2021 Supreme(Mad) 750

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Rukkumani & Another - Appellant
Versus
Albonsa - Respondent
S.A. No. 1614 of 2008
Decided On : 23-03-2021

Point of law: When the material and record clearly established that there is no house site available on the ground for the plaintiff as the said site has already been sold by the original owner B.A.Viswanatha Chettiar in the year 1980 and as such the plaintiff under vendor who have purchased the said site 1981 has no right or title in respect of the said house site whether the Courts below are correct in granting the relief to the plaintiff which is contrary to the sale deeds relied on by the respective parties

Headnote:

Code of Civil Procedure, 1908 – Section 100 – Suit for declaration, mandatory injunction, possession and mesne profits – Challenge in this second appeal is made to the Judgment and Decree passed in A.S. on the file of the Principal Subordinate Court, Krishnagiri, confirming the Judgment and Decree passed in O.S. on the file of the District Munsif Court, Krishnagiri. – Case of the plaintiff, in brief, is that Sandhana Mary had purchased the suit property from her vendor viz., one B.A.Viswanatha Chettiar vide sale deed and enjoyed the same and the plaintiff has purchased the suit property from Sandhana Mary under the registered sale deed for a valid consideration and since then, in the possession and enjoyment of the same by way of obtaining patta, paying kist etc., and the defendants have no manner of right, title or possession over the suit property. – The house site situated on the southern side of the suit property originally belonged to one Koli Basha Sahib and the defendants appear to have purchased the said house site and thereby, falsely claiming title in a portion of the suit property and endeavoured to encroach into a portion of the suit property unlawfully and the same had been prevented by the plaintiff and pending the suit, the defendants had unlawfully occupied the suit property and put up the construction illegally and the same had been noted by the advocate commissioner, who has been appointed based on the application preferred by the plaintiff and the advocate commissioner's report would reveal that the unlawful construction has been put up by the defendants in the suit property, hence, according to the plaintiff, she has been necessitated to lay the suit against the defendants for appropriate reliefs.

Finding of court: Plaintiff having miserably failed to establish her claim of title to the suit property and the case projected by the plaintiff that the defendants are endeavouring to encroach into her property and subsequently, put up the foundation unlawfully completely goes out and therefore, it is evident that the plaintiff would not be entitled to secure the other reliefs prayed for by her. – In such view of the matter, the plaintiff, accordingly, is found to have not raised any objection at the earliest point of time resisting the defendants from putting up the construction in the suit property and acquiesced to the same and when the materials placed on record go to show that the defendants had put up the foundation in their property immediately after they had purchased the property under Ex.B1 sale deed and completed the construction in the year 1996 and therefore, it is noted that inasmuch as the plaintiff has no valid claim of any title, possession and enjoyment of the suit property as sought to be projected by her by virtue of Exs.A1 & A2, it is evident that she had not chosen to make any objection or prefer any action to prevent the defendants from putting up the construction in her property immediately and acquiesced to the same and in such view of the matter, the Courts below having failed to consider the same in the proper perspective had erred in granting the other reliefs prayed for by the plaintiff. – Plaintiff having miserably failed to establish her vendor's claim of title to the suit property and in turn, her claim of title to the suit property as above pointed out, the suit property having been already conveyed to Josphine Mary by the previous vendor B.A.Viswanatha Chetty vide Ex.B4 sale deed, it has been rightly contended by the defendants' counsel that Ex.B4 sale deed belies the case of the plaintiff i.e. her source of title to the suit property. – The substantial questions of law formulated in the second appeal are accordingly answered in favour of the defendants and against the plaintiff. – Judgment and Decree passed in A.S. on the file of the Principal Subordinate Court, Krishnagiri, confirming the Judgment and Decree passed in O.S. on the file of the District Munsif Court, are set aside and resultantly, the suit laid by the plaintiff in O.S. is dismissed with costs.

Result: Second Appeal Allowed