Madras High Court
Elumalai vs Madurai Gounder on 5 March, 2021
C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.R.P.(NPD).No.2741 of 2018
Elumalai ... Petitioner
Versus
1.Madurai Gounder
2.Arjuna Gounder
3.Kuppusamy ... Respondents
Civil Revision Petition filed under Section 115 of the Civil Procedure
Code, to set aside the order and decreetal order dated 25.10.2017 passed in
E.A.No.34 of 2012 in O.S.No.390 of 1989 by the learned District Munsif Judge
at Madurantakkam, and allow E.A.No.34 of 2012 by allowing this C.R.P.
For Petitioner : Mr.N.Nagu sah
For Respondents : Mr.K.Govi Ganesan
****
ORDER
This Civil Revision Petition is filed to set aside the order and
decreetal order dated 25.10.2017 passed in E.A.No.34 of 2012 in O.S.No.390
of 1989 by the learned District Munsif Judge at Madurantakkam, and allow
E.A.No.34 of 2012 by allowing this Civil Revision Petition.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
2.The E.A.No.34 of 2012 was filed to pass an order to punish the
respondents/defendants by sending him into civil prison for three months for
contempt of Court under Order 21 Rule 32 of the Code of Civil Procedure.
3.Originally, the suit was filed by the revision petitioner herein to
declare the plaintiff's easementary right of way over ABCDEF portion and to
grant permanent injunction restraining the defendants their men and agents
from in any way interfering with the plaintiff's usage of the ABCDEF portion as
cart track.
4.After hearing both the parties, the court below decreed the suit as
follows:
“1/tHf;Fiu tiuglj;jpy;
Fwpf;fg;gl;Ls;s *V. gp/rp/o* ,. vg;. nghh;c&dpy;
cs;s tz;og;ghijf;F thjp ,d;wpaikah
trjpahpik bgw chpik cilath; vd;W
tpsk;g[yfr; bra;ag;gl;Lj; jPh;g;ghid
tH';fg;gl;lJ/
2/nkw;brhd;d tz;og;ghijapy;
cgnahfj;jpy; gpujpthjpfnsh mtuJ Ml;fnsh.
kw;Ws;sth;fnsh Kfth;fnsh vt;tpjj;jpYk;
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C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
jiyaplf;TlhJ vd;W epue;ju cWj;Jf;
fl;lis tH';fg;gl;Lj; jPh;g;fid tH';fg;gl;lJ
: nkYk;/
3/tHf;fpy; cwt[ Kiwfisf; fUj;jpy;
bfhz;L ,U jug;gpdh;fSk; mtuh;fs; tHf;Fr;
bryit mtuth;fnsh Vw;Wf; bfhs;sntz;Lk;
vd;Wk; jPh;g;ghid tH';fg;gl;lJ/@
5.On perusal of the above decree, it would show that there was a
declaration of the plaintiff's easementary right of way over ABCDEF Portion
and granted permanent injunction restraining the defendants their men and
agents from in any way interfering with the plaintiff's use in the ABCDEF
portion as cart track.
6.The learned counsel appearing for the Revision Petitioner
submitted that E.A.No.34 of 2012 was filed to punish the respondents for
violation of decree passed by the Trial Court in O.S.No.390 of 1989.
7.The petitioner obtained decree from the Trial Court, whereby he is
entitled to use the car track without any interference from the respondents. The
main contention of the Revision Petitioner is that on 19.03.2012 at about 10.00
a.m, the respondent herein trespassed into the suit property and prevented the
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
petitioner from using the car track. In this regard, the petitioner herein had
lodged the complaint before the Inspector of Police, Melmaruvathur Police
Station on the very same day. The Police did not take any action. Since the
Police failed to take any action, without any other option, the Revision
Petitioner filed E.A.No.32 of 2012 to punish the respondent for the act of
contempt. Without considering all these aspect, the Court below dismissed the
application. Aggrieved over the order passed by the Court below, the present
Civil Revision Petition has been filed and hence prayed to allow the Civil
Revision Petition.
8.On the other hand, the learned counsel appearing for the
respondents would submit that the petitioner had alleged the false claim as if
that they are only having the exclusive right to use the car track but the fact
remains that the decree was passed declaring that the petitioner's right to use
the car track without any interference from the respondent. The claim made by
the petitioner on the basis that the petitioner alone can exclusively use the car
track. But the fact remains that the said car track is in common pathway and
the same can be used by both the parties and the Court below has not restrained
the defendants from using the car track. Further, he contended that respondents
not at all trespassed and prevented the petitioner from using car track.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
Therefore, the learned counsel submitted that the petitioner made a wrong claim
and the same was rightly rejected by the Court below. Hence, prayed for
dismissal of the Civil Revision Petition.
9.Heard the learned counsel for the petitioner as well as the
respondents and perused the materials available on record.
10.A perusal of the P.W.1's cross examination would show that the
respondents herein had no right to use the pathway which is mentioned in the
schedule of property. A perusal of the judgment of the Trial Court as well as
the Appellate Court and Exs.P1 to P6 would show that the Revision Petitioner
was granted only the right to use the pathway of easement of necessity in
ABCDEF property without any interference from the respondent.
11.When such being the case, the claim made by the Revision
Petitioner was that the respondent trespassed and prevent the usage of the car
track. The claim made by the Revision Petitioner itself not correct. There is no
necessity for the respondents to trespass into the car track. It appear that the
Revision Petitioner and the respondents are equally entitled to use the car track.
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C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
12.By virtue of the decree, the petitioner was granted right to use the
car track by way of easement of necessity without any disturbance of the
respondents. Thus, the car track is not only meant for the exclusive usage of the
petitioner but also for the usage of the respondents. The petitioner construed as
if the respondents trespassed the car track and lodged the complaint before the
Police Station. Further, the Court below held that the petitioner has not proved
that the respondents trespassed prevented the Revision Petitioner from using
the car track. Under such circumstances, the Court below dismissed E.A.No.34
of 2012. Therefore, this Court does not find any infirmity in the order passed
by the Court below and subsequently no merit in the present Civil Revision
Petitioner.
13.In view of the above, this Civil Revision Petition is dismissed.
However, there shall be no order as to costs.
05.03.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
ah/rst
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C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
To
The District Munsif Judge at Madurantakkam.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2741 of 2018 and CMP.No.23329 of 2018
KRISHNAN RAMASAMY, J.,
ah/rst
C.R.P.(NPD).No.2741 of 2018
05.03.2021
https://www.mhc.tn.gov.in/judis/
