Madras High Court

V.Sangili (Died) vs Hari Narayanan on 27 October, 2021

                                                                          S.A.(MD)No.1050 of 2007

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 27.10.2021

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                           S.A.(MD)No.1050 of 2007


                   1.V.Sangili (died)

                   2.Muniyasamy

                   3.Lakshmanan

                   4.Dharmaraj                     ... Defendants 1 to 4 / Respondents 1 to 4/
                                                                      Appellants
                   5.S.Muniasamy
                     (5th appellant impleaded as LRs of the deceased
                     1st appellant vide order dated 13.02.2008 made in M.P.(MD)No.1 of 2008)


                                                    -Vs-


                   1.Hari Narayanan
                   2.Senthamarai
                   3.Thavamani
                   4.Gokuladoss Narayanan
                   5.Latha
                   6.Renganayaki
                   7.Ashok Raj          ... Plaintiffs 5, 6, 10-14 / Appellants 1 to 7 /
                                                           Respondents 1 to 7
                   8.Amsavalli @ Amsaveni
                   9.Muniyammal
https://www.mhc.tn.gov.in/judis


                   1/8
                                                                             S.A.(MD)No.1050 of 2007

                   10.Alagammal                          ... Plaintiffs 1-3 / Respondents 5 -7 /
                                                                    Respondents 8 – 10
                   11.Sengamalam
                   12.Brindha
                   13.Krishnan ... Plaintiffs 7 -9 / Respondents 8 -10 / Respondents 11 -13


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,

                   against the judgment and decree in A.S.No.162 of 1999 dated 24.12.2002 passed

                   by the Additional District and Sesssions Judge cum Chief Judicial Magistrate,

                   Ramanathapuram, reversing part of the judgment and decree in O.S.No.146 of

                   1995 dated 30.04.1998 passed by the District Munsif cum Judicial Magistrate,

                   Kamuthi.

                                        For Appellants        : Mr.Arul

                                                               for Mr.Nandakumar

                                        For R1 to R7         : no appearance
                                        For R8 to R13        : Ex-parte
                                                   JUDGMENT

The defendants in O.S.No.146 of 1995 on the file of the District

Munsif Court, Kamuthi are the appellants in this second appeal.

2.The suit was filed by the respondents herein for the relief of

permanent injunction restraining the appellants herein from interfering with

the peaceful possession and enjoyment over the plaint schedule properties

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S.A.(MD)No.1050 of 2007

of the plaintiffs. The appellants herein filed the written statement

controverting the plaint averments. Based on the divergent pleadings, the

trial court framed the necessary issues. An advocate commissioner was

appointed and his report and plan was also marked as Court Exhibits 1 and

2. On the side of the plaintiffs, as many as nine witnesses were examined.

Ex.A1 to Ex.A25 were marked. On the side of the defendants, three

witnesses were examined. Ex.B1 to Ex.B12 were marked. After a

consideration of the evidence on record, the trial court granted the relief of

permanent injunction in favour of the plaintiffs restraining the defendants

from interfering with their possession and enjoyment of the suit property.

Since it became evident from the report of the advocate commissioner that

the cart track was running across and there was also a channel running

parallel to the cart track, an advisory was issued for installing the cement

pipes to ensure free flow of the water in the channel. Aggrieved by the

same, the plaintiffs filed A.S.No.1 62 of 1999 before the Additional District

and Sessions Judge, Ramanathapuram. By the impugned judgment and

decree dated 24.12.2002, the first appellate court set aside the advisory

issued by the trial court for laying of cement pipes. Aggrieved by the

interference made by the first appellate court, the defendants filed this

second appeal.

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S.A.(MD)No.1050 of 2007

3. The second appeal was admitted on 13.02.2008 on the following

substantial questions of law:-

“a. Whether the finding of the lower court interfering with the lesser relief granted by the trial court is erroneous?

b. Whether the judgment and decree of the trial court is perverse as it failed to consider that the court could mould the relief so as to look complete justice between the parties?”

