IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13/03/2017 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM C.S.No.135 of 2014 1.M.Vijaya Raghunathan 2.V.Kalpaka ... Plaintiffs Vs 1.M.Chitra 2.M.Manimegalai 3.M.Ravi Shankar ... Defendants The Civil Suit is filed under Order VII Rule 1 of CPC read with Order IV Rule 1 of H.C.O.S. Rules, a) to grant a decree for declaration that the second plaintiff is the owner of the schedule mentioned property; b) to direct the first and third defendants to deliver possession of the second and first floor portion respectively in the schedule mentioned property to the plaintiffs; c) to grant a decree for permanent injunction restraining the defendants 1 and 2 from further encumbering the schedule mentioned property by way of lease mortgage or sale; and d) to award costs of this suit.
For Plaintiffs : Mr.R.Manickavel For Defendants : Set ex-parte J U D G M E N T The suit is filed for the following reliefs:-
a) to grant a decree for declaration that the second plaintiff is the owner of the schedule mentioned property;
b) to direct the first and third defendants to deliver possession of the second and first floor portion respectively in the schedule mentioned property to the plaintiffs;
c) to grant a decree for permanent injunction restraining the defendants 1 and 2 from further encumbering the schedule mentioned property by way of lease mortgage or sale; and
d) to award costs of this suit.
2. According to the plaintiffs, originally, the first plaintiff's father Late M.Muthuramalingam was the absolute owner of the suit property by virtue of the registered sale deed, dated 02.08.1980, registered as Document No.3083 of 180 at the SRO, Sembium. He died intestate, leaving behind his wife, the second defendant, the first plaintiff and the first defendant as his legal-heirs. After his demise, the defendants 1 and 2 have jointly released their 2/3rd share in the suit property in favour of the first plaintiff, by a release deed dated 21.07.2011, registered as Document No.2526 of 2011, at SRO, Anna Nagar. In view of the execution of release deed, the first plaintiff became the exclusive and absolute owner of the property.
3. The plaintiffs would further state that the first plaintiff's father Muthuramalingam had one another property in Thirumurthy Nagar, Nungambakkam, Chennai and he had given written instructions in the form of a letter, directing that Anna Nagar property should go to the first plaintiff and Nungambakkam property shall be given to the first defendant. According to his wishes, the defendants 1 and 2 have jointly executed a release deed in favour of the first plaintiff in respect of Anna Nagar property. Similarly, the first plaintiff and the second defendant have jointly executed a release deed releasing 2/3rd share in the Nungambakkam property to the first defendant. Since then, the parties have been in exclusive possession and enjoyment of the same.
4. The plaintiffs would claim that after the execution of the release deed, the first plaintiff has effected mutation of records in his name and transferred patta, property tax, CMWSS Board tax charges in his name and by a registered settlement deed dated 22.04.2013, the first plaintiff has settled the suit property in favour of his wife, the second plaintiff. Since then, she became the owner of the schedule mentioned property. The plaintiffs alleged that owing to family dispute of the first defendant with her husband, the first defendant sought permission of the first plaintiff to live with her mother in the suit property and on sympathy ground, she was permitted to stay in the second floor along with her mother, the second defendant herein. Since the first plaintiff was employed in USA, the rents from the tenants were collected by the first defendant and deposited in the account of the first plaintiff only till December 2011. Further without knowledge of the plaintiffs, the first defendant inducted the third defendant as a tenant in the first floor, by collecting advance of Rs.5,00,000/- [Rupees Five Lakhs only]. The said advance amount and rental amount is being misappropriated by the first defendant.
5. The plaintiffs would further state that the first defendant has no authority to induct the third defendant as a tenant and therefore, the occupation of the third defendant is an unauthorized one and he should be treated as a trespasser. The first plaintiff, by a notice dated 23.08.2013, called upon the third defendant to vacate and deliver possession. The first defendant on receipt of the notice, sent a reply on 24.08.2013 through email and another reply through her advocate on 03.09.2013, making false claims. Hence, the suit.
6. Despite sufficient opportunity was provided to the defendants they have not filed their written statements and hence, they were set ex-parte on 23.02.2017.
7. From the pleadings, the following issues arise consideration of this Court:-
(i) Whether the second plaintiff is the absolute owner of the property?
(ii) Whether the plaintiffs are entitled for recovery of possession, second and first floor from the defendants 1 to 3 respectively?
(iii) Whether the plaintiffs are entitled for permanent injunction, restraining the defendants 1 and 2 from encumbering the suit property?
(iv) To what relief the plaintiffs are entitled to?
The Issue Nos.(i) to (iii) are taken up for consideration.
8. In support of the case of the plaintiffs, one Mr.M.Palaniappan, father-in-law of the first plaintiff and father of the second plaintiff, was examined as P.W.1. He reiterated the averments made in the plaint and also marked Exs.A1 to A16.
Ex.A1 is the certified copy of sale deed, dated 02.08.1980 in favour of Mr.M.Muthuramalingam. Ex.A2 is the original death certificate of Mr.M.Muthuramalingam. Ex.A3 is the certified copy of Release Deed executed by the first and second defendant in favour of first plaintiff. Ex.A4 is the office copy of the affidavit filed in W.P.No.21984 of 2013 filed by the first plaintiff . Ex.A5 is the certified copy of cancellation of release deed executed by the first and second defendants. Ex.A6 is the certified copy of settlement deed executed by first plaintiff in favour of second plaintiff. Ex.A7 is the original legal notice issued by the plaintiff to the defendant, dated 23.08.2013. Ex.A8 is the copy of reply sent by the first defendant via e-mail, dated 24.08.2013. Ex.A9 is the original acknowledgment card of the receipt of legal notice dated 24.08.2013. Ex.A10 is the return cover dated 28.08.2013. Ex.A11 is the original reply notice dated 03.09.2013 sent by the defendant. Ex.A12 is the original rejoinder sent by plaintiff dated 21.09.2013. Ex.A13 is the acknowledgment card, dated 05.10.2013. Ex.A14 is the return cover, dated 07.10.2013. Ex.A15 is the original property tax receipt, dated 30.12.2011 in the name of the first plaintiff. Ex.A16 is the original property tax receipt, dated 27.06.2013 in the name of second plaintiff.
9. Mr.R.Manickavel, learned counsel for the plaintiffs would submit that the first plaintiff became the absolute owner of the suit property, after execution of the joint release deed by the defendants 1 and 2, on 21.07.2011 and immediately, mutation of revenue records had taken place in the name of the first plaintiff and thereafter, the first plaintiff has transferred his entire right in the suit property in favour of his wife, viz., the second plaintiff through a settlement deed dated 22.04.2013. The learned counsel would further submit that the first defendant was permitted to occupy the second floor along with the first plaintiff's mother in view of her estranged relationship with her husband and only by way of sympathy shown to his sister, the first defendant was permitted to occupy the portion and otherwise, she does not have right or title over the property. It is further contended that induction of the third defendant in the suit property was without consent and knowledge of the plaintiffs and the plaintiffs have proved their case through the oral and documentary evidence. Therefore, the plaintiffs are entitled for decree in the suit.
10. Taking into consideration, the pleadings, the evidence of P.W.1 and Exs.A1 to A16, this Court is of the view that the plaintiffs have proved their case. The issues (i) to (iii) are answered in favour of the plaintiffs. Accordingly, the Suit stands decreed with cost.
13/03/2017
r n s K.KALYANASUNDARAM, J.
r n s To The Sub Assistant Registrar, Original Side, High Court, Madras.
C.S.No.135 of 2014 13/03/2017 http://www.judis.nic.in