Madras High Court
Amaravathi vs Murugan on 6 July, 2021
CRP(PD)No.2005 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP(PD)No.2005 of 2020
and
CMP.No.12440 of 2020
[Through Video Conferencing]
Amaravathi ... Petitioner/Plaintiff
/vs/
1.Murugan
2.Govindaraj
3.Murugan
4.Muthuraj
5.Dharuman
6.Sivaraj
7.Easwaran
8.Murugesan
9.Beeran
10.Kemban
11.Nagaraj ... Respondents/Defendants
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India seeking to set aside the fair and decreetal order dated 07.11.2019 in
I.A.No.351 of 2019 in O.S.No.126 of 2012 on the file of the learned District
Munsif, Palacode.
For Petitioner : Mr.R.Selvakumar
For Respondents : Mr.Annagandhi
*****
https://www.mhc.tn.gov.in/judis/
1/8
CRP(PD)No.2005 of 2020
ORDER
The revision petition has been filed questioning the order in I.A.No.351
of 2019 dated 07.11.2019 in O.S.No.126 of 2012 now pending on the file of
the District Munsif Court at Palacode.
2.The plaintiff is the revision petitioner herein.
3.It is seen from the cause title that he is 94 years old. It is only
appropriate that this Court disposes of the present revision petition as soon as
arguments are heard.
4.The suit had been filed against as many as 11 defendants who have all
been described as residents of Kadambanur Village in Palacode Taluk,
Dharmapuri District.
5.The plaint in O.S.No.126 of 2012 which is now pending for nearly
about 9 years and more, has been filed seeking a Judgment and Decree in the
nature of a declaration that the plaintiff alone is entitled to the property in the
suit schedule and for a permanent injunction restraining the defendants or
anybody else interfering with such possession.
https://www.mhc.tn.gov.in/judis/
CRP(PD)No.2005 of 2020
6.The property as described in the plaint, has three items. The first one is
Survey No.229/2 measuring 1.38.0 hctrs in Patta No.1053 in Jittanda Alli
Village in Palacode Taluk, Dharmapuri District. The second item as Door
Nos.1/131A, 1/199A with tiled roof which included electricity connection and
also Well in Survey No.229/3. The third item is land measuring 0.06.0 hctrs in
Survey No.234/2 in Patta No.651 in the same village. All the three items
scheduled are in the same village.
7.The suit proceeded its merry course. Written statement was filed.
Issues were framed. Parties were invited to the graze witness box. The plaintiff
took up such invitation and adduced evidence. He was also cross examined.
Defendants also adduced evidence and they were also cross examined.
Witnesses were also cross examined.
8.There was an occasion when the plaintiff to come to this Court earlier
by filing CRP Nos.206 and 207 of 2016. That was questioning an order in
I.A.No.975 of 2015 which order was dated 15.12.2015. The said Interlocutory
Application had been filed seeking appointment of an Advocate
Commissioner.
https://www.mhc.tn.gov.in/judis/
CRP(PD)No.2005 of 2020
9.The dispute was with respect to a pathway. Pursuant to the objections
raised by the defendants, an additional issue was framed namely whether the
defendant has a right over the pathway in the suit property.
10.As stated, an application had been filed seeking appointment of an
Advocate Commissioner. A learned Single Judge of this Court had interfered
with the order appointing an Advocate Commissioner, set aside the said order
and on the other hand had directed that necessary evidence should be let in and
that necessary issues may also be framed.
11.Thereafter I.A.No.351 of 2019 came to be filed by the defendant
seeking permission to frame two further issues.
12.Those issues were, whether the defendants and Kadambanur village
peoples are having pathway right in the suit property and whether the
Kadambanur village people are necessary parties to the suit.
13.The learned Judge permitted framing of such issues and aggrieved by
such an order, the plaintiff is before this Court.
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CRP(PD)No.2005 of 2020
14.A Civil Suit is an assertion of a right claimed by the plaintiff as
against the defendant. Order I Rule 3 of the Code of Civil Procedure indicates
as to whom may be joined as defendants.
15.It is provided in Sub Clause a Order I Rule 3 that any person against
whom the plaintiff alleges a cause of action to exist, may be joined as a
defendant.
16.Plaintiff in the instant case has joined about 11defendants who are all
residents of Kadambanur village and against whom he had alleged a cause and
therefore a necessity to institute the suit seeking declaration of title and
injunction.
17.The defendants have joined issue and had also filed a written
statement. In the written statement they stated that there is a pathway in the
suit property which the people of Kadambanur village use. Therefore an
additional issue was also framed stating whether the defendants have a right to
the pathway in the suit property.
https://www.mhc.tn.gov.in/judis/
CRP(PD)No.2005 of 2020
18.Extending that particular right to all the people in Kadambanur
village may not be appropriate. The issues will have to be framed based on
pleadings.
19.The Judgment on this particular aspect is AIR 2001 SC 965.
(Santhosh Hasari vs. Purushothaman). In that Judgment, Hon’ble Supreme
Court no doubt while examining the scope of a Second Appeal had examined
the nature of issues to be framed and very specifically stated that no issue can
be framed which is not pleaded and disputed by the parties to the suit.
20.Here the plaintiff has sought a declaration over the suit property.
Defendants assert their right over a path way. Necessary issue on that
particular aspect had been framed, as an additional issue. Parties are already
gone to trial.
21.I would interfere with the order passed since an additional issue had
already been framed. The defendants are protected by the additional issue
already framed namely whether the defendant have a right of pathway over the
suit property. That issue will now have to be answered by the learned Judge.
https://www.mhc.tn.gov.in/judis/
CRP(PD)No.2005 of 2020
22.In view of the above, the Civil Revision Petition is allowed. The order
in I.A.No.351 of 2019 dated 09.09.2019 is set aside. A direction given to the
Principal District Munsif at Palacode to dispose of O.S.No.126 of 2012 on or
before 31.10.2021. Consequently, the connected miscellaneous petition also
stands closed. No order as to costs.
06.07.2021
Index:Yes/No
Internet:Yes/No
ssi
To
1.The District Munsif, Palacode.
C.V.KARTHIKEYAN, J.
https://www.mhc.tn.gov.in/judis/
CRP(PD)No.2005 of 2020
ssi
CRP(PD)No.2005 of 2020
06.07.2021
https://www.mhc.tn.gov.in/judis/
