Madras High Court
Lakshmi vs Rajamanickam on 2 November, 2021
S.A.(MD)No.673 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.11.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.673 of 2021
and
C.M.P.(MD)No.9036 of 2021
Lakshmi ... Appellant
Vs.
1.Rajamanickam
2.Chandran ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 05.01.2021 passed in the appeal in
A.S.No.47 of 2018 on the file of the Subordinate Court, Tirumangalam,
confirming the judgment and decree dated 13.04.2018 passed in the suit in
O.S.No.594 of 2014 on the file of the District Munsif cum Judicial Magistrate
Court, Peraiyur.
For Appellant : Mr.J.Barathan
For T.R.Jeyapalam
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S.A.(MD)No.673 of 2021
JUDGEMENT
Heard the learned counsel for the appellant. Considering the nature of
relief to be granted in this second appeal, notice to the respondents is dispensed
with.
2.The plaintiff in O.S.No.594 of 2014 on the file of the District Munsif
Court Cum Judicial Magistrate, Peraiyur is the appellant herein. The
defendants questioned the plaintiff's title as well as possession over four cents
of land. The suit property measures 40 cents of land. The trial Court took the
view that since the plaintiff's title has been questioned though over a portion of
the suit property, the plaintiff ought to have sought the relief of declaration.
Since declaration was not sought, applying the decision of the Hon'ble Supreme
Court reported in 2009 (1) L.W. 546 (Anathula Sudhakar vs. P.Buchi Reddy
(Dead) by LRs and Others), the suit came to be dismissed. A further finding
was given that there is some doubt regarding the identity of suit property. This
decision of the trial Court was also confirmed by the Sub Court, Tirumangalam,
in A.S.No.47 of 2018. Challenging the same, this second appeal has been filed.
3.Since on facts, the Courts below rendered concurrent findings against
the appellant, I do not deem it fit and appropriate to interfere in exercise of
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S.A.(MD)No.673 of 2021
jurisdiction under Section 100 of Civil Procedure Code. Moreso, no substantial
question of law arises for determination. However, taking note of overall facts
and circumstances, liberty is given to the appellant to institute a fresh suit with
the reliefs of declaration and either injunction or recovery of possession.
4.With this liberty to the appellant, this second appeal is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
02.11.2021
Index : Yes / No
Internet : Yes/ No
ias
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 Sub Court,
Thirumangalam.
2.The District Munsif Court Cum Judicial Magistrate,
Peraiyur.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.673 of 2021
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.673 of 2021
02.11.2021
https://www.mhc.tn.gov.in/judis/
