Madras High Court
Kumaresan vs S. Muthulakshmi on 20 January, 2021
Rev.Aplc(Md).No.232 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.01.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
Rev. Aplc(Md)No. 232 of 2019
in
S.A.(MD) No.39 of 2015
Kumaresan
S/o. Pooliah Thevar ... Petitioner
Vs.
S. Muthulakshmi
W/o. Shanmuga Thevar ... Respondent
Prayer: Review Application filed under Order 47 Rule 1 of CPC to
review the judgment and decree passed in S.A.(MD) No.39 of 2015 dated
28.11.2018 on the file of this Hon'ble Court by allowing the review
petition.
For Petitioner : Mr. S. Kumar
For Respondent : Mr. Ananth C. Rajesh
JUDGMENT
Seeking to review the judgment and decree dated 28.11.2018
passed in S.A.(MD) No.39 of 2015, the Review Application has come to
be laid by the petitioner.
2. The SA(MD) No.39 of 2015 has been preferred challenging
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Rev.Aplc(Md).No.232 of 2019
the judgment and decree dated 10.09.2014 passed in A.S. No.96 of 2012,
on the file of the Additional Subordinate Court, Tirunelveli, confirming
the judgment and decree dated 17.07.2012, passed in O.S. No.165 of
2010, on the file of the Principal District Munsif Court, Tirunelveli.
3. The review applicant is the appellant in the abovesaid
second appeal and the defendant in the trial court. The
respondent/plaintiff has laid the suit for the relief of Permanent
Injunction.
4. Considering the materials placed on record, it has been held
by the courts below that the suit property is the natham poramboke
belonging to the Government. Now, according to the plaintiff, the suit
property has been in her possession and enjoyment and she would go to
plead that the suit property has been in the possession and enjoyment of
her father-in-law and after his demise, her husband and thereafter, her
husband had executed the settlement deed qua the suit property in her
favour on 14.05.2007. However, the suit property admittedly being the
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Rev.Aplc(Md).No.232 of 2019
natham poramboke belonging to the Government, the abovesaid plea of
the settlement deed put forth by the plaintiff did not find acceptance by
this Court in the second appeal. However, the plaintiff has laid the suit
claiming the relief of permanent injunction on the footing that the
defendant without any entitlement is endeavouring to disturb her
possession and enjoyment of the same. To sustain her claim of
possession and enjoyment, the plaintiff would also project the building
permit issued to her by the panchayat marked as Ex.A3 on 18.08.2008.
Therefore, the courts below have rightly concluded that, on a perusal of
Ex.A3 coupled with the evidence of the Panchayat Assistant examined as
D.W.2, inasmuch as the suit property has been in the possession and
enjoyment of the plaintiff, the building permit had been issued in her
favour under Ex.A3. As above pointed out, the suit property being the
natham poramboke land, according to the plaintiff, pending suit she had
also been granted the patta qua the suit property marked as Ex.A4.
Though Ex.A4 had come to be issued during the pendency of the suit, it
has been held by all the courts that the requisition for the grant of patta
has been made by the plaintiff during the year 2009 itself, after
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Rev.Aplc(Md).No.232 of 2019
considering that only, during the course of the suit, the patta had come to
be issued in her favour. Therefore, considering the possession and
enjoyment of the suit property by the plaintiff, it was held that the
Government had also decided to grant the patta in favour of the plaintiff
and therefore, proceeded to hold that Ex.A4 patta would also justify the
claim of the plaintiff that she is in the possession and enjoyment of the
suit property as put forth by her.
5. The only contention raised by the defendant is that, he has
been using the suit property as an access to reach his property lying on
the western side. In this connection, he is mainly relied upon the
panchayat resolution dated 15.08.2008 marked as Ex.X1. However,
though it is found that by way of the abovesaid resolution, the panchayat
had held that the suit property should be used for public purpose,
however, subsequent to the same, the same panchayat had proceeded to
issue the building permit in favour of the plaintiff on 18.08.2008 under
Ex.A3. Therefore, the courts have determined that Ex.X1 would not, in
any manner, undermine or affect the plaintiff's case and inasmuch as the
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Rev.Aplc(Md).No.232 of 2019
plaintiff has been in the possession and enjoyment of the suit property
over a long period of time, as put forth by her, recognising her possession
and enjoyment, the building permit had been issued in her favour and
also the patta had also been issued by the Government. Considering the
abovesaid factors, the courts below as well as this Court in the second
appeal have upheld the possession and enjoyment of the plaintiff qua the
suit property.
6. Inasmuch as the Government is not endeavouring to disturb
the plaintiff's possession and enjoyment of the suit property and it is only
the defendant who had endeavoured to disturb her possession,
accordingly, it was noted that the plaintiff is not necessitated to implead
the Government as a party in the proceedings. Considering the fact that
the suit property is the Government property and also the patta had been
issued in favour of the plaintiff vide Ex.A4 and the plaintiff having also
established her possession and enjoyment of the suit property and the
defendant having failed to establish his claim of possession and
enjoyment of the suit property, all put together, the courts have held that
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Rev.Aplc(Md).No.232 of 2019
there is no necessity on the part of the plaintiff to seek the relief of
declaration of the suit property.
7. Considering the abovesaid factors, it is noted that the courts
below as well as this Court in the second appeal by considering all the
points raised by the parties in all aspects, had rightly proceeded to uphold
the plaintiff's case.
8. In the Review Application, the defendant has only taken the
pleas already raised by him that the courts have failed to consider the
resolution of the panchayat marked as Ex.X1. However, as above
discussed, when the courts below as well as this Court in the second
appeal have considered the effect of Ex.X1 resolution of the panchayat
viz-a-viz the building permit given to the plaintiff subsequent thereto
under Ex.A3 and also the issuance of patta in favour of the plaintiff by
the Government under Ex.A4, all put together, came to the conclusion
that it is only the plaintiff who has been in the possession and enjoyment
of the suit property, therefore, the contention of the review applicant that
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Rev.Aplc(Md).No.232 of 2019
the resolution of the panchayat marked as Ex.X1 has not been considered
by the courts below as well as this Court in this second appeal merits no
acceptance.
9. By way of the review application, the defendant cannot be
allowed to agitate the points, which were already put forth by him,
considered and decided by the courts. No sufficient reason has been
projected by the applicant to review the judgment in question and also
the review applicant has not placed any material to show that the
impugned judgment is bad on account of the mistake or error apparent on
the face of the record. When the contention raised by him in the review
application has already been considered and determined by the courts
including this Court in the second appeal, it is evident that none of the
parameters for entertaining the review application as provided under
Order 47 Rule(1) CPC had been established by the review applicant and
in such view of the matter, the review application does not merit
acceptance.
10. In conclusion, the Review Application is dismissed with
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Rev.Aplc(Md).No.232 of 2019
costs. Consequently connected miscellaneous petition, if any, is closed.
20.01.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
http://www.judis.nic.in
Rev.Aplc(Md).No.232 of 2019
T. RAVINDRAN, J.
bga
Rev. Aplc(Md)No. 232 of 2019
in
S.A.(MD) No.39 of 2015
20.01.2021
http://www.judis.nic.in
