Madras High Court
Esakkidass vs Paranjothi on 23 December, 2021
S.A(MD)No.151 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.151 of 2011
and
M.P(MD)No.1 of 2011
1.Esakkidass
2.Radhakrishnan
3.Bahadhoor Ramiah
4.Irulapparaja
5.Kalyani ... Appellants/Appellants/Defendants
Vs.
Paranjothi ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 06.08.2010, passed
in A.S.No.15 of 2010 on the file of the Principal Sub Court, Tirunelveli,
confirming the judgment and decree, dated 15.10.2009, passed in
O.S.No.210 of 2005 on the file of the First Additional District Munsif
Court, Tirunelveli.
For Appellants : Mr.R.T.Arivukumar
for Mr.R.Manimaran
For Respondent : Mr.S.Balasubramanian
1/7
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S.A(MD)No.151 of 2011
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.210 of
2005 by the First Additional District Munsif Court, Tirunelveli and in
A.S.No.15 of 2010 by the Principal Sub Court, Tirunelveli, are being
challenged in the present Second Appeal.
2. The respondent / plaintiff has instituted a suit in O.S.No.210 of
2005, on the file of the trial Court seeking for the relief of permanent
injunction regarding the second schedule property, wherein, the
present appellants have been shown as defendants
3. The respondent / plaintiff instituted the suit seeking for
permanent injunction regarding the court-yard and the disputed
property is described as a common court-yard and claimed to have
exclusive title by virtue of Ex.A.2 and Ex.A.3. The specific case of the
respondent/plaintiff is that he is having only right of easement alone.
The trial Court decreed the suit. Against which, the appellants /
defendants filed an appeal suit in A.S.No.15 of 2019 before the first
appellate Court. The first appellate Court dismissed the appeal suit
confirming the Judgment and decree passed by the trial Court. Against
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S.A(MD)No.151 of 2011
the Judgment and decree passed by the first appellate Court, the
appellants / defendants have filed this second appeal.
4. It is the submission of the learned counsel appearing for the
appellants/defendants that both the Courts below have failed to note
the correct measurements of their property described in
Ex.B.3-registered Will in and by which, they are entitled to the
property including Southern portion of disputed court- yard area.
5. As per the suggestion of this Court, the parties have entered
into a common understanding and the appellants have filed an affidavit
and the same reads as follows:-
"1.I humbly submit that I am the third
appellant in this Second Appeal. I am well
conversant with the facts of the case.
2.I humbly submit that the common court-
yard is my front portion. As per Ex.B.1 (Will) I also
have the undivided half right over the suit schedule
property. I humbly submit that as per the Will and
also Municipal Survey report and map and as my
properties North-South measurement 14.5 feet
(5-1/4 jr;R Ksk;).
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S.A(MD)No.151 of 2011
3.I further submit that since the suit schedule
property common court yard belongs both to the
appellants and the defendant and the respondent
having undivided half share, in the common court
yard. I submit that the plaintiff/respondent should
not claim any right measuring 3 feet lying adjacent
to my house. Moreover, the respondent/plaintiff
should not claim exclusive right over the suit
schedule property (common court yard) and do not
disturb my right and enjoyment.
4.I humbly undertake that the suit schedule
property will be used as common court yard without
interference of any right of enjoyment over the
respondent/plaintiff and the same should be the
undertaking to be given by the
respondent/plaintiff."
6. In view of the above, both the parties are directed to use the
said common court-yard jointly and not to disturb the easementary
right of each other and the parties can park their two-wheelers in the
said area and nobody can claim absolute right over the suit property.
If anybody is trying to disturb the said possession, the parties are at
liberty to approach the competent authority. The tenants, if any, are
also to enjoy the said court-yard without any hindrance. Both parties to
maintain a harmonious life.
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S.A(MD)No.151 of 2011
7. With these observations, the Second Appeal is disposed of. No
costs. Consequently, connected Miscellaneous Petition is closed.
23.12.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate / litigant concerned.
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S.A(MD)No.151 of 2011
To
1.The Principal Sub Court,
Tirunelveli.
2.The First Additional District Munsif Court,
Tirunelveli.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.151 of 2011
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.151 of 2011
23.12.2021
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