K.Periyazhwar vs Neelammal
2021 Latest Caselaw 14247 Mad

Citation : 2021 Latest Caselaw 14247 Mad
Judgement Date : 16 July, 2021

Madras High Court

K.Periyazhwar vs Neelammal on 16 July, 2021

                                                                               S.A.No.364 of 2000

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 16.07.2021

                                                     CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.No.364 of 2000
                                                    and
                                          C.M.P.(MD)No.3226 of 2017

                   1.K.Periyazhwar

                   2.P.Indrani             ... Defendants / Cross Appellants / Appellants

                                                     -Vs-


                   1.Neelammal
                   2.M.Pandian
                   3.V.Venkataramanan
                   4.Senthilkumar                ... Plaintiffs / Respondents / Respondents


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree dated 07.12.1998 made in Cross
                   Appeal in A.S.No.64 of 1997 on the file of the Principal Subordinate Court,
                   Madurai, confirming the Judgment and decree dated 11.12.1996 made in
                   O.S.No.1055 of 1987 on the file of the District Munsif Court,
                   Tirumangalam.
                                     For Appellant          : Mr.P.T.S.Narendravasan
                                      For Respondents       : No appearance



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                                                                                 S.A.No.364 of 2000



                                                     JUDGMENT

The defendants in O.S.No.1055 of 1987 on the file of the District

Munsif Court, Tirumangalam are the appellants in this second appeal.

2. The suit was filed by one Neelammal and four others seeking three

reliefs (I) Permanent injunction restraining the defendants from anyway

interfering with plaintiffs possession in A and C schedule properties and

also from opening the plaintiffs drainage at point 'O'.

(II) Permanent injunction restraining the defendants from preventing

plaintiffs to cross along JR mentioned as 'B' Schedule.

(III) Mandatory injunction directing defendants to close holes or lets

namely 3 holes in Ground Floor and 2 in terrace, 6 Ventilation in IB portion.

3.It is not in dispute that the learned trial Judge, by judgment and

decree dated 11.12.1996 rejected prayers 1 and 3 and partly decreed the suit

by granting prayer 2 alone. Aggrieved by the same, the defendants filed

A.S.No.64 of 1997 before the Sub Court, Madurai. In the said appeal, the

plaintiffs had also filed the cross appeal. The first appellate Court by

judgment and decree dated 07.02.1998 dismissed the appeal as well as the

cross appeal. Challenging the dismissal of the cross appeal, the defendants

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S.A.No.364 of 2000

filed S.A.No.634 of 2000 and the plaintiffs filed S.A.No.176 of 1999.

Even on the previous occasions, none appeared to represent the respondents

in this second appeal. Therefore, the respondents were set exparte and the

appeal was taken up for final disposal today.

4. The learned counsel appearing for the appellants informed that

S.A.No.176 of 1999 was allowed to be dismissed for default as early as on

31.01.2014 and that it has not been restored till date. The appellants have

filed C.M.P.No.3226 of 2017 for reception of additional documents. I am

not inclined to allow the same. However, I am able to appreciate the

contention of the appellant's counsel that on account of a subsequent

development, namely, execution of the gift deed dated 25.11.2002 in favour

of the local panchayat, the grievance of the plaintiffs appears to have been

substantially redressed and that is why, they were not interested in

prosecuting the second appeal filed by them.

5. This second appeal was admitted on the following substantial

question of law:-

“Whether the plaintiffs could have maintained the prayer for permanent injunction for restraining the defendants from preventing them to cross along “JR” mentioned in the “B” schedule which includes a property for declaration of title?”

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S.A.No.364 of 2000

6. As rightly pointed out by the learned counsel appearing for the

appellants, the appellants had contested the suit claim by setting up an

independent title. The plaintiffs therefore ought to have amended the suit

prayer. The Hon'ble Supreme Court in Anathula Sudhakar Vs. P.Buchi

Reddy(dead) by legal heirs (AIR 2008 SC 2033) had categorically held that

when the title is seriously contested, the plaintiff must ask for the relief of

declaration and seek injunction only as consequential relief. In the case on

hand, the plaintiffs' houses are situated on the eastern side. The defendants'

house is located to the west of the plaintiffs' property. There is a 20 feet

panchayat road running east-west on the northern side. The defendants

claim title over a piece of vacant site on the northern side contiguous to his

existing house. There is a 10 feet road running north-south to the east of

the defendants' property. The vacant site claimed by the defendants comes

in between 20 feet east-west panchayat road and 10 feet street running

north-south. That is why, to connect both the roads, the plaintiffs sought

permanent injunction to restrain the defendants from preventing the

plaintiffs from crossing “JR” mentioned as 'B' schedule. When the specific

case of the defendants is that the vacant site that is lying between the two

roads is a private patta property and that they have also got approval from

the local body to put up construction, the plaintiffs ought to have amended

the suit prayer and sought the relief of declaration also. The defendants https://www.mhc.tn.gov.in/judis

S.A.No.364 of 2000

have not made a claim in the air. They have marked exhibits to prima facie

sustain their claim. Since the plaintiffs failed to amend the suit prayers and

since they have not sought the relief of declaration of title, the courts below

ought to have dismissed the suit as not maintainable as regards prayer No.2

also. The substantial question of law is answered in favour of the

appellants.