Madras High Court
The Loyal Textiles Ltd vs Innachimuthu (Died) on 1 November, 2021
S.A.No.665 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2021
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A No.665 of 2003
The Loyal Textiles Ltd.,
Kovilpatti,
rep.by its General Manager,
Kovilpatti. ... 1st Defendant / Appellant/
Appellant
vs.
1.Innachimuthu (died)
2.Vallinayagam
3.Subbiah
4.Muniyasamy ...Plaintiffs/Respondents/
1 to 4 respondents
5.The Kovilpatti Municipality,
through its Commissioner,
Kovilpatti.
6.The State of Tamil Nadu,
through its District Collector,
Thoothukudi. ... Defendants 2 and 3 /
Respondents 5 and 6 /
Respondents
Prayer: Second appeal filed under Section 100 of C.P.C.,
against the judgment and decree dated 28.02.2003 in A.S No.
130/1998 on the file of the Subordinate Judge, Kovilpatti
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S.A.No.665 of 2003
confirming the judgment and decree dated 29.04.1994 in O.S
No.301 of 1985 on the file of the District Munsif, Kovilpatti.
For Appellant : Shri.A.R.L.Sundaresan,
for A.L.Gandhimadhi,
Senior Counsel
For Respondents : Shri.N.Tamilmani
for R1 to R4
Shri.K.K.Ramakrishnan for R5
Shri.Ragavendran for R6
JUDGMENT
The contesting defendant in O.S No.301 of 1985 on
the file of the District Munsif Court, Kovilpatti is the appellant
in this second appeal. The suit was filed in a representative
capacity for grant of permanent injunction restraining the
appellant herein from interfering with the right of the
plaintiffs and their men from using the schedule property as
public pathway. The appellant filed written statement and an
additional written statement controverting the plaint
averments. Based on the divergent pleadings, issues were
framed. On the side of the appellants, four witnesses were
examined. Exs.A1 and A2 were marked. On the side of the
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S.A.No.665 of 2003
defendants, two witnesses were examined. Exs.B1 to B13
were marked. The Advocate Commissioner's report and plan
were marked as Exs.C1 and C2. The survey sketch was
marked as Ex.C3. By judgment and decree dated 29.04.1994,
the suit was decreed. Aggrieved by the same, the first
defendant filed A.S No.130 of 1998 before the Sub Court,
Kovilpatti. By the impugned judgment and decree dated
28.02.2003, the judgment and decree passed by the trial court
was confirmed and the appeal came to be dismissed.
Challenging the same, this second appeal was filed. It was
admitted on 30.04.2003 on the following substantial questions
of law :
“1.Whether the courts below are correct
in granting a decree for bare injunction without
declaration as public pathway.
2.Whether the courts below are correct in
decreeing the suit in spite of the finding that it is
only a road of the Mill and it is used by the public?
3.Whether the plaintiffs have discharged
their burden of proof?
4.Whether an injunction can be granted
merely on the finding that it is occasionally used
by the public as pathway?”
2.The learned Senior counsel appearing for the
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S.A.No.665 of 2003
appellant reiterated the contentions set out in the
memorandum of grounds and called upon this Court to answer
the substantial questions of law in favour of the appellants and
set aside the impugned judgment and decree. He however
stated that the appellant will not have any objection for
pedestrian movement alone. A memo to this effect signed by
the appellant was filed. In the memo, there was restriction
regarding timings. The learned Senior Counsel submitted that
he has instructions that there will not be any restriction
regarding timings. The said undertaking is placed on record.
3.The learned counsel appearing for the respondents
submitted that no case has been made out for interference.
4.I carefully considered the rival contentions and
went through the evidence on record. The case of the
plaintiffs is that the suit pathway is a public pathway. On the
other hand, the appellant contended that it is a road belonging
to them. The plaintiffs have marked the town survey sketch
and town survey field map. From the markings made therein,
one cannot come to any conclusion regarding the character of
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S.A.No.665 of 2003
the suit pathway. This is because of the overwhelming
evidence adduced by the appellant. Ex.B1 is town survey
register wherein the suit property has been shown as
belonging to the appellant mill represented by the then
Managing Director Shri.Karumuthu Thiagarajan Chettiar. The
Late Managing Director was a legendry industrialist who
passed away in the 1970s. Ex.B1 is older document compared
to Exs.A1 and A2. Ex.B2 is an extract of the ground rent
register reflecting the name of the appellant. Ex.B6 and Ex.B8
are letters sent by Kovilpatti Municipality seeking donation of
a portion of the suit pathway from the appellant. Ex.B9 and
Ex.B10 are sale deeds. The appellant has also marked a copy
of the order passed by the Special Assistant Settlement
Officer, Kovilpatti in favour of the appellant as against the
local body. The second respondent in the settlement
proceedings is one Innasimuthu described as panchayat board
member. He appears to be the first plaintiff in the suit also.
Of course, the decision of the Settlement Authority is not
binding on the civil court.
5.Since the appellant has placed overwhelming
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S.A.No.665 of 2003
evidence in support of their title claim, the plaintiffs ought to
have amended the suit prayer and sought the relief of
declaration also. Of course, the learned counsel for the
plaintiffs would rely on the decision reported in 2009 (6) CTC
85 for the proposition that a suit for permanent injunction
regarding common pathway can be maintained without
seeking declaration of title. However, I am bound by the
decision of the Hon'ble Supreme Court in Anathula
Sudhakar vs P. Buchi Reddy (2008) 4 SCC 594. The
principles were laid down as follows :
“17....
(a) Where a cloud is raised over plaintiff's title and
he does not have possession, a suit for declaration
and possession, with or without a consequential
injunction, is the remedy. Where the plaintiff's title
is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a
consequential injunction. Where there is merely an
interference with plaintiff's lawful possession or
threat of dispossession, it is sufficient to sue for an
injunction simpliciter.”
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S.A.No.665 of 2003
In this case, in view of the patta standing in the name of the
appellant (Ex.B1) and the order of the Settlement Authority
(Ex.B12), the plaintiffs were obliged to seek the relief of
declaration. A pucca road had been laid and it is not the case
of the local body that they had laid the road. The road is
bounded on both sides by gates and it is under the effective
possession of the appellant Mill. The courts below failed to
note that a simple suit for prohibitory injunction could not
have been filed at all. The parent deed as well as the sale
deed standing in the name of the appellant Mill clearly
indicate that the suit pathway was also included therein. On
both sides of the suit pathway, the buildings of the Mill are
situated. The specific stand of the appellant is that the suit
pathway is for the use of the Mill employees and officials and
movement of vehicles. Since in view of the Anathulla decision,
the first substantial question of law is answered in favour of
the appellant, it is not necessary to go into the other issues.
The impugned judgment and decrees are set aside. However,
in view of the undertaking given by the appellant, the second
appeal is disposed of in terms of the memo dated 30.10.2021
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S.A.No.665 of 2003
filed by the appellant. The said memo shall form part of the
decree. As already clarified, there shall be no restriction
regarding timings for pedestrian movements which of course
would include use of bicycles.
01.11.2021
Index : Yes / No
Internet : Yes/ No
skm
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.
To:
1. The Subordinate Judge, Kovilpatti.
2. The District Munsif, Kovilpatti.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.665 of 2003
G.R.SWAMINATHAN, J.
skm
S.A No.665 of 2003
01.11.2021
https://www.mhc.tn.gov.in/judis
