Rama vs Sukumaran
2021 Latest Caselaw 11474 Mad

                                                            1          S.A.(MD)NO.337 OF 2021

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 08.06.2021

                                                    CORAM

                        THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                           S.A.(MD)No.337 of 2021 and
                                           C.M.P.(MD)No.4538 of 2021



                     Rama                                       ... Appellant/Appellant/
                                                                     Defendant

                                                      Vs.


                     Sukumaran                              ... Respondent/Respondent/
                                                                  Plaintiff



                                   Prayer: Second appeal filed under Section 100 of
                     C.P.C., against the Judgment and Decree dated 23.03.2020
                     passed in A.S.No.27 of 2018 on the file of the Principal
                     Subordinate Court, Srivilliputhur, confirming the Judgment
                     and Decree dated 07.02.2018 passed in O.S.No.319 of 2011 on
                     the file of the Additional District Munsif, Srivilliputhur.


                                   For Appellant   : Mr.R.Karunanidhi

                                                     ***




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                                                            2        S.A.(MD)NO.337 OF 2021

                                                JUDGMENT

The defendant in O.S.No.319 of 2011 on the file of the

Additional District Munsif Court, Srivilliputhur is the appellant

in this second appeal.

2. The respondent herein filed the said suit seeking

the relief of declaration and also permanent injunction and

also mandatory injunction in respect of the third suit schedule

property. The case of the plaintiff is that the suit schedule

property was allotted to his share in a partition made in the

year 2008. The partition deed has been marked as Ex.A.2. The

plaintiff retained the first suit schedule property. He plotted

out the second suit schedule property which is lying to the

east of the first suit schedule property. The third suit schedule

property is running between first and second suit schedule

property. The appellant herein had purchased all the plots

comprising the second suit schedule property. The allegation

of the plaintiff is that even though the third suit property was

to be maintained only as a common pathway, the defendant

had chosen to completely occupy the same for her exclusive

usage and enjoyment. That had necessitated the filing of the

instant suit.

https://www.mhc.tn.gov.in/judis/

3 S.A.(MD)NO.337 OF 2021

3. The plaintiff examined himself as P.W.1 and Ex.A.1

to Ex.A.7 were marked. The defendant examined herself as

D.W.1. No document was marked on her side. An Advocate

Commissioner was appointed to note down the physical

features and the report was marked as Court Exhibit 1. Plan

Sketch was also marked as Court Exhibit 2.

4. The learned trial Court after considering the

evidence on record, clearly gave a finding that the third suit

schedule property 20 feet road was shown as the boundary in

the sale deeds executed by the plaintiff in favour of the

defendant. It has also been clearly mentioned in the sale deeds

that this 20 feet road was to be maintained as a common

pathway. Therefore, the plaintiff had clearly established his

case. The suit was decreed by the Judgment and Decree dated

07.02.2018. Challenging the same, the appellant herein filed

A.S.No.27 of 2018 before the Principal Subordinate Court,

Srivilliputhur. The first appellate Court also after

re-appreciating the evidence on record, confirmed the

Judgment and Decree of the trial Court. Challenging the same,

this second appeal has been filed.

https://www.mhc.tn.gov.in/judis/

4 S.A.(MD)NO.337 OF 2021

5. Though the learned counsel appearing for the

appellant reiterated all the grounds set out in the

memorandum of grounds, I find that no substantial question of

law arises for consideration. In fact one of the substantial

questions of law framed by the appellant is whether the

Courts below had correctly appreciated the facts on law. This

cannot be a substantial question of law at all. The entire case

of the appellant turns on facts and the Courts below have

correctly inferred after carefully scrutinising the sale deeds

executed by the plaintiff in favour of the defendant. No case

for interference has been made out.

6. This second appeal is dismissed. No costs.

Consequently, connected miscellaneous petition is closed.

                                                                                       08.06.2021

                     Index    : Yes / No
                     Internet : Yes/ No
                     PMU

Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

https://www.mhc.tn.gov.in/judis/

5 S.A.(MD)NO.337 OF 2021

To:

1. The Principal Subordinate Judge, Srivilliputhur.

2. The Additional District Munsif, Srivilliputhur.

3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

6 S.A.(MD)NO.337 OF 2021

G.R.SWAMINATHAN,J.

PMU

S.A.(MD)No.337 of 2021

08.06.2021

https://www.mhc.tn.gov.in/judis/