Madras High Court
S.Baskar vs S.Suseela on 23 December, 2021
S.A.No.674 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.674 of 2020
and
C.M.P.No.13950 of 2020
S.Baskar,
S/o.Srinivasan,
No.81, Bagavathi Amman Koil Street,
Mettukulam Village, Periyapurdhur Post,
Katpadi Taluk, Vellore District. ... Appellant
.Vs.
G.Sundaresan (Died)
1.S.Suseela
W/o.Sundaresan
2.A.Vajra,
W/o.Annadurai
3.Annadurai
S/o.Sundaresan
All are residing at
No.81, Bagavathi Amman Koil Street,
Mettukulam Village, Periyapurdhur Post,
Katpadi Taluk, Vellore District. ... Respondents
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S.A.No.674 of 2020
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code against the Judgment and Decree in A.S.No.93 of 2019 dated
02.01.2020 on the file of the Principal Subordinate Court, Vellore against
the Judgment and Decree in O.S.No.815 of 2009 dated 10.09.2012 on the
file of the District Munsif Court, Katpadi.
For Appellant : Mr.P.Satheesh Kumar
For Respondent : Mr.M.Sathishkumar
JUDGMENT
This Second Appeal is filed challenging the Judgment and Decree
in A.S.No.93 of 2019 dated 02.01.2020, passed by the learned Principal
Subordinate Judge, Vellore, reversing the Judgment and Decree passed
in O.S.No.815 of 2009 dated 10.09.2012 passed by the learned District
District Munsif, Katpadi.
2.The Suit in O.S.No.815 of 2009 was filed by the
Appellant/Plaintiff seeking permanent injunction restraining the
Respondents/Defendants, their men and agents, servants, subordinates
etc., from interfering with the Plaintiff's peaceful possession and
enjoyment of the suit property. It is claimed by the Appellant that suit
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S.A.No.674 of 2020
property originally belonged to one Narayana Ammal, who get the
property as sreedhana. In a partition, Srinivasa Naidu father of appellant
was allotted the suit property. It was subsequently partitioned between
the Appellant and his brother Rajendran. The suit property was alloted
to the Appellant.
3.The case of the Respondent is that Respondent purchased the
suit property through sale deed with specific measurements to an extent
of 1200 sq. ft. In recognition of his title and possession, patta was also
issued to him. It is the case of the Respondent that Appellant had
encroached his property and constructed a septic tank.
4.It appears from the oral and documentary evidence that the
dispute centre around five feet, East-West land between the property of
Appellant and Respondent. Within this five feet, a septic tank was
constructed. Admittedly, the septic tank was constructed by the
Appellant. The said Suit was decreed by the trial Court, later the
judgment in favour of Plaintiff/Appellant was reversed by the first
Appellate Court. Therefore, Appellant/Plaintiff filed the Second Appeal.
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S.A.No.674 of 2020
5.This is only a Suit for bare injunction. Learned counsel for the
Respondent had not advanced his submission, despite giving
opportunities. Therefore, the matter was reserved for judgment. Then, it
was posted for clarification and when the matter was posted for
clarification, learned counsel for the Respondent appeared and both the
counsel appearing for the parties were heard.
6.It was brought to the notice of this Court that Respondent filed a
comprehensive Suit in O.S.No.47 of 2015, for declaration of title in
respect of the disputed property, mandatory injunction directing the
Defendant to remove the obstruction in 'B' schedule property and for
permanent injunction.
7.The main issue here is, in the suit property, where septic tank
lies – whether it lies within the property of the Appellant or the property
of the Respondent. It is absolutely necessary that an Advocate
Commissioner with the help of qualified Surveyor should inspect both
the properties, measure the suit properties, with the help of title deeds
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S.A.No.674 of 2020
and other revenue records and file a report. Only then, a proper
adjudication can be made in this case.
8.A joint memo was filed by the learned counsel today, wherein,
they reiterate the aforesaid facts and prayed to remand the case to be tried
along with O.S.No.47 of 2015, pending on the file of learned Principal
Sub Court, Vellore.
9.This Court on the facts and circumstances of the case, finds it
absolutely necessary for arriving at the right decision and to do complete
justice to the parties, this Suit should be tried along with the Suit in
O.S.No.47 of 2015. It is represented that the trial has not been
commenced in O.S.No.47 of 2015. To facilitate the joint trial of
O.S.No.47 of 2015 and O.S.No.815 of 2009, this Court set aside the
judgment of the Courts below in A.S.No.93 of 2019 and O.S.No.815 of
2019 and remands the case to the file of learned Principal Sub Judge,
Vellore for conducting joint trial and dispose the case in accordance with
law. Learned trial Judge is directed to appoint an Advocate
Commissioner to inspect the properties of both the parties with a
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S.A.No.674 of 2020
qualified surveyor, measure the properties, with the help of their title
deeds and revenue records and file a report. The Advocate
Commissioner's expense and other expenses to be borne by both the
parties. The evidence to be recorded in the comprehensive Suit filed in
O.S.No.47 of 2015.
10.The Appellant is directed to move a transfer application before
the learned Principal District Judge, Vellore for transfer of O.S.No.815
of 2009 on the file of the learned District Munsif, Katpadi to the file of
learned Principal Sub Judge, Vellore for trying along with O.S.No.47 of
2015. On such application being filed, learned Principal District Judge is
directed to pass orders for transfer of O.S.No.815 of 2009, pending on
the file of the District Munsif Court, Katpadi to the Court of Principal
Sub Court, Vellore.
11.Finally, there is no dispute with regard to the fact that septic
tank in the disputed area was constructed by the Appellant and is being
used by the Appellant. Till final decision is arrived, the possession and
enjoyment of the septic tank by the Appellant is protected, by way of
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S.A.No.674 of 2020
injunction against the respondents from interfering with the possession
and enjoyment of the disputed area.
12.In fine, the Second Appeal is disposed as indicated above. No
costs. Consequently, connected Miscellaneous Petition is also closed.
23.12.2021
Speaking Order/Non Speaking Order
Index : Yes / No
Internet : Yes / No
sai
To
1.The learned Principal District Judge,
Vellore.
2.The learned Principal Subordinate Court,
Vellore
3.The learned District Munsif
District Munsif Court, Katpadi.
https://www.mhc.tn.gov.in/judis
S.A.No.674 of 2020
G.CHANDRASEKHARAN, J.
sai
S.A.No.674 of 2020
and
C.M.P.No.13950 of 2020
Dated: 23.12.2021
https://www.mhc.tn.gov.in/judis
