A.S(MD)No.242 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 20.04.2026

Pronounced on : 07.07.2026

CORAM

THE HONOURABLE MR.JUSTICE P.VADAMALAI

A.S(MD)No.242 of 2023

and

C.M.P(MD)No.13479 of 2023

S.Karuppasamy,

S/o.Sanjeevi

Door No.1/53, North Street,

Pattakulam Village,

Viluppanur Post,

Srivilliputtur Taluk,

Virudhunagar District. ...Appellant/Defendant

Vs.

G.Vethanayagi,

W/o.R.Gunasekaran,

Door No.4-2-23A,

Peraiyur Mathankovil Street,

Peraiyur Town & Taluk,

Madurai District.

Represented through her father and

Power of Attorney

S.Sethuramasubramanian,

S/o.Late.A.S.Sankaranarayanan Chettiar,

Srivilliputtur North,

Srivilliputtur Town & Taluk,

Virudhunagar District. ...Respondent/Plaintiff

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A.S(MD)No.242 of 2023

PRAYER:- This Appeal Suit is filed under Order 41 Rule 1 r/w Section 96 of

the Civil Procedure Code, to set aside the judgment and decree passed in

O.S.No.104 of 2021 on the file of the Additional District and Sessions Court,

Srivilliputtur, dated 10.04.2023.

For Appellant : Mr.M.Ashok Kumar

For Respondent : Mr.V.R.Shanmuganathan

JUDGMENT

This Appeal Suit is directed against the judgment and decree, dated

10.04.2023 passed in O.S.No.104 of 2021 on the file of the Additional District

and Sessions Court, Srivilliputtur.

2.The appellant is the defendant in O.S.No.104 of 2021 on the file of the

Additional District and Sessions Court, Srivilliputtur. The respondent is the

plaintiff in that suit.

3.The respondent/plaintiff, through her power agent, filed the suit for

declaration and recovery of possession in respect of the suit property and for

mesne profits.

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A.S(MD)No.242 of 2023

4.For the sake of convenience, the parties are referred to as per their rank

before the trial Court.

5.The brief facts are as below:

(a) The case of the plaintiff (respondent herein ) :-

The plaintiff has purchased the suit property from one S.Shanmugam by

virtue of a registered sale deed dated 18.02.2008. The plaintiff let out the suit

property to one Praveenkumar and Amaravathi by executing an othi deed for

Rs.3,00,000/-. As there was a dispute between them, the plaintiff filed a suit in

O.S.No.32 of 2015 before the Principal Sub Court, Srivilliputhur, for

redemption. On compromise, the said Praveenkumar and Amaravathi vacated

and handed over possession of the suit property to the plaintiff on 21.06.2016.

While the facts being so, the defendant created a forged rental agreement,

dated 02.05.2016 and filed a false case in O.S.No.178 of 2016 for an injunction

not to vacate the defendant except through due process of law. The said suit

was dismissed as ‘no instruction’. In fact, after getting possession on

21.06.2016, the plaintiff let out the suit property to one Kaleeswaran, who

vacated the premises on 21.02.2018. On 21.02.2018, the plaintiff found the

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A.S(MD)No.242 of 2023

lock of the door was broken down and on enquiry, the defendant, being an

advocate, trespassed into the suit premises. So, the plaintiff lodged a police

complaint, then she sent a complaint to the Special Cell of the Chief Minister

and higher police officials. As there was no proper action, the plaintiff filed

Crl.O.P(MD)No.3698 of 2018 before the Madurai Bench of Madras High

Court, in which direction was issued for action. The defendant influenced the

officials and managed not to take further action. Thereafter, the plaintiff lodged

a complaint before the Bar Council of Tamilnadu in D.C.C.No.450 of 2018.

The Bar Council enquired and passed an order dated 13.01.2020, debarring the

defendant from practicing for two years and also directed the defendant to hand

over possession of the suit property within six weeks. The defendant has also

filed a suit in O.S.No.255 of 2017 before the Principal District Munsif Court,

Srivilliputhur as against one Athinarayananpillai and his son for an injunction

not to vacate him from the house in VIP Sathuragiri Nagar, as if the defendant

is residing as a tenant thereat. There are a number of police complaints pending

against the defendant in various police stations. The defendant is not a

law-abiding man. The defendant is a trespasser on the suit property.

The plaintiff issued a legal notice, but there has been no reply from the

defendant. Therefore, the plaintiff, through her power agent, has filed the suit.

