M. SARATHY Vs. SATHYA

JUDGEMENT

(1.) THIS second appeal has been directed against the concurrent findings of both the Courts below.

(2.) LEARNED counsel for the appellant submitted that when the appellant -plaintiff filed the suit for permanent injunction restraining the respondents -defendants herein from interfering with his peaceful possession and enjoyment of the suit schedule property, it was the claim of the appellant that the appellant, the first respondent's husband Mr.Achuthan alias Soundarajan and Mr.Mani alias Kamalasekaran are the sons of late Mr.Meganathan. The said Mr.Meganathan purchased the suit schedule property in the names of the aforesaid three sons as per Ex.A3, the sale deed dated 11.5.73. All the sons of Mr.Meganathan were commonly enjoying the property till his death. After the death of Mr.Meganathan in the year 1975, their mother also passed away in the year 1998, with the result, the brothers went for a partition on 10.5.89 and executed the partition deed as per Ex.A4. On the basis of the partition deed, 'A' schedule property was allotted to Mr.Mani alias Kamalasekaran, 'B' schedule property was allotted to the appellant and 'C' schedule property was allotted to Mr.Achuthan alias Soundarajan, the first respondent's husband. But the first respondent's husband sold away the 'C' schedule property to the appellant for a sum of Rs.1,25,000/ - and a sale agreement was also entered into with the appellant on 7.12.93 on receipt of the advance of Rs.10,000/ - and the balance amount was to be paid by the appellant to the first respondent's husband by 17.1.94. Thereafter, final payment was also received by the first respondent and her husband jointly. Pursuant thereto, the possession of the land in question was also delivered in favour of the appellant. From the date of delivery, the appellant has been in possession and enjoyment of the 'C' schedule property. But, however, after the death of the first respondent's husband, the respondents refused to execute the sale deed. In view of that, the appellant filed the suit for permanent injunction restraining the defendants from interfering with his peaceful possession. But the trial Court, he pleaded, only accepting the written statement filed by the respondents that there was no sale agreement between the appellant and the first respondent's husband, that the first respondent's husband did not receive Rs.10,000/ - as advance on 7.12.93, that no sale deed was executed as alleged on 17.1.94, that the balance sale consideration of Rs.1,15,000/ - was not even paid by the appellant to the first respondent's husband and that the appellant attempted to grab the 'C' schedule property after the death of his own brother, wrongly dismissed the suit holding that the appellant was not entitled to an order of permanent injunction, since there was no proof regarding the sale agreement with the first respondent's husband. Attacking the said finding, learned counsel for the appellant submitted that when the appellant had filed the suit only for permanent injunction restraining the respondents from interfering with his possession and enjoyment of the 'C' schedule property, as per the settled law, the appellant has to succeed on the strength of his own case, since he has proved his possession. But both the trial Court and the first appellate Court, wrongly applying the principle that the appellant has not proved the title and also the possession to the satisfaction of the Court, wrongly dismissed the suit. Therefore, the concurrent findings of both the Courts below, he pleaded, should be interfered with on the substantial question of law, namely, whether the admission of the respondents about the possession of the appellant on the suit property and claiming damages for use and occupation is not sufficient to claim the relief of permanent injunction?