M A ADAM Vs. R MARUDAI

JUDGEMENT

(1.) THE plaintiff in the suit is the appellant.

(2.) THE case in brief is as follows: THE plaintiff filed the suit for recovery of possession of the suit property. THE plaintiff took the suit property from the original owner named Naga Naicker on a monthly rent of Rs.14 to run a cycle shop from 19.10.1962. In July, 1982, the plaintiff was asked to vacate the property and rent was also refused by the landlord. THE plaintiff sent the rent by money order, but it was refused. On 17.5.1983, the plaintiff met with an accident and taking treatment for two months and taking advantage of this, the 1st defendant in collusion with the 2nd defendant, demolished the building in the property and removed the articles as well as cash. A police complaint was also given, but no action was taken. THE defendants are trying to put up new building in the property after taking forcible possession. THE defendants resisted the suit stating that the plaintiff was running the cycle shop in the premises. THE first defendant purchased the property along with other site from one Naga Naicker and his son on 5.7.1982 for a sum of Rs.3,400. Even prior to the sale in his favour, the 1st defendant insisted to get delivery of possession. THE plaintiff also agreed to vacate on payment of a sum of Rs.1,000 and the 1st defendant paid a sum of Rs.1,000 to the plaintiff on 2.7.1982 and after receiving the same only, he vacated the property and delivered possession. In fact, the plaintiff also acknowledged the delivery of possession of the suit property to the 1st defendant by attesting the sale deed dated 5.7.1982. THE 1st defendant after purchase, demolished the building and put up a new construction after getting approval from the authorities concerned. THE old building was not in existence and the plaintiff is not entitled to claim any relief. THE trial Court framed 5 issues and on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-34 were marked and on the side of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-4 were marked. THE trial Court decreed the suit and aggrieved against this, the defendants preferred A.S. No.84 of 1987 on the file of II Additional District Court, Trichy and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit and aggrieved against this, the plaintiff has come forward with the present second appeal.

(3.) EX.B-1 is the sale deed dated 5.7.1982 in favour of the 1st defendant. It is the specific case of the respondents that the plaintiff received the sum of Rs.1,000 and surrendered possession of the property with tiled roof. The point that has to be considered is whether the plaintiff had surrendered possession of the property or whether the respondents took forcible possession of the property, demolished the building and put up a new construction and as such, whether the plaintiff is entitled to get recovery of possession. The lower appellate Court considered the evidence of P.W.1, wherein he had admitted that he had received a sum of Rs.1,000 from the 1st defendant; but would explain that he had received the same to pay the erstwhile owner for advance to purchase the property. This is one piece of admission on the part of P.W.1 for having received the sum of Rs.1,000. There is also specific recital under EX.B-1 to the effect that possession of the property was also given. Further more, P.W.1 had also attested in EX.B-1, thereby indicating that possession was given to him. Now, it is not open to the appellant to contend that he had not surrendered possession of the property and possession was also not given by him. Apart from that, P.W.1 had also figured as identifying witness before the Sub Registrar at the time of registration of EX.B-1. These facts would only indicate that knowledge can be imputed to the appellant/ plaintiff. It is only under such circumstance, the lower appellate Court came to the conclusion that the plaintiff received the sum of Rs.1,000 and surrendered possession of the property and not only attested EX.B-1 but also figured as identifying witness for registration of the document.