S.A.Sengoda Gounder (Died) vs Madhaiyan
2021 Latest Caselaw 16156 Mad

                                                                              S.A.No.325 of 2016

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 09.08.2021

                                                   CORAM:

                                  THE HONOURABLE MR.JUSTICE M.GOVINDARAJ

                                               S.A.No.325 of 2016
                                                       &
                                             C.M.P.No.6086 of 2016

                1. S.A.Sengoda Gounder (died)

                2.Ramasundaram

                3.Madhaiyan

                4.Ayyannan

                5. Sundariammal
                W/o Late S.A.Sengoda Gounder
                brought as legal heir of A1 vide
                Court order dated 01.07.2021 made in
                C.M.P.No.1300/2017                                           ... Appellants

                                                      Vs.

                1.Madhaiyan

                2.Murugesan

                3.Thangaraj

                4.Narayanan                                     ... Respondents/Defendants



                1/9
https://www.mhc.tn.gov.in/judis
                                                                                     S.A.No.325 of 2016



                PRAYER: The Second Appeal has been filed under Section 100 of the Civil
                Procedure Code to set aside the decree and judgment dated 14.10.2015 made in
                A.S.No.31 of 2014 on the file of the learned Sub Court, Bhavanai confirming
                the judgment and decree dated 28.02.2014 made in O.S.No.128 of 2012 on the
                file of the learned Principal District Munsif Court, Bhavani


                                          For Appellants     : Mr.N.Manokaran
                                          For Respondents    : Mr.S.Katithamarai Kumaran
                                                            -----

                                                    JUDGMENT

Aggrieved over the concurrent findings of the Court below, the

unsuccessful plaintiffs have preferred the above Second Appeal. The Second

Appeal was admitted on the following substantial questions of law:

Heard. This Second Appeal is admitted

onthe following substantial questions of law:

a. Whether the Courts below erred

indismissing the suit for declaration and permanent

injunction in respect of the entire extent covered

under Ex.A1 to Ex.A4 and Ex.A16, in the absence of

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

any dispute or denial of title over the suit properties

at the instance of the defendants?

b. Whether the Courts below are correct in

law, in dismissing the suit on the ground of

insignificant variation in the extent stated in the suit

schedule and the title deeds marked as Ex.A1 to

Ex.A6, Ex.A4, revenue records marked as Ex.A8 to

Ex.A11 and the Commissioner's Report and plan

marked as Ex.C1 to Ex.C3, particularly in the absence

of any dispute as to the identity of the suit

properties?

c. Whether the judgments of the Courts below are

perverse for dismissing the suit in its entirety by

viewing the variations in the extent conveyed and the

extent available on land, especially when the Courts

are empowered to grant lessor relief in exercise of

the powers under Order 7 Rule 7 and Sec.151 CPC?

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

2.The short facts leading to the suit are as follows:

According to the plaintiffs they derived title to the properties in Old

Survey No.18 by virtue of Exs.A1 to A4. The respondents/defendants were

attempting to tresspass the same and therefore they filed a suit for declaration

and injunction. During the pendency of the suit, the plaintiffs filed an

application for appointment of Advocate Commissioner and the Advocate

Commissioner after inspection filed a report along with plan on 06.08.2012

which were marked as Exs.C.1 to C.3. The Trial Court after going through the

elaborate evidence arrived at a finding that what is available in the old survey

number was given Re-survey No.699/1 to 8 shows that there are only 9.43 and

½ acres on ground. The Trial Court has further found that the plaintiffs have

filed O.S.No.1484 of 1974 against one Parasurama Gounder and got a decree of

title and also filed O.S.No.243 of 1999 against the Government in which also

they obtained a decree. Even after having obtained a declaration of title in the

previous rounds of litigation they are not entitled to maintain a third round of

litigation with regard to declaration of title. Further, Trial Court has

categorically found that the Commissioner has filed the report on 06.08.2012

itself showing some encroachment in the property. Inspite of the same, the

plaintiffs have not taken any steps for amending the plaint for recovery of

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

possession and continued the suit as per the available pleadings. Therefore, the

suit was dismissed as there is no clarity in the extent of properties and relief

against the strangers. On appeal, the Lower Appellate Court also confirmed the

decreed passed by the Trial Court.

