Madras High Court
Sam David vs State Of Tamil Nadu on 1 April, 2022
1 S.A.(MD)No.814 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.814 of 2010
Sam David ... Appellant / Appellant /
Plaintiff
Vs.
1. State of Tamil Nadu,
Rep. by the District Collector,
Kanyakumari District,
Nagercoil,
Vadasery Village,
Agastheeswaram Taluk,
Kanyakumari District.
2. The Commissioner,
Panchayat Union,
Munchirai,
Munchirai Desom,
Arudesom Village,
Vilavancode Taluk,
Kanyakumari District.
3. Sukumaran
4. Jeyakumar ... Respondents 1 to 4 / Respondents /
Defendants 1 to 4
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 24.11.2009 on
the file of the learned Subordinate Judge, Kuzhithurai made in
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1/9
2 S.A.(MD)No.814 OF 2010
A.S.No.141 of 2006, confirming the Judgment and Decree
dated 10.01.2006 on the file of the learned II Additional
District Munsif, Kuzhithurai, made in O.S.No.363 of 1995.
For Appellant : Mr.K.N.Thampi
For R-1 & R-2 : Mr.R.Ragavendran,
Government Advocate.
***
JUDGMENT
The plaintiff in O.S.No.363 of 1995 on the file of the II
Additional District Munsif, Kuzhithurai, is the appellant in this
second appeal.
2. The suit was filed for permanent injunction and
recovery of possession. The plaintiff had impleaded as many as
six defendants. While the first defendant is the State of Tamil
Nadu and the second defendant is the local body, defendants 3
to 6 are private persons. Defendants 3 to 6 remained ex-parte.
The second defendant alone filed written statement. The
allegation of the plaintiff is that on his private patta land,
encroachment was committed by widening the existing public
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pathway. Defendants 1 and 2 took the stand that they had
nothing to do with the widening activity. Based on the
divergent pleadings, the trial Court framed the necessary
issues. The plaintiff examined himself as P.W.1 and one
Thomas was examined as P.W.2. Ex.A.1 to Ex.A.24 were
marked. On the side of the local body, an assistant was
examined as D.W.1. On the side of the defendants, no
documentary evidence was adduced. An Advocate
Commissioner was appointed and his report and plan were
marked as Ex.C.1 and Ex.C.2. After consideration of the
evidence on record, the trial Court by judgment and decree
dated 10.01.2006 decreed the suit partly by granting
permanent injunction in favour of the plaintiff against the
defendants in respect of the area shown in Ex.C.2 plan as A B J
I G H. In all other respects, the suit was dismissed. Ex.C.2
plan was appended to the decree. Aggrieved by the same, the
plaintiff filed A.S.No.141 of 2006 before the Sub Court,
Kuzhithurai. By the impugned judgment and decree dated
24.11.2009, the first Appellate Court confirmed the decision of
the trial Court and dismissed the appeal. Challenging the
same, this second appeal came to be filed. It was admitted on
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23.03.2022 on the following substantial question of law:-
“ Whether the Courts below ought to have
decreed the suit in toto when it has been established
that the plaintiff has title over the entire suit
property? ”
3. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
question of law in favour of the appellant and modify the
impugned judgment and decree and decree the suit as prayed
for.
4. Per contra, the learned Government Advocate
appearing for the official respondents submitted that the
impugned judgment and decree do not call for any
interference.
5. I carefully considered the rival contentions and
went through the evidence on record.
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6. The case of the plaintiff is that the suit ' A '
schedule property belongs to him absolutely. However on the
easternmost portion of the ' A ' schedule property, a pathway
measuring 5 links was allowed to be used by the residents of
the northern side to come to Kollencode-Kaliyakkavilai Road
situated on the southern side of the suit ' A ' schedule
property. According to him, on 22.07.1995, some persons of
the locality joined hands with certain Panchayat officials and
committed trespass on the plaint ' C ' schedule property and
widened the existing pathway by demolishing eastern
boundary of ' C ' schedule property. The plaintiff was unable
to confront the trespassers. He therefore filed O.S.No.363 of
1995 seeking permanent injunction in respect of ' C ' schedule
property and recovery of possession in respect of ' D '
schedule property. An Advocate Commissioner was appointed
and his report and plan were filed before the Court. The
Advocate Commissioner visited the suit schedule property on
28.12.2003 and found that a new road having width of 20 links
was being formed on the eastern side of ' A ' schedule
property. When he visited the spot on the second occasion, the
road work had been completed and a tar road was in
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existence. The Advocate Commissioner in his plan had shown '
A ' schedule property as A B C D E F G H. ' B ' schedule
property represented the then existing pathway. ' C ' schedule
has been described as A B C E F G H. ' D ' schedule property
has been mentioned as B C F G I J. ' D ' schedule is the
widened portion and it furnished the cause of action for filing
the suit.
7. As already pointed out by marking Ex.A.1 to
Ex.A.24, the plaintiff had convincingly established that he has
title over ' A ' schedule property. In fact this is not contested
by the defendants at all. The plaintiff had also conceded that
on the easternmost portion of ' A ' schedule property, there is
an existing pathway used by the members of the general
public. According to him, the width of the said pathway was 5
links and that it was widened in a high-handed manner to 20
links. The widened portion has been shown as ' D ' schedule.
Recovery of possession is sought in respect of ' D ' schedule.
The trial Court noted that ' D ' schedule is a part of ' C '
schedule. The trial Court found that the plaintiff has sought
permanent injunction for ' C ' schedule and recovery of
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possession for ' D ' schedule. According to the trial Court, this
is not proper. It is true that the trial Court is technically
correct but nothing stopped the trial Court from granting the
relief of recovery of possession of ' D ' schedule property and
granting permanent injunction in respect of the remaining
portion of ' C ' schedule property. The trial Court had faulted
the plaintiff for having impleaded the local body. When there
is a public pathway, it obviously vests only with the local body.
That is why, the plaintiff rightly impleaded not only the
Government but also the local body. Defendants 1 and 2 have
categorically taken the stand that they did not sanction the
illegal widening of the existing public pathway. The trial Court
ought to have to decreed the suit as prayed for. Therefore, the
substantial question of law is answered in favour of the
appellant and the impugned judgment and decree is modified.
The suit is decreed as prayed for.
8. Though I had decreed the suit as prayed for, it is
always open to the parties to resolve the issue otherwise also.
The appellant is given liberty to submit a representation to the
first respondent offering to settle the matter by accepting
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compensation. If such a representation is given, the first
respondent is directed to consider the same in accordance
with law and appropriately compensate the appellant. On such
receipt of such representation, the first respondent shall
dispose it of within a period of twelve weeks thereafter. If the
first respondent is not willing to compensate the appellant, it
is always to the appellant herein to execute this decree.
9. This second appeal is allowed. No costs.
01.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
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,
Kuzhithurai.
2. The II Additional District Munsif,
Kuzhithurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.814 of 2010
01.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
