Madras High Court
Jeyasingh vs Kamatchi Ammal (Died) ... 1St on 27 September, 2021
1 S.A.(MD)No.728 OF 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.728 of 2006
Jeyasingh ... Appellant / 1st Respondent /
Plaintiff
Vs.
1. Kamatchi Ammal (Died) ... 1st Respondent / Appellant /
1st Defendant
2. Kariapatti Major Panchayat,
Rep. By its Chairman. ... 2nd Respondent / 2nd Respondent/
2nd Defendant
3. K.Manoranjitham
(R-3 is brought on record as LR. of the deceased
1st Respondent vide Order dated 05.02.2021
made in M.P.(MD)No.1 of 2014) ... 3rd Respondent
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow the second appeal and set aside the judgment
and decree dated 21.03.2006 made in A.S.No.47 of 2005 on
the file of the Sub Court, Aruppukottai, reversing the
judgment and decree dated 19.01.2005 made in O.S.No.268 of
2000 on the file of the District Munsif Court, Aruppukottai.
For Appellant : Mr.P.T.S.Narendravasan
For R-2 & R-3 : No appearance.
***
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2 S.A.(MD)No.728 OF 2006
JUDGMENT
The plaintiff in O.S.No.268 of 2000 on the file of the
District Munsif, Aruppukottai, is the appellant herein.
2. The suit was filed for seeking the relief of
declaration, permanent injunction and mandatory injunction in
respect of the suit property. The case of the plaintiff is that the
suit property is a public street and that the private defendant
had committed encroachment thereon. The contesting
defendant filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial Court
framed the necessary issues. The plaintiff examined himself as
P.W.1 and two other witnesses were examined on his side.
Ex.A.1 to Ex.A.23 were marked. The contesting defendant
examined herself as D.W.1 and Ex.B.1 to Ex.B.11 were
marked. An Advocate Commissioner was appointed and his
reports and plans were marked as Court Exhibits 1 and 2.
Through the third party witness, Witness Exhibits 1 and 2
were marked. After a consideration of the evidence on record,
the trial Court by judgment and decree dated 19.01.2005
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decreed the suit. Aggrieved by the same, the contesting
defendant Kamatchi Ammal filed A.S.No.47 of 2005 before the
Sub Court, Aruppukottai. The first appellate Court by
judgment and decree dated 21.03.2006 reversed the decree
and allowed the appeal and dismissed the suit. Challenging
the same, this second appeal came to be filed.
3. This second appeal was admitted on the following
substantial questions of law:-
“ a) Whether the lower appellate Court
is correct in reversing the judgment and decree
of the trial Court, when the 1st defendant is
estopped under law and on her own conduct on
the foot of Ex.A.21 the decree passed in O.S.
No.448 of 1979 on the file of the District Munsif
Court, Manamadurai and she had withdrawn the
suit in O.S.No.87 of 1987 filed by her by
showing the suit property as Street?
b) Whether the lower appellate Court is
correct in reversing the judgment and decree of
the trial Court, when the principle of
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Acquiescence is not applicable to the present
case, when the 1st defendant had put up
construction of wall in the suit property and
projected the roof therein in spite of protests
made by the plaintiff, which is substantiated
from Ex.A.8 to A.16? “
4. During the pendency of the appeal, Kamatchi
Ammal passed away. She had engaged a counsel to defend her
in this appeal. Her daughter K.Manoranjitham was impleaded
as the third respondent and she was duly served through
Court notice. She has not chosen to engage any counsel. She
is set ex-parte. The local body has also chosen to remain ex-
parte. As per Order 41 Rule 17(2) of C.P.C., where the
appellant appears and the defendant does not appear, the
appeal shall be heard ex-parte. There is no need to adjourn the
hearing of the appeal after setting the respondent who is
absent as ex-parte. I take inspiration from Order 9 Rule 6 of
C.P.C. in this regard. As per Order 9 Rule 6 of C.P.C., where
the plaintiff appears and the defendant does not appear when
the suit is called for hearing, the suit shall be
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heard ex-parte, when summons have been duly served. If the
summons have not been duly served, the Court shall direct
second summon to be issued and served on the defendant. If it
is proved that the summon was served on the defendant but
not in sufficient time to enable him to appear, the Court shall
postpone the hearing of the suit to a future day and shall
direct notice on such day to be given to the defendant. The
aforesaid provision does not state that the defendant who is
absent should be set ex-parte and thereafter, the matter
should be adjourned. Taking inspiration from this provision, I
am of the view that there is no need to adjourn the hearing of
the appeal. Of course the learned counsel who appeared for
the deceased respondent has also not appeared. This is
because the newly impleaded respondent had not chosen to
give him Vakalath.
5. The case of the plaintiff / appellant is that the suit
property was already declared as public street in O.S.No.448
of 1979 on the file of the District Munsif, Manamadurai, which
was marked as Ex.A.21. The plaintiff in the said suit was none
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other than the deceased respondent, namely, Kamatchi
Ammal. Therefore, the deceased defendant was clearly
estopped from denying the character of the suit property as a
public street. I answer the first substantial question of law in
favour of the appellant.
6. The trial Court decreed the suit and the same was
reversed by the first appellate Court only for the reason that
the plaintiff had acquiesced in the acts of encroachment
committed by the deceased respondent. The first appellate
Court ought to have noted that any street within the
jurisdiction of a local body will vest with the local body. The
character of the public street will not change with the passage
of time. The learned counsel appearing for the appellant
would point out that the appellant had been petitioning the
authorities for removing the encroachment. This is evidence
from Ex.A.10 and Ex.A.14. Even if the plaintiff had acquiesced,
that would still not come in the way of granting relief. The
Madurai Bench of Madras High Court had issued continuing
mandamus to all the public authorities to ensure that the streets
are always kept free of encroachment. The first appellate Court
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misdirected itself in law by taking into account the conduct of
the appellant. The issue on hand already stood concluded by
the judgment and decree made in O.S.No.448 of 1979. When
once the suit property was declared as a street, it has to be
maintained as a street for ever and in perpetuity.
7. The second substantial question of law is answered
in favour of the appellant. The impugned judgment and decree
is set aside and the decision of the trial Court is restored. This
second appeal is allowed. No costs.
27.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Web copy of this order shall be uploaded
on 24.01.2022.
https://www.mhc.tn.gov.in/judis
Note : Web copy of this order
shall be uploaded on
20.01.2022.
G.R.SWAMINATHAN,J.
PMU
To:
1. The Sub Judge,
Aruppukottai.
2. The District Munsif,
Aruppukottai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
S.A.(MD)No.728 of 2006
27.09.2021
https://www.mhc.tn.gov.in/judis
