The central legal point established in the judgment is that a claim of possession based on an alleged agreement for sale requires proper evidence and performance of obligations under the agreement, and the absence of such evidence can lead to a dismissal of the claim.

JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree dated 10.07.2009 passed by the learned Subordinate Judge, Kuzhithurai in A.S.No.56 of 2006 in confirming the judgment and decree, dated 28.11.2005 passed by the learned Principal District Munsif, Kuzhithurai in O.S.No.509 of 2001.

1. Aggrieved over the concurrent findings and decree and judgment of the Courts below granting decree for recovery of possession and mesne profit at the rate of Rs.600/- per annum from 01.04.1997 till the date of recovery of possession, the present Second Appeal is filed.

2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.

3. The brief facts leading to filing of the present Second Appeal is as follows:

3. (1). The plaintiffs are the owners of the property. The defendant entered into the possession of the property as lessee with the plaintiffs and occupied the plaint schedule building on a monthly rent of Rs.50/-. The rent agreement was for a period of two years terminable by 01.04.1997. The tenancy stood terminated and immediately, the plaintiffs sent a legal notice for eviction. However, the defendant had evaded eviction and on the contrary, he has filed a suit in O.S.No.238 of 1995, before the Munsif Court, Kuzhithurai, for permanent injunction. The suit in O.S.No.509 of 2001 is filed for recovery of possession.

4. It is the contention of the defendant that the defendant is the brother-in-law of the plaintiffs. The properties were managed by the defendant since the first plaintiff was working in a foreign country and the second plaintiff was working in the State of Maharastra. It is also the contention of the defendant that the plaintiffs agreed to execute the sale deed in favour of the defendant in respect of one acre of land in R.S.No.173/5 inclusive of the suit building to the defendant for a sum of Rs.1,00,000/- (Rupees One Lakh only) and paid a sum of Rs.85,000/- (Rupees Eighty Five Thousand only) as an advance. His contention is that the alleged rental agreement has not taken effect to in view of the agreement for sale and acceptance of the advance.

5. Based on the above pleadings, the trial Court has framed the following issues:

“1. Whether the plaintiffs are entitled to the decree for eviction against the defendant in the suit building and recovery of the same through Court?

2. Whether the plaintiffs are entitled to the mesne profit at the rate of Rs.600/- per annum from 01.04.1997 till the date of recovery of possession?

3. To what relief and costs?”

6. During trial, on the side of the plaintiffs, P.W.1 was examined and Ex.A.1 to Ex.A.3 were marked. On the side of the defendant, Ex.B.1 and Ex.B2 were marked and no witnesses were examined.

7. The trial Court had appreciated the evidence and decreed the suit and the First Appellate Court also confirmed the same, as against which the present Second Appeal is filed.

8. While admitting this Second Appeal, the following substantial questions of law have been framed by this Court:

“(1).Whether the Courts below are right in holding that there is landlord tenant relationship between the parties, who are none other than brother-in-law, when the rental agreement was not produced before the Court?

(2).Whether the Courts below are right in shifting the burden to the defendants in proving the tenancy?”

9. It is the contention of the learned counsel appearing for the appellant that the Courts below have not considered the documents, viz., Ex.B.1 and Ex.B.2 properly and in fact, the appellant is in possession of the property pursuant to the agreement for sale and therefore, the finding of the Courts below was not based on proper evidence of law. Hence, he prayed for allowing this Second Appeal.

10. The learned counsel appearing for the respondents would submit that both the Courts below have factually considered the evidence and arrived at a factual conclusion. Therefore, the judgment and