CHINNATHAMBI Vs. POOMALAI

JUDGEMENT

(1.) The plaintiffs in O.S No.50 of 2001 on the file of the Additional District Munsif, Sankarankovil are the appellants in this second appeal. The appellants filed the said suit seeking the reliefs of declaration, permanent injunction, mandatory injunction and recovery of possession. The reliefs of declaration and permanent injunction were sought in respect of the first item. In respect of the second item, the reliefs of declaration as well as the mandatory injunction/recovery of possession was sought. The first schedule measures 21 cents. The second schedule measures 1 1/2 cents. Thiru. Poomalai filed his written statement denying the plaint averments. According to him, the plaintiffs originally sold eight cents of land on the western side of the suit schedule property. Based on the oral sale, Poomalai took possession of the eight cents and also put up construction thereon. The defendant controverted the claim of the plaintiffs that they were not aware of the constructions put up thereon. The learned trial Judge framed the necessary issues. The first plaintiff Chinnathambi examined himself as PW.1 and one Manuvelraj as PW.2. Exs.A1 to A3were marked. The defendant examined himself as DW. 1 and two other witnesses were examined as DW.2 and DW.3. Exs.B1 to B4 were marked. An Commissioner was appointed and he inspected the suit property and he submitted his report with sketch and plan. They were marked as Court Exs.1 and 2. After considering the evidence on record, the learned trial Judge by judgment and decree dated 27.06.2003 decreed the suit as prayed for. Aggrieved by the same, the defendant Poomalai filed A.S No. 101 of 2003 before the Sub Court, Sankarankovil. By the impugned judgment and decree dated 18.03.2004, the first appellate court partly allowed the appeal and suspended the reliefs of declaration and enjoyment in respect of the entire property other than the six and half cents on the western side. The first appellate court sustained the claim of the defendant that the property occupied by him was orally sold by the plaintiffs and only with their knowledge and acquiescence, the constructions were put up. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law:

(2.) Heard the learned counsel on either side.

(3.) The learned counsel appearing for the appellants reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellants. It is obvious from Ex.A1 that the entire suit schedule property measuring 22 1/2 cents belonged to one Ponnaiah Nadar. That the encroached portion also originally belonged to Ponnaiah Nadar is not in doubt. Following the demise of Ponnaiah Nadar, the property devolved on the plaintiffs. It is well settled that there cannot be any plea of oral sale. The contract of sale has to be necessarily in writing. If the sale consideration is above Rs. 100/-, then, it will have to be compulsorily registered. Therefore, he submitted that the first appellate court went completely wrong in sustaining the contention of oral sale and granting relief to the defendant on that basis. According to the learned counsel for the appellants, the defendant was a rank trespasser and therefore, the question of protecting his possession against the true owner will not arise at all. He also would submit that the plaintiffs were absolutely unaware of the construction put up by the defendant. Therefore, the plea of acquiescence also has to be rejected. He called upon this Court to set aside the impugned judgment and decree and restore the judgment and decree of the trial court.