A.Siluvai Anthony Xavier vs Alphonsa (Died)
2021 Latest Caselaw 15764 Mad

                                                                                S.A.No.566 of 2003

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 04.08.2021

                                                      CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.No.566 of 2003
                                                      and
                                              C.M.P.No.5112 of 2003
                                                      and
                                              C.M.P.No.3763 of 2004


                   A.Siluvai Anthony Xavier             ... Plaintiff / Appellant / Appellant

                                                      -Vs-


                   1.Alphonsa (Died)
                   (Memo in USR.NO.6231, dated 22.12.2017 is recorded
                    as R1 died and R2 to R5 who recorded as Lrs of the deceased
                    R1 vide order dated 07.07.2021)
                   2.I.Sahayam
                   3.I.Belsi
                   4.I.Joseph
                   5.Mersia                    ... Defendants / Respondents / Respondents


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree in A.S.No.160 of 1999, dated
                   28.01.2003 on the file of the Sub Court, Tuticorin, confirming that of the
                   judgment and decree in O.S.No.266 of 1995, dated 10.09.1999 on the file of
                   the District Munsif Court, Srivaikuntam.
https://www.mhc.tn.gov.in/judis/


                   1/4
                                                                                   S.A.No.566 of 2003

                                         For Appellants        : Mr.Sivathilakar
                                         For R1                : died
                                         For R2 to R5          : Mr.H.Arumugam


                                                      JUDGMENT

The plaintiff in O.S.No.266 of 1995 on the file of the District Munsif

Court, Srivaikuntam, is the appellant in this second appeal.

2. The suit was one for declaration, permanent injunction and

mandatory injunction in respect of 'B' schedule properties. The suit was

dismissed vide judgment and decree dated 10.09.1999. The plaintiff filed

A.S.No.160 of 1999 before the Sub Court, Tuticorin. The first appellate

Court, by the impugned judgment and decree dated 28.01.2003, dismissed

the appeal. Challenging the same, this second appeal came to be filed.

3. This Court requested the learned counsel to undertake spot

inspection and appraise the state on ground. I am now informed that the

suit property is a narrow lane of two feet width. It also transpires that the

suit wall referred to in the pleadings is no longer in existence. It was

originally there. But then, it was later demolished and the parties have

raised separate constructions. Therefore, it is necessary that the parties

amend their pleadings with reference to the current state of affairs. It is also https://www.mhc.tn.gov.in/judis/

S.A.No.566 of 2003

necessary that an advocate commissioner is appointed afresh to measure the

site with reference to the sale deeds of both the parties. Therefore, I am of

the view that the matter has to be necessarily remanded to the file of the

trial Court. The learned counsel for the respondents does not have any

objection for me to adopt the said course of action. The impugned

judgment is set aside. The matter is remanded to the file of the trial Court.

Both the parties are at liberty to amend their pleadings and adduce further

evidence. It is also open to them to apply for appointing an advocate

commissioner afresh. The report of the earlier advocate commissioner will

is scrapped. I make it clear that all the issues are left open. This second

appeal is allowed on these terms. No costs. Consequently, connected

miscellaneous petitions are closed.

04.08.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The Sub Court, Tuticorin.

2. The District Munsif Court, Srivaikuntam.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

S.A.No.566 of 2003

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.No.566 of 2003 and C.M.P.No.5112 of 2003 and C.M.P.No.3763 of 2004

04.08.2021

https://www.mhc.tn.gov.in/judis/