GOVINDAN Vs. INDIRAN

JUDGEMENT

(1.) THIS second appeal arises out of the concurrent judgment passed by the courts below. The first defendant is the appellant before this Court. The plaintiff/ respondent herein has filed the suit in O.S. No. 4376 of 1997 for the relief of declaration and possession. For the sake of convenience, the parties shall be referred to as per their litigative status in the suit.

(2.) ACCORDING to the plaintiff, he and the first defendant are brothers and are sons of deceased Ekambaram. The second defendant was inducted as a tenant in the suit property by the first defendant. It is the case of the plaintiff that his father, during his life time, has purchased the property bearing Door No. 27, Sundarapuram Third Street, Pulianthope High Road, Chennai 600 012 way back in the year 1943 by means of a registered sale deed. Similarly, the plaintiff's father was assigned a land in R.S. No. 1735/29, bearing Door No. 26, which is the suit property, by the Government in the year 1939. By virtue of such ownership, the father of the plaintiff settled the entire property in Door No. 27 and 1/3rd share in Door No. 26 in favour of the plaintiff and remaining two shares were given to first defendant and another son Elumalai, who is not a party to the suit. Pursuant to such settlement, the plaintiff was in physical possession and enjoyment of the same by paying taxes and charges to the authorities concerned. While so, during the year 1978, the first defendant attempted to trespass into the suit property on the strength of a document purportedly signed by his father Ekambaram on 01.04.1978, marked as Ex.B1. In those circumstances, the plaintiff filed O.S. No. 360 of 1978 for bare injunction in which an order of status quo was granted. According to the plaintiff, he was appointed in Indian Overseas Bank and the order of appointment dated 02.01.1979 was served on him in the suit property. Further, for the notice sent by him, the first defendant sent a reply addressed to the plaintiff in the suit property. In other words, the plaintiff is in possession of the suit property bearing Door No. 26 as well as the property bearing Door No. 27. According to the plaintiff, he is living in the suit property along with his mother and the property bearing Door No. 27 was let out for rent to tenants. While so, the plaintiff was transferred from Thiyagadurgam to Villivakkam, Chennai, however, the plaintiff left his mother, wife and children to reside in the suit property while he was in employment to the transferred place. According to the plaintiff, in the year 1985, he built a new house at Thirunindravur and in the invitation for the house warming ceremony, his address was mentioned as Door No. 26. From 16.05.1989, the plaintiff shifted his place of residence to Thirunindravur and kept the suit property under lock and key. In those circumstances, the first defendant requested the plaintiff to permit him to reside in the suit property. Having regard to the proximity of relationship between the plaintiff and first defendant, being brothers, the plaintiff permitted the first defendant to reside in the suit property as a permissive occupant to commence a surgical polishing business for one year. Thereafter, the first defendant shifted his place of business to another location. While doing so, without any right, he has leased out the suit property to the second defendant. As the activities of the defendants has become prejudicial and detriment to the plaintiff to assert his right over the suit property, he has filed the suit.

(3.) BEFORE the trial court, the plaintiff/respondent herein marked Exs. A1 to A10, examined himself as PW1. On behalf of the first defendant, Exs. B1 to B9 were marked besides Ex.C1, the plaint in OS No. 360 of 1978 was marked. Apart from examining himself as DW1, three other witnesses as PW2 to 4 were examined on the side of the first defendant. The trial court, on appreciation of the oral and documentary evidence, concluded that Ex.B1, partition letter executed by the deceased Ekambaram was not registered and it could not be relied on. By holding so, the trial court decreed the suit filed by the plaintiff/respondent herein. Aggrieved by the decree and judgment of the trial court, the first defendant preferred A.S. No. 591 of 2005 before the first appellate Court which concurred with the findings of the trial court that Ex.B1, partition letter cannot be relied on to accept the defence put forth by the first defendant. The first appellate Court further held that Ex.B1 is not a registered one, the date was not typed and it was written as 30th January in pencil and only the year '1978' was typed. Even if Ex.B1 is accepted, there must be corresponding relinquishment of right of the first defendant in favour of the plaintiff with regard to Door No. 27 but there is no evidence forthcoming in this regard. Further, the value of the suit property as on the date of execution of Ex.B1 must be more than Rs. 100/ -, which so, non -registration of Ex.B1 cannot be treated as an admissible document besides being contrary to the Indian Registration Act. Therefore, the first appellate Court concluded that Ex.B1 will not confer or convey any title to the property in favour of any one. As regards adverse possession pleaded by the first defendant, the first appellate Court held that when a person claims right over a property, he is estopped from simultaneously claiming title by adverse possession. Consequently, the first appellate Court dismissed the first appeal.