Madras High Court
Samikkan Jeyaraj ... Defendant / ... vs Nadachi on 20 July, 2021
S.A.(MD)No.345 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.345 of 2007
Samikkan Jeyaraj ... Defendant / Respondent / Appellant
-Vs-
1.Nadachi
2.Ponnu
3.Lakshmi
4.Jeyajothi
5.Rajagopal
6.Ponnulingam
7.Selvakumari ... Appellants 2 to 8 / Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the learned I Additional Sub
Judge, Tirunelveli, dated 27.06.2006 in A.S.No.236 of 2005 reversing the
judgment and decree of the Principal District Munsif, Valliyoor, dated
06.07.2005 in O.S.No.263 of 2002.
For Appellant : Mr.J.Ashok
For Respondents : Mr.S.Sivathilakar
https://www.mhc.tn.gov.in/judis/
1/4
S.A.(MD)No.345 of 2007
JUDGMENT
The defendant in O.S.No.263 of 2002 on the file of the Principal
District Munsif, Valliyoor is the appellant in this second appeal.
2. The said suit was filed by Sivalinga Nadar against the appellant
seeking the relief of permanent injunction. Later, it was amended and he
sought the relief of partition of 3/4th share in the third item of the suit
schedule. The trial Court, by the judgment and decree dated 06.07.2005
dismissed the suit. Aggrieved by the same, A.S.No.236 of 2005 was filed
before the first Additional Sub Court, Tirunelveli. By the impugned
judgment and decree dated 27.06.2006, the first appellate Court granted
preliminary decree allotting 13/30th share in the third item suit schedule in
favour of the legal heirs of the original plaintiff who had in the mean while
passed away. Aggrieved by the same, the second appeal came to be filed.
3.The second appeal was admitted on the following substantial
questions of law:-
“1. Whether the lower appellate Court is correct in reversing
the well considered judgment and decree of the trial Court without
valid reasons?
2. Whether the lower appellate Court is correct in holding that
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.345 of 2007
there existed the suit 3rd schedule property without any evidence?
3. Whether the lower appellate Court is correct in holding that
the plaintiff is entitled to 13/30th share in the suit third schedule
property under Exs.A1 and A2, overlooking the fact that the plea of
the plaintiff is his by “Doctrine of Estoppel” in view of Exhibit
A9?”
4.When the matter was taken up for final disposal, the learned
counsel appearing for the respondents submitted that the respondents may
be permitted to withdraw the suit itself with liberty to file a fresh suit
seeking the relief of declaration, demarcation and recovery of possession on
the same cause of action.
5.In view of the aforesaid submission, the impugned judgment and
decree passed by the first appellate Court is set aside. The second appeal is
allowed with the aforesaid liberty to the respondents. It goes without
saying that the fresh suit that may be instituted by the respondents herein
would be disposed of on merits and in accordance with law. No costs.
20.07.2021
Internet : Yes/No
Index : Yes/No
rmi
G.R.SWAMINATHAN.J.,
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.345 of 2007
To
1.The I Additional Sub Judge, Tirunelveli.
2.The Principal District Munsif, Valliyoor.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.345 of 2007
20.07.2021
https://www.mhc.tn.gov.in/judis/