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A.S(MD)No.242 of 2023

(b)The case of the defendant:-

The plaintiff made false averments in the plaint. The defendant is a

tenant under a rental agreement, dated 02.05.2016, and he has been paying

monthly rent without any default. The plaintiff and the said Praveenkumar and

Amaravathi collusively filed the suit in O.S.No.32 of 2015 and alleged that

possession of the suit property was handed over on 21.06.2016 upon

compromise. The defendant filed a suit in O.S.No.178 of 2016 for injunction to

not evict except under due process of law. In that suit, the plaintiff filed a

petition to send the document to a handwriting expert in respect of the

defendant’s signature; later, the petition was not pressed. So, the rental

agreement is not a created one. The defendant is residing in the suit property as

a tenant without giving any trouble to anybody. The defendant is not a

trespasser. On the basis of ill advice, the plaintiff’s father, as the power agent,

has filed this vexatious suit. So, the suit is to be dismissed.

6.The trial Court framed the following issues upon the pleadings of both

parties.

(1)Whether the suit property belonged to

the plaintiff?

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A.S(MD)No.242 of 2023

(2)Whether the plaintiff is entitled to get

the decree of declaration and recovery of

possession as asked for in the suit?

(3)Whether the plaintiff is entitled to get

the decree for damages as asked for in the suit?

(4)Whether the plaintiff is entitled to get

the decree for mesne profits as asked for in the

suit?

(5) To what relief the plaintiff is asked for?

7.During the trial, the plaintiff’s power of attorney was examined as

P.W.1 and marked exhibits as Ex.A.1 to Ex.A.39. On the defendant's side, the

defendant was examined as D.W.1 and Ex.B.1 to Ex.B.3 were marked.

8.On appreciation of evidence and the submissions made on behalf of the

parties, the trial Court has held that the defendant is not a tenant and he is a

trespasser, thereby decreeing the suit in favour of the plaintiff by its judgment

and decree, dated 10.04.2023.

9.Aggrieved by the judgment and decree of the trial Court, dated

10.04.2023, the defendant has preferred this present appeal.

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10.Heard both side arguments and perused the records in this appeal suit.

11.The points for consideration in this appeal are:

1.Whether the defendant is a tenant or

trespasser?

2.Whether the judgment and decree of the

trial Court is sustainable or not?

12.Points 1 and 2:

The learned counsel for the appellant/defendant has submitted that the

plaintiff had colluded with Praveenkumar and Amaravathi and filed

O.S.No.32 of 2025 based on an alleged Othi and later stated the suit was

compromised. The defendant is a tenant of the suit property and a rental

agreement dated 02.05.2016 was executed between the parties. The alleged

Kaleeswaran was not residing in the suit property. The plaintiff has not

produced any rental agreement between the plaintiff and the said Kaleeswaran.

The defendant is running an advocate's office in the suit property. There is no

complaint against the defendant. The trial Court has decreed mainly on the

basis of the order of the Bar Council marked as Ex.A.23. The defendant is not a

trespasser and the plaintiff has not proved the same. The defendant produced a

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rental agreement as Ex.B.1 and produced electricity board receipts. Though the

plaintiff alleged that the said rental agreement was created one, the plaintiff

filed a petition for expert opinion and withdrew the same. The defendant has

marked the said petition and affidavit in I.A.No.632 of 2018 in O.S.No.178 of

2016 as Ex.B.2. So, the rental agreement is not created and it is genuine one.

The trial Court has not properly appreciated the evidence and erred in granting

decree. The appeal may be allowed.

13.Per contra, the learned counsel for the respondent/plaintiff argued that

the defendant has admitted the title of the plaintiff over the suit property and

also proved possession of the same by producing Ex.A.29 - Compromise

Order, which is dated 21.06.2016. Whereas the defendant stated that there was

a rental agreement which was executed on 02.05.2016. When the possession of

the suit property was handed over only on 21.06.2016, there is no possibility of

executing the rental agreement on 02.05.2016. The defendant has not produced

the original of the same, he has marked only a photocopy of the rental

agreement. Moreover, within 9 days, i.e., on 13.05.2016, the defendant filed

suit for an injunction against the plaintiff for not evicting except under due

process of law. The defendant has not paid any rent and has not proved the

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payment of rent to the plaintiff upon the alleged rental agreement dated

02.05.2016. Since the defendant indulged in illegal acts, the plaintiff lodged a

complaint before the police and Chief Minister Cell and also filed

Crl.O.P(MD) No.3698 of 2018 before the Madurai Bench of Madras High

Court. In spite of the order, the defendant has not corrected himself and so, the

plaintiff filed a complaint before the Bar Council of Tamil Nadu in

D.C.C.No.450 of 2018, in which an enquiry was conducted and lastly order,

dated 13.01.2020 was passed holding that the defendant is not a tenant and

directing the defendant to vacate the suit property and also debarred him from

practice. The defendant has not challenged the said order. These are all

admitted by the defendant. So, the defendant is an encroacher on the suit

property. The plaintiff clearly proved her case that the defendant is a trespasser.

