Validity of property sale, entitlement to seek recovery of possession, applicability of Section 115 of the Indian Evidence Act

(Second appeal under Section 100 CPC against the decree and judgment dated 20.03.1995 made in A.S. No.12 of 1994 on the file of Subordinate Judge, Krishnagiri reversing the decree and judgment dated 10.04.1992 made in O.S. No. 28 of 1984 on the file of District Munsif Court, Hosur.)

The defendants 2 to 5 are the appellants in this second appeal. The first defendant namely Nagarajan died during the pendency of the suit and his legal heirs were impleaded as defendants 3 to 5 in the suit.

2. The respondent herein has filed the suit in O.S. No. 28 of 1984 on the file of District Munsif Court, Hosur for declaration to declare that they are the owners of the suit property, for recovery of possession, mandatory injunction for demolition of the temporary houses illegally put up by the appellants herein and for costs. The said suit was dismissed. The appeal filed by the respondent herein in A.S. No. 12 of 1994 on the file of Subordinate Judge, Krishnagiri was allowed thereby the decree and judgment passed by the trial court was set aside, hence, the present second appeal.

3. The case of the appellants is that they have constructed their respective houses in one corner of the suit property, which is having an extent of 2.02 acres; that the said houses were constructed by them in the year 1968 i.e., 15 years prior to institution of the suit; that the house tax receipts and other documents issued in their favour would show that they are in continuous possession and enjoyment of the suit property with the knowledge of the respondent.

4. The case of the respondent is that the suit property was purchased by them under Ex.A1, sale deed dated 22.04.1982 from the Executive Officer of Arulmighu Parvadha Kasi Visveswarasamy Temple for a total consideration of Rs.91,800/- which was registered as document No. 449 of 1982. Even prior to completion of sale under Ex.A1, the possession of the property was delivered by the vendor to the respondent under Ex.A13 dated 07.07.1971. It is also the case of the respondent that prior to purchase, they have obtained encumbrance certificate Ex.A2, verified the title of the vendor and satisfied themselves that there is no encumbrance in the suit property. Even prior to completion of sale, the respondent issued Ex.A3, notice dated 27.05.1980 to the first defendant in the suit, which was received by him but no reply was given; that the notice under Ex.A5 dated 27.05.1980 issued to the first appellant herein was served but he has not chosen to give any reply; that the first defendant in the suit was employed in Electricity Department, hence, he managed to obtain electricity service connection to the temporary houses put up in the suit property.

5. Before the trial court, the respondent herein has marked Exs. A1 to A13 and one Ganesan, Chinnadurai, Basavaraj and Ramachandran were examined as Pws 1 to 4 respectively. On behalf of the appellants, Exs. B1 to B6 were marked and the first and second appellants examined themselves as Dws 1 and 2 and one Krishnamoorthy Rao, Kumar and Paneerselvam were examined as Dws 3 to 5 respectively.

6. Considering the oral and documentary evidence, the trial court dismissed the suit on the ground that even prior to Ex.A1, sale deed dated 22.04.1982, the appellants herein have constructed their respective houses in the suit property which was not objected to by the temple authorities nor any steps taken to evict them; that in the notices Exs. A3 and A5 dated 27.05.1980 issued to the appellants it is admitted by the respondent that the appellants have constructed the houses in the suit property; that in view of the fact that the temple authorites have not taken any action prior to Ex.A1, they are estopped from claiming any right in the suit property as contemplated under Section 115 of the Indian Evidence Act

7. The first appellate Court allowed the appeal preferred by the respondent herein on the ground that though the appellants have admitted the fact that the temple is the owner