the plaint in O.S.No.200 of 2004 and dismissing the said suit for partition in respect of the item no.1 therein, which is the suit property concerned in this appeal. The first appellant herein was the third defendant in the above said connected suit O.S.No.200 of 2004. The appellants herein have chosen to file an appeal against the decree passed in O.S.No.201 of 2004 alone. No appeal has been preferred against the decree passed in the connected suit in O.S.No.200 of 2004.
7. In this appeal, a preliminary point was raised on behalf of the first respondent regarding the maintainability of the appeal, in view of the failure on the part of the appellants to file any appeal against the judgment and decree passed in O.S.No.200 of 2004, stating that the finding recorded therein regarding the plea of the first respondent herein claiming title to the suit property concerned in this appeal would operate as a constructive resjudicata. However, it is conceded on behalf of the first respondent herein that the question regarding the alleged tenancy right could be canvassed in this appeal.
8. In the light of the above said submissions, the following points arise for consideration in this appeal.
1) Whether the finding of the court below regarding the title of the first respondent herein in the connected suit O.S.No.200 of 2004 has become final and operates as constructive resjudicata in this appeal?
2) Whether the plea of the appellants/ defendants 1 and 2 that they are the tenantes in respect of the suit property can be sustained?
3) Whether the first respondent/plaintiff is not entitled to the relief of declaration and recovery of possession as prayed for?
9. This court heard the submissions of Mr.T.Murugamanickam, learned counsel appearing on behalf of the appellants and of Mrs.Hema Sampath, learned senior counsel representing Mr.R.Subramanian on behalf of the first respondent. The materials available 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, Hasthampatty Village, Salem along with a tiled cattle shed bearing door No.8RI is the suit property in respect of which the first respondent herein filed the suit O.S.No.201 of 2004 for the relief of declaration and injunction. Whereas the respondents 2 and 3 herein had filed a suit in O.S.No.200 of 2004 for partition showing the said property as the first item and another property as the second item. There is no dispute regarding the property shown as second item in O.S.No.200 of 2004. Regarding the property which is the subject matter of the present appeal, shown as first item of the suit properties in the connected O.S.No.200 of 2004, there was a keen contest between the parties. The following were the issues framed by the trial court in the said connected suit O.S.No.200 of 2004
1) Whether the settlement deed dated 06.09.2001 executed by the first defendant in favour of the second defendant is true and valid?
2) Whether the plaintiffs are entitled to 1/3rd of the suit properties?
3) Whether plaintiffs are entitled to a preliminary decree 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 in O.S.No.201 of 2004
” 1) Whether the plaintiff is entitled to the suit property? Whether he is entitled to declaratory relief as sought for?
2) Whether plaintiff is entitled to the relief of permanent injunction?
3) To what reliefs the plaintiff are entitled to?
4) Whether the plaintiff and defendants are the joint owners of the suit property?
12. Evidence was recorded common for both the suits in O.S.No.200 of 2004. The respondents 2 and 3 herein were examined as P.W.1 and P.W.2. Periyathayee and first respondent herein were examined as D.W.1 and D.W.2 whereas the appellants herein and one Ponni were examined as D.W.2, D.W.3 and D.W.4 respectively. Ex.A1 to Ex.A3 and Ex.B1 to Ex.B39 were marked.
13. The learned trial judge on an appreciation of evidence gave a categorical finding that the property concerned in this appeal which had been shown as the first item of the suit property in the connected suit O.S.No.200/2004 was the absolute property of Periyathayee and the first respondent herein became entitled to the same by virtue of the gift settlement deed executed by Periyathayee. Based on the said finding, the trial court negatived the claim for partition made by the respondents 2 and 3 herein/plaintiffs in O.S.No.200 of 2004 in respect of the said property. The registered sale deed under which the said property was purchased in the name of Periyathayee has been produced and marked as Ex.B1. Ex.B2 to Ex.B6 are other documents to show that the revenue records, electricity connection etc. stood in the name of Periyathayee. The registered settlement deed executed by Periyathayee in favour of the first respondent herein dated 06.09.2001 has been marked as Ex.B7. Besides the said documents, several other documents have been marked as Ex.B8 to Ex.B39 on behalf of the first respondent herein to show that the property was enjoyed by Periyathayee as her own till she gave it as a gift under Ex.B7 and thereafter the first respondent herein was dealing with the said property as his own.
