Madras High Court
Jeyaraj vs Kanniyan on 13 July, 2021
S.A.No.622 of 2008 &
M.P.No.1 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.622 of 2008
and
M.P.No.1 of 2008
Jeyaraj ...Appellant/Respondent/Plaintiff
Vs.
1. Kanniyan
2. Mariappan ...Respondents/Appellants/Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 09.10.2007
made in A.S.No.18 of 2007 on the file of the Court of the Subordinate
Judge of Mettur in reversing the well considered Judgment and Decree
dated 27.04.2007 made in O.S.No.142 of 2003 on the file of the Court
of the District Munsif – cum – Judicial Magistrate, Omalur.
For Appellant : Mr.V.S.Sivasundaram
For Respondents : Mrs.R.Meenal
1/9
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
JUDGMENT
The Second Appeal is filed by the plaintiff challenging the
Judgment and Decree in A.S.No.18 of 2007 of the learned Subordinate
Judge, Mettur, reversing the Judgment and Decree of the learned
District Munsif cum Judicial Magistrate, Omalur in O.S.No.142 of
2003.
2. The Appellant / plaintiff's case is that he has purchased the
property under a registered Sale Deed, dated 09.04.2001 and from the
date of sale, he has been in possession and enjoyment of the suit
property. He had obtained a patta dated 30.03.2002 in respect of the
suit property. It is his case that the defendants who are neighbours,
residing on the northern side, are obstructing the enjoyment of the
property since he had refused to sell the suit property to them. The suit
property has been described as follows:
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
“nryk; nkw;Fupo. jhuk';fyk;rg;upo. mkhdp khuk';fyk; fpuhk
ru;nt 85-16 gp4/ g[Pir bcwf;lu; 0/01/0?f;F jP/0/08 ,jpy;
fpuak; bra;a[k; ghfj;Jf;F brf;Fge;jp?
jhuk';fyk; nghFk; nuhl;Lf;Fk; nkw;F. ,nj bek;gupy; gHdpf;F fpuak;
bra;ak[ ; ghfj;Jf;F tlf;F. mk;khrp tPlL
; jlj;Jf;Fk; fpHf;F cd;
fhypkid epyj;Jf;F bjw;F. ,jd;kj;jpapy; fpHnky; ,Ug[wKk; 41 mo.
bjd;tly; ,Ug[uKk; 12\ mo ,e;j mst[ss
; 512\ rJuo cs;s
kidepyk; g{uht[k;. fpuaghfj;jpy; fpHnky; ,Ug[wKk; 22\ mo
bjd;gly; ,Ug[wKk; 12\ mo ,e;jst[ss
; 278/1-8 rJuoapy;
fl;oapUf;Fk; ,j;Jld; ,izf;fg;gl;oUf;Fk; 1V/ gotj;jpy; fz;lgo
fl;lg;gl;L k';fS:u; XL nka;e;j 4?129-1 cs;s gpy;iy tPL xd;Wk;
mo epyk; nky;fl;Lf;nfhg;gf[ s; cs;glt[k; ,jpy; cs;s fjt[ epyt[
$ij xd;Wk; jyf;fil gHf;filfs; rfpjk; jhd; jhthf;F
rk;ke;jg;gl;lJ/
kw;Wk; tPl;ow;F tlf;nf nghl;Ls;s M!;gl;lhRld; Toa
brl; kw;Wk; fhypkida[k; jhd; ,e;j jhthf;F cl;gl;lJ/ ”
3. The respondents / defendants have filed a written statement
interalia contending that between the plaintiff's property purchased
under Ex.A1 and the defendants' property, there exists a lane/ pathway
which was a public pathway, the plaintiff has extended an asbestos
sheet into the suit pathway and the minute he was asked to remove the
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
same, the plaintiff has come forward with the suit. The suit itself is a
oblique attempt to gain an ownership over the encroached portion. The
trial Court decreed the suit which was reversed by the appellate Court.
4. Heard the learned counsel appearing on either side and
perused the records.
5. Mr.V.S.Sivasundaram, learned counsel appearing on behalf
of the appellant would submit that as per his document, there is no
carttrack pathway existing beyond the suit property and this fact has
been admitted by PW 3, his vendor as well as PW 5, the Village
Administrative Officer. He would also submit that he has filed Ex.P5
showing his possession of the property. He would further submit that
even assuming that he is encroaching , he can be evicted only by due
process of law.
