Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.07.2014 CORAM THE HONOURABLE MR.JUSTICE T.RAJ.Second Appeal No.600 of 2014 M.Sarathy .Appellant -versus 1.
Sathya 2.
Chitra 3.
Devika .Respondents Memorandum of Grounds of Second Appeal under Section 100 of the Civil Procedure Code, against the judgment and decree dated 19.08.2013 passed in A.S.No.84 of 2010 by the learned XVIII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 14.12.2009 passed in O.S.No.7290 of 2007 by the learned VIII Assistant Judge, City Civil Court, Chennai.
For Appellant :: Mr.T.K.S.Gandhi for Mr.Peruman Saranyan JUDGMENT
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 fiRs.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 fiRs.respondent's husband.
But the fiRs.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 fiRs.respondent's husband by 17.1.94.
Thereafter, final payment was also received by the fiRs.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 fiRs.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 fiRs.respondent's husband, that the fiRs.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 fiRs.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 fiRs.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 fiRs.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?.
3.
This Court, fiRs.of all, is not able to find any merits, muchless any substantial question of law.
For admission of the second appeal, the existence of substantial question of law is a sine qua non.
Therefore, this Court, finding no substantial question of law for proper adjudication under Section 100 of the Civil Procedure Code, is not inclined to interfere with the concurrent findings of both the Courts below.
Secondly, the appellant filed the suit only for permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the 'C' schedule property, on the ground that the appellant has been in possession based on the sale agreement said to have been executed by the fiRs.respondent's husband on 7.12.93 on receipt of the advance amount of Rs.10,000/- and the balance amount was also paid by the appellant to the fiRs.respondent's husband on 17.1.94.
But the fiRs.respondent, by filing a detailed written statement, has denied the title of the suit property by stating that there was no sale agreement as alleged between the appellant and her husband.
It was her further case that as alleged by the appellant, neither the fiRs.respondent nor her husband received the amount of Rs.10,000/- as advance on 7.12.93 or executed the sale deed dated 17.1.94.
Under this background, both the Courts below, in fine tune with the basic principle that the appellant-plaintiff has to succeed on the strength of his own case, but not on the weakness of the defendants, holding that the appellant has miserably failed to prove his title and possession to the satisfaction of the Court, have rightly dismissed the suit.
Therefore, this Court finds no error or infirmity with the concurrent findings of both the Courts below.
Accordingly, the second appeal fails and it is dismissed.
No costs.
Index : yes/no 14.07.2014 ss To 1.
The VIII Assistant Judge City Civil Court Chennai 600 104 2.
The XVIII Additional Judge City Civil Court Chennai 600 104 T.RAJA, J.
ss Second Appeal No.600 of 2014 14.07.2014