3. According to the appellants/plaintiffs as per Exs.A1 to A4 and

A.16, they have clearly proved their title to an extent of 9.26 acres. When they

have proved their title, denial of relief of declaration is not sustainable. Further

when the defendants do not claim any title there is no dispute as to the identity

of the suit property, in view of the report of the Commissioner filed as Exs.C1 to

C3. Taking that into consideration, the Trial Court ought to have granted the

relief. Even otherwise under Or.7, R.7 r/w Sec.151 of C.P.C the Trial Court

must have granted the relief exercising the inherent powers. Therefore, the

decree and judgment passed by the Court below is liable to be set aside.

4. I have considered the submissions.

5. As found by the Court below the corresponding Re-survey number

for old S.No.18 is R.S.No.699/1 to 8. As per the Government records what is

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

available in R.S.No.699/1 to 8 is 9.43 1/2 acres. Whereas the plaint schedule

shows the extent of land in R.S.No.699/1 to 8 as 9.74 acres. There is no

explanation on the side of the plaintiffs to the excess land claimed by them.

Even though the plaintiffs claim 0.54 cents as per Ex.A.16, there is absolutely

no pleading. Therefore, as per the available extent, the Trial Court had

proceeded and disposed of the suit. It is already noted that as per

O.S.No.1484/1974 and O.S.No.243/1999 the title to the property as per Exs.A1

to A4 and A16 were already declared in favour of the plaintiffs. The defendants

herein do not also claim any title against the plaintiffs and therefore no further

declaratory relief be granted. Secondly, the Commissioner's report was came to

be filed as early as on 2012, but the plaintiffs have proceeded to contest the case

against four individuals for the relief of injunction and they have not chosen to

amend the relief into recovery of possession or delivery of possession. It is to be

noted that the suit was filed against four individuals with the cause of action

that they are attempting to tresspass into the suit. Whereas the Commissioner's

report comes with a finding that there exists a platform of a temple. If it is so,

there is no description or pleading that these four defendants are representing

the temple or the property was encroached by the temple. In the absence of any

clear pleading for specific relief, the Court cannot mould or grant relief in favour

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

of the plaintiffs. The plaintiffs should have been vigilant in asking for a specific

relief. It is also not the case of the plaintiffs that the encroachment by the

defendants were admitted in the written statement. On the other hand it leads to

other factual disputes of existence of a school and temple in the excess extent

beyond R.S.No.699/1 to 8. In such circumstances, the Court below has rightly

dismissed the suit for want of proper description of the property and

identification of the property. Therefore, it is very clear that as claimed by the

appellants/plaintiffs in the suit, the total extent of land available is not 9.76

acres but 9.43 ½ acres only in R.S.No.699/1 to 8. Secondly, the property is not

clearly described and that it is not filed against proper persons for appropriate

relief. In that event, the claim of the plaintiffs that the relief should have been

granted against the Commissioner's report cannot be granted as the

encroachment was allegedly made by the temple and not by these individuals.

6. Therefore, in the suit against the strangers the Court cannot mould

the relief or grant the relief under Or.7 R.7 C.P.C. The further contention that

the Trial Court should have granted the relief of declaration is concerned, it has

already been granted by two decrees of the Civil Court, therefore the repeated

declaration is unwarranted. For these reasons, all the three questions of law

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

framed during the admission of the Second Appeal is answered in negative. The

Second Appeal is dismissed. No costs. Consequently, connected miscellaneous

petition is closed.

09.08.2021.

Internet:Yes

Index:Yes/No

To

1. The Sub Judge, Bhavanai

2. The Principal District Munsif, Bhavani

M. GOVINDARAJ, J.

kpr

https://www.mhc.tn.gov.in/judis S.A.No.325 of 2016

S.A.No.325 of 2016 & C.M.P.No.6086 of 2016

09.08.2021

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