S.A(MD)No.206 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:28.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
S.A(MD)No.206 of 2022
and
C.M.P(MD)No.2436 of 2022
Rajathi ... Appellant/Appellant/Plaintiff
Vs.
1.Ponnaiah
2.The Superintending Engineer,
T.N.E.B., Marudupandiar Nagar,
Sivagangai Town,
Sivagangai District.
3.The Junior Engineer,
T.N.E.B., Madurai to Thondi Road,
Natarasankottai,
Sivagangai Taluk,
Sivagangai District.
4.The Assistant Engineer,
T.N.E.B., Madurai to Thondi Road,
Kalaiarkovil,
Sivagangai Taluk,
Sivagangai District. ... Respondents/Respondents/
Defendants
1/6
https://www.mhc.tn.gov.in/judis
S.A(MD)No.206 of 2022
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree passed by the Sub Court, Sivagangai in A.S.No.83
of 2014 dated 30.07.2021 upholding the judgment and decree dated
05.12.2013 passed by the District Munsif Sivagangai in O.S.No.267 of
2010.
For Petitioner : Mr.N.Tamilmani
For R1 : Mr.S.Selva Aditya
for Mr.G.Prabhu Rajadurai.
JUDGMENT
The second appeal has been instituted under Section 100 of C.P.C., questioning the concurrent findings of the trial Court and the appellate Court in the appeal Suit.
2.The suit is for permanent injunction. The suit was dismissed mainly on the ground that the petitioner has not established his right regarding the title and based on the Commissioner's Report and plan Ex.C.1 and Ex.C2. As per the Commissioner's report, the Trial Court found that the suit well is situated on the immediate East of the first defendant's property and the said well is situated almost on the boundary 2/6 https://www.mhc.tn.gov.in/judis S.A(MD)No.206 of 2022 line of S.No.293/2C, 293/2B. Though as per the said Commissioner's report, the suit Well is situated within S.No.293/2C, which is contrary to the claim of the fist defendant that the said well is situated within S.No. 293/2B, but the said well fall within the property purchased by the first defendant from the plaintiff Ex.B.1. The plaintiff has denied the sale deed Ex.B.1 and has took a stand that she has not executed the said sale deed. But the same sale deed Ex.B.1 was sent to analysis by finger print bureau along with her admitted thump impression recorded in the open Court and as per the report given by the finger print bureau, which was marked as Ex.C.3, finger print found in Ex.B.1 tallied with the finger print of the plaintiff taken up in the open Court. The trial Court proceeds by stating that insofar as finger prints are concerned, it is an established fact that no two persons will have the same finger print. Hence, the finding of the finger print bureau that the finger print found in Ex.B.1 is identical with that of the finger print of the plaintiff taken up in open Court disproves the claim of the plaintiff that she has not executed Ex.B. 1 in favour of the first defendant. Thus, the genuineness and execution of Ex.B.10 proved vide Ex.C.3 expert opinion beyond any doubt. Based 3/6 https://www.mhc.tn.gov.in/judis S.A(MD)No.206 of 2022 on the above report and the expert's opinion, the trial Court has formed an opinion that the plaintiff has not established her rights and accordingly, dismissed the relief of permanent injunction. The trial Court also confirmed the said findings, as there is no distinct and different factors to consider the grounds raised in the appeal suit. The concurrent findings of the Courts below reveals that there is no perversity or infirmity as such.
3.The learned counsel appearing on behalf of the appellant reiterated that yet another suit was instituted by the first defendant for the relief of declaration in O.S.No.72 of 2017. Further, the learned counsel for the appellant pleaded before this Court that the plaintiff is also taking steps to institute appropriate suit to establish her rights regarding the title.
4.However, it is left open to the parties to establish their rights in the manner known to law. As far as the present appeal is concerned, the suit for permanent injunction was decided based on the commissioner's 4/6 https://www.mhc.tn.gov.in/judis S.A(MD)No.206 of 2022 report and considering the expert's opinion and those findings are relatable to the suit for injunction cannot be a bar for the parties to establish their rights in an independent manner. Therefore, this Court is of the opinion that it is the right of the parties to establish the title, ownership or otherwise. However, in the present appeal, there is no sufficient evidence let in to consider the second appeal as the findings of both the trial Court and the First Appellate Court are concurrent and there is no acceptable substantial questions of law or sufficient grounds to entertain the second appeal. Accordingly, the second appeal stands dismissed. No costs. Consequently, connected C.M.P is closed.
28.03.2022 Index:Yes/No Internet:Yes/No Ns To
1. The the Sub Court, Sivagangai.
2.The District Munsif, Sivagangai.
5/6 https://www.mhc.tn.gov.in/judis S.A(MD)No.206 of 2022 S.M.SUBRAMANIAM,J.
Ns S.A(MD)No.206 of 2022 and C.M.P(MD)No.2436 of 2022 28.03.2022 6/6 https://www.mhc.tn.gov.in/judis