IMPORTANT POINT
The burden of proof in establishing joint family purchase and the presumption of permissive possession influenced the court's decision in upholding the plaintiff's right to possession.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the Judgment and Decree dated 03.10.2018 made in A.S. No.91 of 2018 on the file of the Principal Sub-Judge at Puducherry confirming the judgment and decree dated 27.08.2018 made in O.S. No.1219 of 2006 on the Court of the II Additional District Munsif at Puducherry and allow this Second Appeal.)

1. The defendant, in a suit for recovery of possession, who suffered concurrent findings before the trial Court as well as the First Appellate Court is the appellant.

2. The parties are described as per their litigative status before the trial Court.

3. The brief facts that are necessary for deciding the Second Appeal are as follows:

4. The case of the plaintiff is that he is the owner of the suit property, having purchased the same under a registered sale deed dated 11.10.1995, for a valid consideration. The defendant is the brother of the plaintiff and the plaintiff permitted the defendant and another brother, one Palaniswamy to occupy the suit property to meet his temporary residential requirements in the year 2002. However, the defendant's attitude changed and he started asserting rights in the suit property and therefore, the plaintiff issued pre suit notices to the defendant calling upon him to vacate and handover vacant possession. In view of the fact that the defendant did not even choose to reply to the pre-suit notices, the plaintiff has come forward to file the suit for recovery of possession.

5. The defendant filed a written statement resisting the case of the plaintiff on the ground that the property was not the self acquired property of the plaintiff, but purchased out of joint exertions and earnings, by all the other siblings, including the defendant. Therefore, the defendant denied the allegation of permissive occupation of the plaintiff and sought for dismissal of the suit.

6. The Trial Court, decreed the suit and the First Appellate Court dismissed the Appeal, confirming the judgment and decree of the Trial Court and directed the defendant to vacate and hand over vacant possession of the suit property to the plaintiff. Aggrieved by the said concurrent findings of the Courts below, the present Second Appeal has been preferred by the defendant.

7. On 23.03.2020, the above Second Appeal was admitted on the following substantial questions of law:-

“(i) Whether the lower appellate Court was right in rejecting Exs.B1 and B8 in view of Section 92 of Indian Evidence Act?

(ii) Whether the Court below were right in not considering the evidence of P.W.1 where in P.W.1 has not specifically denied the execution of Ex.B8?”

8. I have heard Mr. M. Gnanasekar, learned counsel for the appellant and Mr. Usha Ramman, learned counsel for the respondent.

9. The learned counsel for the appellant would submit that the plaintiff has denied the execution of Ex.B8 and the evidence adduced shows that the plaintiff himself had admitted that under the said document, the property was purchased out of joint family exertions and earnings and therefore, the defendant had a right in the property and could not be termed as a permissive occupation and sought to be dispossessed. He would also place reliance on the following decisions:-

(i) G. Felshia Vasanthi Vs. R. Sekar @ Gunasekar reported in 2023 (3) CTC 184

(ii) G. Lakshmi and another Vs. U. Saraswathi reported in 2023 (3) CTC 30

(iii) Sri Marcel Martins Vs. M. Printer and Ors reported in (2012) 5 SCC 342

(iv) Paramjit Anand Vs. Mohan Lal Anand in CS (OS) No.575 of 2001 dated 04.04.2018.

10. Per contra, the learned counsel for the respondent/plaintiff would state that execution of Ex.B8 was not admitted by the plaintiff and the so called admission, which is sought to be put against the plaintiff, is not on a reading of the entire evidence as a whole and further, he would also state that he has examined two of his other brothers who have also affirmed that the property is the self acquired property of the plaintiff.