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2020 Supreme(Mad) 462
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. RAJAMANICKAM, J.
Angalammal - Appellant
Versus
T.V. Nagappa Mudaliar (Died) & Ors. - Respondents
S.A. No. 1109 of 2005 and C.M.P. No. 15223 of 2005
Decided On : 19-05-2020
For the Appellant : Mr. N. Subbarayalu.
For the Respondents: Mr. A. Muthukumar.
Headnote:
Civil Procedure Code,1908 - Section 100 - Transfer of Property Act - Section 54 - Evidence Act - Section 116 - Payment of consideration - Delivery of possession of suit property - Second Appeal is filed Section of Code of Civil Procedure against Judgment and Decree in passed by Sub Court reversing Judgment and Decree passed by District Court -Second Appeal has been filed by plaintiff against judgment and decree passed by Sub Judge reversing judgment and decree passed by learned District - Appellant herein had filed suit file of District for delivery of possession of suit property and for recovery of arrears of rent - District by the judgment had decreed suit as prayed for with cost – Held, As already stated that plaintiff is Landlord and first defendant is tenant and in such case first defendant has to plead and prove that when the possession has become adverse to knowledge of plaintiff - But in case first defendant has not discharged aforesaid burden - Findings of First Appellate Court that first defendant has perfected title by adverse possession cannot be upheld - Court after taking into consideration of aforesaid facts had rightly that plaintiff is owner of suit property and first defendant is in possession of property only as tenant and tenancy has been properly terminated and first defendant is bound to deliver possession of suit property and also that defendants are liable to pay arrears of rent but First Appellate Court without considering aforesaid facts in proper perspective had erroneously reversed findings of trial Court – Hence judgment and decree passed by First Appellate Court are liable to be set aside – Accordingly substantial questions of law are answered in favour of appellant plaintiff - Appeal allowed
JUDGMENT :
PRAYER: This Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree dated 14.10.2003 in A.S.No.130 of 2001 passed by the Sub Court, Thiruvallur, reversing the Judgment and Decree dated 17.11.2000 in O.S.No.178 of 1992 passed by the District Munsif Court, Thiruttani.
This Second Appeal has been filed by the plaintiff against the judgment and decree passed by the learned Sub Judge Thiruvallur, in A.S.No.130 of 2001 dated 14.10.2003 reversing the judgment and decree passed by the learned District Munsif, Thiruttani, in O.S.No.178 of 1992 dated 17.11.2000.
2. The appellant herein had filed a suit in O.S.No.178 of 1992 on the file of the District Munsif, Thiruttani, for delivery of possession of the suit property and for recovery of arrears of rent of Rs.108/-. The learned District Munsif, Thiruttani, by the judgment dated 17.11.2000 had decreed the suit as prayed for with cost.
3. Aggrieved by the same, the defendants had filed an appeal in A.S.No.130 of 2001 on the file of the Sub Judge, Thiruvallur. The learned Sub-Judge, by the judgment and decree dated 14.10.2003 had allowed the said appeal with cost and set aside the judgment and decree passed by the Trial Court and dismissed the suit with cost.
4. Feeling aggrieved by the aforesaid judgment and decree of the First Appellate Court, the plaintiff has filed the present second appeal.
5. For the sake of convenience, the parties are referred to as described before the Trial Court.
6. The averments made in the plaint are in brief as follows:-
The plaintiff is the absolute owner of the suit property by virtue of a registered sale deed dated 24.08.1963. She took possession of the suit property on the date of purchase itself. Subsequently, on 26.08.1963, the first defendant who is the brother of the plaintiff's husband, has taken the suit property for lease from the plaintiff for monthly rent of Rs.3/- and executed a registered lease deed. As per the said lease deed, the lease was granted till 25.08.1968. After expiry of the said lease period, the first defendant should surrender possession of the suit property whenever demands made by the plaintiff. The first defendant had failed and neglected to pay the rent for the past three years and hence, a notice was issued on 06.03.1992 calling upon the first defendant to surrender possession of the suit property. The first defendant had received the said notice and sent a reply notice on 11.03.1992 with false allegations. But, he refused to surrender possession of the suit property. Further, the first defendant causing damage to the suit property and acting adverse to the interest of the plaintiff. The suit property is required to the plaintiff for the personal occupation. Hence, the plaintiff was constrained to file the above suit for eviction and for recovery of rent from 01.04.1989 to 31.03.1992. Subsequently, the defendants 2 and 3 who are the sons of the first defendant also claimed certain interest in the suit property and hence, they were added as defendants 2 and 3.
7. The averments made in the written statement filed by the first defendant are in brief as follows:-
It is false to state that the plaintiff had purchased the suit property for a valid consideration and that she was put in possession of the same. It is also false to state that on 26.08.1963, the plaintiff had leased out the suit property to the first defendant. It is also false to state that the first defendant had failed and neglected to pay the rent for three years and he is causing damge to the suit property. The real fact is that the plaintiff is the wife of the first defendant's elder brother. The first defendant is the youngest brother of one Velappa Mudali and Subramani Mudali. The said Velappa Mudali being the eldest brother of the said family, he managed the joint family till his death. After his death, the plaintiff's husband Subramani Mudali was managing the joint family. In the year 1963, the joint family in