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
6. Mrs.Meenal, learned counsel appearing on behalf of the
respondents/defendants would contend that the appellant/plaintiff had
not filed his parent document which would clearly describe the
property purchased by the Appellant's Vendor. This document would
really prove the existence of the pathway. However, the
respondents/defendants have filed the same as Ex.B1. She would
submit that a perusal of Ex.B1 would clearly demonstrate that on the
Northern side of the suit property, there is a pathway in existence. This
is cleverly omitted in the Sale Deed Ex.A1 and the intent was to
encroach into the pathway even at the time of purchasing the property.
That apart in the description of the suit property, the plaintiff has
cleverly inserted an asbestos roofed sheet in the vacant site which is not
available in Ex.A1, description. She would submit that she would have
no objection if an injunction has been granted in respect of the property
which is the property sold under Ex.B1 to the plaintiff's vendor and
which is the document under which the Appellant traces his title.
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
7. The case of the plaintiff/appellant is that he is the owner of
the property by virtue of Ex.A1. Under Ex.A1, the following property
has been sold to the plaintiff:
“nryk; nkw;F upo. jhuk';fyk; rg.;upo. mkhdp khuk';fyk;
fpuhk ru;nt 85-16 gp4/ g[Pir bcwf;lu; 0/01/0?f;F jP/0/08 ,jpy;
fpuak; bra;a[k; ghfj;Jf;F brf;Fge;jp?
jhuk';fyk; nghFk; nuhl;Lf;Fk; ?nkw;F
,nj bek;gupy; tHdpfF
; fpuak; bra;ak[ ;
ghfj;Jf;F ?tlf;F.
mk;khrp tPl;L jlj;Jf;Fk; ?fpHf;F
cd; fhypkid epyj;Jf;F ?bjw;F
,jd; kj;jpapy; fpHnkypy; ,Ug[wKk; 41 mo. bjd;tly; ,Ug[uKk; 12\
mo ,e;j mst[ss
; 512\ rJuo cs;s kidepyk; g{uht[k;.
fpuaghfj;jpy; fpHnkypy; ,Ug[wKk; 22\ mo bjd;tlypy; ,Ug[wKk;
12\ mo ,e;jst[ss
; 278/1-8 rJuoapy; fl;oapUf;Fk; ,j;Jld;
,izf;fg;gl;oUf;Fk; 1V/ gotj;jpy; fz;lgo fl;lg;gl;L k';fS:u; XL
nka;e;j 4?129-1 cs;s gpy;iy tPL xd;Wk; mo epyk;
nky;fl;Lf;nfhg;gf[ s; cs;glt[k; ,jpy; cs;s fjt[ epyt[ $ij xd;Wk;
jyf;fil g[Hf;filfs; rfpjk; jhd; fpuaj;Jf;F rk;ke;jg;gl;lJ/ fpua
brhj;J XkYhu; a{dpaDf;F rk;ke;jg;gl;lJ.
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
8. The Sale Deed would clearly recite that the property in
question had been purchased by his vendor, Perumal under the Sale
Deed of the year 1944, which is nothing but Ex.B1. Ex.B1 would
describe the property as follows:
“ brhj;J tpguk;: nryk; o XkYhu; rg;o mkhdp khuk';fyk;
fpuhkj;jpy; ehd; Fo ,Ue;J tUk; tPlL
; f;F brf;Fge;jp kd;dhjd;
tPlo; w;Fk; tlf;F ghijf;Fk; nkw;F uhkha; tPl;Lf;Fk; fpHf;F re;J
jlj;jpw;Fk; bjw;fF
; ,jd; kj;jpapy; fpHnky; KHk; 17 bjd;tly;KHk;
18 ,e;j mst[ss
; epyj;jpy; fl;oapUf;Fk; K:d;W m';fz Tiu tPL 1
fjt[ epyt[ $ij 1k; kw;w jHf;fil gpHf;fil rfpjKk; fpuaj;Jf;F
rk;ke;jg;gl;lJ/”
9. The learned counsel for the defendants has stated that she has
no objection to an injunction being granted with reference to the
property described under Ex.A1 and not the suit property.
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
10. Recording the same, the Judgment and Decree of the
Appellate Court is set aside and the decree of the trial Court is modified
to the extent of the injunction being restricted not to the suit property,
but to the property as described in Ex.A1.
11. With the above observation, this Second Appeal is allowed
to the extent above. No costs. Consequently, connected miscellaneous
petition is closed.
13.07.2021
Index : Yes/No
Speaking Order : Yes / No
vum
To
1. The Subordinate Judge,
Mettur
2. The District Munsif – cum – Judicial Magistrate,
Omalur
3. The Section Officer,
VR Section, Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
S.A.No.622 of 2008 &
M.P.No.1 of 2008
P.T. ASHA, J,
vum
S.A.No.622 of 2008
and M.P.No.1 of 2008
13.07.2021
https://www.mhc.tn.gov.in/judis/
