Muthu vs Muthu
2021 Latest Caselaw 21506 Mad

                                                                             S.A.(MD)No.474 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.474 of 2007


                   Muthu                      ... Plaintiff / Respondent / Appellant


                                                      -Vs-


                   1.Muthu
                   2.Periyannan
                   3.Periyasamy
                   4.Kanagaraj          .. Defendants 1 to 4 / Appellants 1 to 4 / Respondents


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

                   against the judgment and decree of the Principal Sub Court, Trichy in A.S.No.217

                   of 2004 dated 17.07.2006 reversing the judgment and decre of the District Munsif

                   Court, Turaiyur in O.S.No.151 of 2001 dated 11.10.2004.



                                      For Appellant          : Mr.V.Singan

                                      For Respondents         : Mr.L.Siva
                                                              for Mr.N.Mohamed Asif


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


                   1/6
                                                                             S.A.(MD)No.474 of 2007



                                                      JUDGMENT

The plaintiff in O.S.No.151 of 2001 on the file of the District Munsif

Court, Turaiyur is the appellant in this appeal.

2. The appellant herein filed the said suit seeking the relief of

permanent injunction restraining the defendants from interfering with his

possession and enjoyment of the suit property. The defendants filed the

written statement asserting their claim to access their property through

pathway S.F.No.427/21 in South Nalliyampatti. Based on the divergent

pleadings, the trial court framed the necessary issues. The plaintiff

examined himself as P.W.1 and one Veera Muthu was examined as P.W.2.

Ex.A1 to Ex.27 were marked. The second defendant examined himself as

D.W.1. Two other witnesses were examined on his side. After a

consideration of the evidence on record, the trial court by judgment and

decree dated 11.10.2004 decreed the suit as prayed for. Aggrieved by the

same, the defendants filed A.S.No.217 of 2004 before the Sub Court,

Tirichirappalli. By the impugned judgment and decree dated 17.07.2006,

the first appellate court reversed the decision of the trial court and allowed

the appeal and dismissed the suit. Challenging the same, this second appeal

came to be filed. The second appeal was admitted on 11.06.2007 on the

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

S.A.(MD)No.474 of 2007

following substantial questions of law:-

1.Whether the appreciation of the evidence by the first appellate court is legally correct?

2. Whether the first appellate court's decree and judgment are in order which overlooks the admitted evidence of the respondents that they have been accessing the property in SF:No.426 from SF:425?

3.Whether the judgment and decree of the first appellate court are legally sustainable for the reasons and for the fact that the first appellate court can set up a new case contrary to the admitted evidence of the respondents?

3. Heard the learned counsel on either side.

4. It is seen that the plaintiff sought the relief of permanent injunction

in respect of the following property:-

“Trichy District, Turaiyur Taluk, in South Nalliyampatti

Village in SF:427/21 an extent of property measuring 30 mts.

East-west and also 30 mts.north to south together with a house

standing in the property bearing Door No.102 in Ward No.4

with electric service No.162 with other easmentary rights

attached to the property along with coconut trees in the same.”

5. The defendants in their written statement admitted that the plaintiff

has put up a house on a poromboke land. Their only assertion was that their

right to access the property through S.F.No.427/21 cannot be obstructed. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.474 of 2007

Thus, the existence of the suit premises is admitted by the defendants

themselves. In the description of the property, door number has been given

and the electricity service number has also been given. When the

defendants themselves have admitted the possession of the plaintiff, atleast

over a portion of the suit property, the first appellate court could not have

dismissed the suit in toto. Therefore, the third substantial question of law is

answered in favour of the appellant. It is not necessary to consider the

other two substantial questions of law. The impugned judgment and decree

passed by the first appellate court is set aside. However, the judgment and

decree cannot be restored in toto. Instead, it is modified and the plaintiff is

granted the relief of permanent injunction in respect of the suit house alone.

6. The second appeal is partly allowed. No costs.

27.10.2021

Internet : Yes/No Index : Yes/No rmi

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

S.A.(MD)No.474 of 2007

To

1.The Principal Sub Court, Trichy.

2. The District Munsif Court, Turaiyur

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

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

S.A.(MD)No.474 of 2007

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.474 of 2007

27.10.2021

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