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2017 Supreme(Mad) 1789

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAVINDRAN, J.
Vasudeva Raja (Died) – Appellant
Versus
Rahamathi Bivi – Respondent
A.S. No. 1294 of 1995 and C.M.P. No. 17728 of 1995
Decided On : 21-09-2017

Advocates Appeared:
For the Appellant : Mr. D. Malaichamy.
For the Respondent: Mr. Lakshmishankar.

Headnote:

Transfer of Property Act - Section 53-A - Plea of oral sale agreement - Recover possession of suit property and profits - Part performance - Property described in plaint schedule shown in plan as ACDF absolutely owned by first plaintiff, he having purchased same from P. Krishnamurthy, and being put in possession of same and enjoying property as absolute owner thereof - Title of first plaintiff to suit property had been upheld by Judgment and Decree in O.S. on file of Subordinate Court - First plaintiff purchased suit property only to locate his business in that place and he being appointed as sole selling agent of "Jawa" make Motorcycles for District and said business was run in suit building and a workshop was also running in suit building for the repair of motorcycles - Whether plea of oral sale agreement made by first defendant is true - Whether plaintiffs are entitled to recover possession of suit property and profits as claimed by them in plaint - Held, It is found that the plaintiffs title to suit property is not in issue as such - Same has also been admitted by first defendant examined as DW-1 - From pleadings set out by respective parties, it is found that suit has been laid by deceased first plaintiff for recovery of possession of suit property and profits based upon title - Inasmuch as there is no dispute as regards title of plaintiffs in respect of suit property, it is found that inasmuch as defendants resisted the claim of plaintiffs for recovery of possession of \suit property on defence projected by them, it is seen that as rightly determined by Court below, the onus is upon defendants to establish their defence to thwart claim of plaintiffs - For said purpose, defendants have set up plea of oral sale agreement - Court below has rightly determined that oral sale agreement pleaded by defendants is not true – Court do not find any reason to differ with above said conclusion of Trial Court, therefore, also hold that plea of oral sale agreement set out by defendants is not true - Plaintiffs are entitled to recover possession of suit property and also other reliefs from defendants as claimed in plaint - First Appeal is dismissed.

JUDGMENT :

1. The first appeal is directed against the Judgment and Decree, dated 30.11.1994, passed in O.S. No. 71 of 1987, on the file of the Subordinate Court, Kumbakonam.

2. The parties are referred to as per the ranking in the original suit.

3. The suit has been laid by the plaintiffs for the reliefs of possession and profits.

4. The case of the plaintiffs in brief is as follows:

4.1. The property described in the plaint schedule and shown in the plan as ACDF absolutely owned by the first plaintiff, he having purchased the same from P. Krishnamurthy, on 26.03.1963 and being put in possession of the same and enjoying the property as the absolute owner thereof. The title of the first plaintiff to the suit property had been upheld by the Judgment and Decree in O.S. No. 74 of 1975, dated 15.11.1978, on the file of the Subordinate Court, Kumbakonam. The first plaintiff purchased the suit property only to locate his business in that place and he being appointed as the sole selling agent of "Jawa" make Motorcycles for Thanjavur District and the said business was run in the suit building and a workshop was also running in the suit building for the repair of the motorcycles. The first defendant is a Mechanic by profession and doing repair works for the oil engines and pump-sets owned by the first plaintiff and also doing odd jobs, such as, repair of the vehicles etc. and for the work done by him, he was paid remuneration. When the first plaintiff started his business in the suit property, the first defendant was permitted to occupy the rear portion of the building which is the suit property, during September, 1976, as a licensee to keep watch over the premises marked in the plan as BCED. In the front portion, vehicles were stocked and the repair works were done in that place shown as ABEF. For the work done, the first defendant was paid remuneration and he was only a licensee of the suit property and not having any better right. The business of the first plaintiff was shifted to another building bearing Door No. 79 as the front portion of the suit door number ABEF had become old and required reconstruction. The rear portion is also under disrepair and a major portion of the same had fallen down. The first defendant with his family members is residing only in that portion. The first plaintiff wants to completely demolish and reconstruct the building and hence, terminated the permission granted to the first defendant by a notice, dated 02.05.1987 and the first defendant had sent a reply through his counsel on 27.05.1987, for which a rejoinder was sent on 10.06.1987. The contents of the reply notice sent by the defendants are absolutely false. It is false to state that the first plaintiff had agreed to convey the suit property to the first defendant and there was no such agreement at any time. The first plaintiff has no necessity to sell the suit property nor the first defendant has sufficient funds to purchase any property. The further assertion that the first defendant had entrusted jewels to the first plaintiff is false. There is no salary arrears due to the first defendant from the first plaintiff. The first defendant was paid his remuneration as and when he did the job and there was no fixed pay as asserted by him. There was no agreement to pay salary at the rate of Rs. 750/- per month to the first defendant. The defendants have no manner or right over the suit property and they have to vacate the same. It is false to state that the first defendant was appointed as the agent of the first plaintiff and looking after his transactions. Excluding the rear portion, the remaining portion is in the exclusive possession of the first plaintiff. The first plaintiff died on 23.03.1989 and his legal heirs are the plaintiffs 2 to 7 and they are entitled to the suit property. The second defendant is the son of the first defendant and after the suit, he is also working along with the first defendant and in possession of the suit property and his po







































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