Though the respondents have been served and their names are also printed

in the cause list, there is no appearance on their behalf.

4. The learned counsel appearing for the appellants submitted that the

lands belonging to the 1st plaintiff, 7th plaintiff and 8th plaintiff lie on the

southern side, while the lands belonging to the 4th plaintiff, 3rd plaintiff, 2nd

plaintiff and 5th plaintiff lie on the northern side. A channel as well as cart

track runs between the two. The plaintiffs belong to Agatharirupu which is

a hamlet of Abiramam. The defendants belong to Pappanam village. The

villagers of Pappanam have been reaching Agatharirupu which is a main

town only through the aforesaid footpath. It appears that when a pathway

was sought to be laid, friction arose between the two villagers leading to

filing of the suit.

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S.A.(MD)No.1050 of 2007

5. As rightly pointed out by the learned counsel appearing for the

appellants, the plaintiffs ought to have filed only a representative suit under

Order 1 Rule 8 of C.P.C. The plaintiffs have not done so. Instead they have

chosen some four persons from the village of Pappanam and shown them as

defendants. The Government has also not been made as party. The suit

schedule contains the details only regarding the lands of nine plaintiffs. As

rightly pointed out by the learned counsel appearing for the appellants, the

mandate set out in Order 7 Rule 3 of C.P.C., has not at all been borne in

mind. Order 7 Rule 3 of C.P.C., states that where the subject matter of the

suit is immovable property, the plaint shall contain a description of the

property sufficient to identify it and in case such property can be identified

by boundaries or numbers in a record of settlement or survey, the plaint

shall specify such boundaries or particulars. Order 7 Rule 3 of C.P.C.,

cannot be understood as meaning that it is enough if the plaintiff gives

survey number or patta number alone. Order 7 Rule 3 of C.P.C., employs

the expression 'shall'. In other words, the description set out in the plaint

schedule must be such that one can identify the suit property. Only then,

the Court can also pass a workable order. In the case on hand, the trial

court has granted permanent injunction restraining the defendants from

interfering with the lands belonging to the plaintiffs. In fact, the defendants

ought to have filed an appeal and challenged the decree granted by the trial https://www.mhc.tn.gov.in/judis

S.A.(MD)No.1050 of 2007

court on the ground of vagueness. But they have not done so. Even though

the defendants have failed to file the first appeal, the fact remains that the

decree granted by the trial court stands vitiated on two counts.

(A) failure to notice that the suit was not filed in a

representative capacity.

(B) description of the suit property is utterly vague.

6. Be that as it may, the issue that has to be addressed has already

been dealt with by a learned judge of this Court in W.P.No.18045 of 2000.

One of the villagers of Agathayiruppu who owned the property comprised

in Survey No.203/7A filed the writ petition for restoration of the channel

mentioned above. After an elaborate consideration of the relevant

documents, the said writ petition was disposed of on 05.07.2010 with the

following directions:-

“8.In view of the above, the writ petition is disposed of in the following terms:-

1.The Revenue Divisional Officer, Paramakudi, will restore the channel through S.No.203/6 to a breadth on North-South 6 feet including the ridge and ensure free flow of water through the same to the land of the petitioner comprised in S.No.203/7A.

2.While restoring the channel, in the remaining breadth of the land comprised in S.No.203/6, the pathway shall be maintained without any interruption.

3.Both the pathway as well as the channel, as indicated above, shall be maintained without disturbance by one into the other. ”

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S.A.(MD)No.1050 of 2007

7. Since the cause of action projected in this appeal had already been

dealt with in W.P.No.18045 of 2000, the second appeal is disposed of on the

same terms. No costs.

27.10.2021

Internet : Yes/No Index : Yes/No rmi

1.The Additional District and Sesssions Judge cum Chief Judicial Magistrate,

Ramanathapuram.

2.The District Munsif cum Judicial Magistrate, Kamuthi

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.