The trial Court has properly appreciated the evidence and has correctly decreed

the suit and therefore, there is no need for interference with the decision of the

trial Court, and the appeal may be dismissed.

14.On perusal of appeal records, trial Court records and on consideration

of arguments advanced by both sides, the suit property belongs to the plaintiff

and there is no dispute that she is the title holder of the suit property. It is also

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an admitted fact that the defendant is an advocate. The defendant claims that

he is a tenant of the suit property under the plaintiff and produced Ex.B.1 copy

of the rental agreement. Whereas the plaintiff denies that the defendant is not a

tenant and contends that he is a trespasser by contending that on the date of the

alleged Ex.B.1, dated 02.05.2016, there was litigation between the plaintiff and

her lessees, Praveenkumar and Amaravathi, in O.S.No.32 of 2015 on the file of

Principal Sub Court, Srivilliputhur and the case was settled before the

Lok Adalat on 21.06.2016. The plaintiff has produced a copy of the plaint as

Ex.A.28 and a copy of the Lok Adalat award as Ex.A.29.

15.On perusal of records, it is clear that the defendant has not produced

the original rental agreement and also has not produced any document to show

payment of rent. The defendant, being an advocate, ought to have proven

payment of the rent regularly and in case of refusal by the landlord, he has to

deposit the rent before the appropriate Forum or at least into a bank account to

show his genuineness. But, in the case on hand, the defendant has not pleaded

so and also has not shown any payment of rent by any mode. The copy of the

alleged rental agreement dated 02.05.2016 is marked as Ex.A.7 and Ex.B.1.

From the records, it is clear that the defendant filed a suit in O.S.No.178 of

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A.S(MD)No.242 of 2023

2016 before the District Munsif-cum-Judicial Magistrate No.1, Srivilliputhur

and the suit ended in dismissal as ‘No instruction’. The copy of judgment and

decree was marked as Ex.A.36 and Ex.A.37. From Ex.A.37 decree copy, it is

very clear that the suit was filed by the defendant on 13.05.2016 against the

plaintiff seeking an injunction not to be evicted except through due process of

law, based on an alleged rental agreement dated 02.05.2016. Within 13 days,

the defendant filed the suit. No prudent man would file a suit within 13 days

from the date of the rental agreement, that too without any payment of rent or

alleging any reason for eviction. The plaintiff’s contention that the Ex.B.1

rental agreement is a fabricated one could not be brushed as there is no reason.

Because on the date of Ex.B.1 - 02.05.2016, there was litigation in O.S.No.32

of 2015 between the plaintiff and her lessees and the suit came to an end only

on 21.06.2016 and thus possession was not with the plaintiff as on 02.05.2016.

If so, there is no possibility of execution of the rental agreement and also the

defendant has falsely laid his suit in O.S.No.178 of 2016 on 13.05.2016 (before

Vacation Court as O.S.No.39 of 2016). The defendant has not produced any

other evidence to show that Ex.B.1 is a genuine one, except for electricity

receipts.

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16.The contention of the defendant that since the plaintiff filed a petition

in I.A.No.632 of 2018 in O.S.No.178 of 2016 for a handwriting expert and

later, withdrew the same, so Ex.B.1 is proven to be a genuine one cannot be

accepted. Because, the alleged Ex.B.1 came to be made during the pendency

of a suit in O.S.No.32 of 2015 between the plaintiff and her lessee.

The defendant has not disproved by adducing sufficient evidence except for his

version of collusion. Moreover, when it is alleged that Ex.B.1 is said to have

been fabricated, it is the duty of the defendant to prove the same as genuine

one. A perusal of Ex.B.1, it is found that there is no witness signature, even

though it is claimed to be an agreement between two parties. The defendant as

D.W.1 has deposed in his cross examination that ,e;j jhth tHf;F

“

brhj;jpw;F thlif xg;ge;jk; 02.05.2016y; nghl;nld;. ,e;j thlif

xg;ge;jk; ahuhy; jl;lr;R bra;ag;gl;lJ vd;w tpguk; ,y;iy vd;why;

rhpjhd;. me;j xg;ge;jj;ij thjpjhd; jl;lr;R bra;J bfhz;L te;jhh;.

thjp jhd; jl;lr;Rbra;J bfhz;L te;jhh; vd;w tpguj;ij vjph;tHf;Fiu

kw;Wk; Kjy; tprhuizapy; Fwpg;gpl;L brhy;ytpy;yiy vd;why; rhpjhd;

…

me;j xg;ge;jj;jpy; rhl;rpfs; ahUk; ifbahg;gk; nghltpy;iy fhuzk;

thjp rhl;rpfs; ntz;lhk; vd;W brhd;dhh;.......thjpaplk; thlif

brYj;jpaij fhl;l Mtzq;fs; jhf;fy; bra;atpy;iy vd;why;

rhpjhd;... .