14. Marshaling the evidence, both oral and documentary, the learned Trial Judge gave a finding that the property absolutely belonged to the first respondent herein. Based on such a finding, the plea made by the respondents 2 and 3 herein/plaintiffs in the connected suit in O.S.No.200 of 2004 for partition was negatived. The said finding was not merely incidental to the main issue involved in the said connected suit. The said finding happened to be the foundation on which the claim for partition was negatived. Admittedly, no appeal has been preferred against the decree passed in the said connected suit O.S.No.200 of 2004. As such, as rightly pointed out by the learned senior counsel for the first respondent, the said finding regarding the title of the first respondent herein, in respect of the property concerned in this appeal, recorded in the connected suit shall definitely operate as constructive resjudicata for the present appeal. The first point is answered accordingly.
15. The next point to be discussed is whether the appellants have substantiated their contention that they were the tenants in respect of the suit property and hence the prayer for recovery of possession based on the alleged termination of license has been substantiated. As already pointed out the finding that the first respondent herein is the absolute owner of the suit property, has become final. Based on his title and based on the alleged revocation of license, the first respondent has sought for a decree for recovery of possession also. According to the first respondent, the appellants being daughter and son-in-law of Periyathayee, the erstwhile owner of the property, they were allowed to reside therein as permissive occupants and after the first respondent became the owner of the property by virtue of Ex.B7, he gave notice revoking the license and demanding delivery of possession. The said demand made by the first respondent has not been denied. On the other hand, the appellants would contend that the claim of the first respondent that the appellants were licensees could not be sustained, as they were in fact tenants under Periyathayee and were paying a monthly rent of Rs.100/-. As against the overwhelming evidence adduced on the side of the first respondent herein to prove his case that the appellants herein were only permissive occupants and the license was sought to be revoked by issuing notice, no other evidence is available in support of the appellants’ case, except the interested testimony of the first appellant as D.W.3 and the alleged admission made by P.W.2. It has been clearly demonstrated that the appellants herein were sailing with the respondents 2 and 3 herein in the connected suit filed by them, namely O.S.No.200 of 2004. The alleged admission made by P.W.2. would, at best amount to assertion which cannot be used against the first respondent herein as an admission. Clear suggestion denying the said facts have also been made on behalf of the first respondent herein while cross-examining P.W.2. Not even a scrap of paper to show that the appellants paid rent either to Periyathayee or to the first respondent herein has been produced. The court below has properly analysed the evidence and came to the conclusion that the plea of the appellants that they were tenants under Periyathayee could not be sustained. This court also, after going through the evidence and making an independent appreciation of the evidence on record, comes to the conclusion that the appellants have miserably failed to substantiate the contention. Therefore, the finding of the court below, that the appellants have not proved their alleged status as tenants of the suit property has got to be confirmed and accordingly confirmed.
16. In view of the findings recorded in respect of point Nos.1 and 2, point no.3 has got to be answered against the appellants and in favour of the first respondent. Accordingly this court holds that the first respondent is entitled to the relief of declaration and recovery of possession as prayed for in the suit. There is no merit in this appeal and the same deserves to be dismissed. Accordingly this appeal is dismissed with costs.
26.06.2008
Index : Yes
Internet : Yes
asr
To
The Additional District Judge
(Fast Track Court No.1), Salem
P.R.SHIVAKUMAR, J.,
ASR
Judgment in
A.S.No.562 of 2006
Dated : 26.06.2008