”

From the above evidence, it is clear that no witness signed the

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agreement and there is no document to show the payment of rent to the

plaintiff. The defendant has not produced any sufficient evidence to prove that

Ex.B.1 is a genuine one.

17.Further perusal of records, it is averred by the plaintiff that since the

defendant encroached upon the suit property by illegal means, she lodged a

police complaint, sent a petition to the Special Cell of the Chief Minister and to

higher police officials and lastly filed Crl.O.P(MD)No.3698 of 2018 before the

Madurai Bench of Madras High Court. Since the defendant, is an advocate, the

plaintiff could not get immediate relief, so she lodged a complaint before the

Disciplinary Committee of the Tamil Nadu Bar Council for the illegal

trespassing of the defendant over the suit property. The complaint was taken

for enquiry as D.C.C.No.450 of 2018 and an enquiry was conducted against the

defendant. After enquiry, the Disciplinary Committee has passed an order,

dated 13.01.2020, debarring the defendant from practice for two years and

directing him to vacate the suit property. The said order copy is marked as

Ex.A.23. It is the case of the plaintiff that the defendant has not challenged the

said order before the appropriate Forum according to law. This was not

objected to by the defendant. So, Ex.A.23 became final. From perusal of

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Ex.A.23, it is clear that the defendant, who is the respondent there in

D.C.C.No.450 of 2018, has deposed as R.W.1 and he admitted that he had not

resided in the suit property when a suit notice for dishonor of his cheque was

sent to him in case No.29 of 2017. So, the plaintiff’s case that the defendant is

not a tenant and is a trespasser has some force.

18.From the perusal of records, it is very clear that the plaintiff sent a

legal notice to the defendant and it was received by the defendant. Copy of

legal notice and acknowledgement cards are marked as Ex.A.33 and Ex.A.34.

It is a clear admission of the defendant that he has not sent any reply notice to

the plaintiff against the Ex.A.33 legal notice. A perusal of evidence of D.W.1 it

is clear admission that vdf;F mDg;gg;gl;l tHf;F mwptpg;gpy; ehd;

“

Mf;fpukpg;ghsh; vd;W brhy;yp mjdhy; tPl;il fhyp bra;antz;Lk;

vd;Wk; Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;. Mf;fpukpg;ghsh; vd;W

brhd;djhy; jhd; ehd; gjpy; mwptpg;g[ mDg;gtpy;iy.

”

So, it is proved that

the defendant has not sent any reply notice. The defendant is an advocate, so he

has to comply with all the requirements of provisions of law. It is a settled

position by the Hon’ble Supreme Court and this Court that the non-sending of

a reply legal notice by the defendant is fatal to his defense.

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19.The Division Bench of Principal Seat of this Court has held in its

order, dated 06.12.2023 in A.S.No.693 of 2018 in the case of

T.Mohankumar /v/ Ashok Kumar that “therefore, a reading of the

cross-examination of P.W.1, in our opinion, would show that not even a single

utterance of him in his proof affidavit and the plaint is true. Undoubtedly, the

conduct of the defendant in not lodging a police complaint and not sending a

reply to the legal notice militates against him.” The senior brother Judge of the

principal Seat of this Court held in his judgment, dated 19.01.2021 passed in

S.A.No.967 of 2008 in Sundaram /v/ Gowri Shankar case clearly held that

“the non-sending of the reply by the defendant to the legal notice sent by the

plaintiff is fatal to the defence set out by the defendant”. So, this Court is of

the considered view that the defendant is not a tenant and he is an encroacher

on the suit property.

20.As discussed above, the plaintiff has clearly proved her case that the

defendant is not a tenant and he is a trespasser and the trial Court has properly

appreciated the evidence of both sides and correctly passed a decree.

Considering the above facts and circumstances, the judgment and decree of the

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trial court need not warrant interference. The points are answered accordingly

against the appellant. Thus, this appeal suit fails.

21. In the result,

(i)This Appeal Suit is dismissed with costs.

(ii)The judgment and decree dated 10.04.2023 passed in

O.S.No.104 of 2021 on the file of the Additional District and Sessions Court,

Srivilliputtur are confirmed.

(iii) Consequently, the connected Civil Miscellaneous Petition is closed.

07.07.2026

NCC : Yes / No

Internet : Yes / No

Index : Yes / No

VSD

To

1.The Additional District and Sessions Court,

Srivilliputtur.

2.The Record Keeper,

Vernacular Records,

Madurai Bench of Madras High Court,

Madurai.

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A.S(MD)No.242 of 2023

P.VADAMALAI, J.

VSD

Pre-Delivery Judgment made in

A.S(MD)No.242 of 2023

and

C.M.P(MD)No.13479 of 2023

07.07.2026

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