Madras High Court
T.Vilwanathan vs Elumalai on 6 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.04.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.No.1152 of 2017
and
C.M.P.No.5494 of 2017
T.Vilwanathan
... Petitioner/Petitioner/Plaintiff
Vs.
1.Elumalai
2.Suganthi
...Respondents/Respondents/Defendants
Civil Revision Petition filed under Article 227 of Constitution of India,
to set aside the Fair and Decreetal order dated 09.09.2016 passed in
I.A.No.517 of 2016 in O.S.No.258 of 2009 on the file of the District
Munsif Court, Madurantakkam, Kanchipuram District.
For Petitioner .. Mr.N.Nagu Sah
For Respondents .. No appearance
https://www.mhc.tn.gov.in/judis
2
ORDER
Heard learned counsel for the revision petitioner.
2.The revision petitioner is the plaintiff in O.S.No.258 of 2009 on
the file of the District Munsif Court, Madurantagam. The respondents are
the defendants.
3.There is no representation on behalf of the respondents, but the
names and addresses of the respondents are printed in the cause list. The
Registry had put up a note that both the respondents had been served on
27.09.2021 through Court and that private notice had also been served on
25.02.2022. They also been served through the lower Court counsel.
These notings are available in the records of this Court. Let me therefore
not hold over the Revision Petition and rather pass orders on the basis of
the available records.
4.The plaintiff had initially filed a suit in O.S.No.258 of 2009
before the District Munsif Court, Madurantagam, seeking declaration of
title to the suit property and for consequential permanent injunction
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restraining the defendants from interfering with the peaceful possession.
In the schedule to the plaint, the property was described as situated at
Kancheepuram District, Madurantagam Taluk, Karunguzhi Village in
Wet S.No.334/8 measuring 0.03.0 Hectares.
5.The defendants have filed their written statement. Issues will
now have to be framed. At that particular stage, the plaintiff filed
I.A.No.517 of 2016 seeking amendment of the plaint. The amendment
sought, was with respect to the schedule to the plaint. They wanted a
further relief also, namely, for declaration of the title of the plaintiff with
respect to the property described as schedule A and also for schedule B
and for delivery of possession. They had deleted the schedules earlier
given and had given a fresh schedule as schedule A and schedule B.
They are both again wet lands in Karunguzhi village.
6.In the applications sought to amend the relief sought and also the
schedule, it had been stated that after survey, the plaintiff found that the
2nd defendant had encroached into a portion of the property and therefore,
the relief of delivery of possession or rather recovery of possession is
required to be included and in view of the survey, the correct details of
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the property have to be incorporated by giving survey numbers properly.
This application came up for consideration before the District Munsif
Court, Madurantagam. By order dated 09.09.2016 the said application
was dismissed.
7.The learned District Munsif, was of the view that the amendment
sought went beyond the relief sought in the plaint and that the cause of
action would change, if the amendment is allowed. I do not think that
particular opinion expressed by the learned District Munsif is correct and
can be sustained by this Court.
8.The plaintiff filed a suit for declaration of title and for
permanent injunction. Pending the suit, the plaintiff had an occasion to
survey the land when the plaintiff found that a portion of the property
had been encroached by the defendants. Naturally, the relief of
permanent injunction cannot be granted since the defendants are in
occupation whether lawfully or not of a portion of the property. To that
extent, recovery of possession has to be sought and that was one of the
reasons why the amendment was filed. The other reason, was to correct
the survey number. It is for the plaintiff to establish that she is entitled
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for declaration of title with respect to the lands mentioned in the plaint. If
she is not able to establish that particular fact whether the survey number
is added or not, she cannot get any relief in the suit. She has to establish
that she has title over the property and that she is entitled to be declared
as the owner of the property and that she must be declared to have a right
to enjoy the property. These are averments to be proved. The property
must be identifiable and properly described. All these aspects will have
to examined by the District Munsif before passing a judgment with
respect to declaration of title. There is no shift in the cause of action, but
only a correction made with respect to the survey numbers. The burden is
always on the plaintiff to establish title over the newly added or the
corrected survey numbers.
9.Therefore, I would interfere with the order of the learned District
Munsif, Madurantagam dated 09.09.2016 in I.A.No.517 of 2016 and set
aside the same and allow the amendment. The plaintiff may be permitted
to allow the plaint as sought for in I.A.No.517 of 2016 and after carrying
out necessary amendments, the defendants may be given an opportunity
to file additional written statement and thereafter let issues be framed and
the parties put to trial.
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10.With the above observations, the present Civil Revision
Petition stands allowed. No costs. Consequently, connected Civil
Miscellaneous Petition is closed.
06.04.2022
Internet:Yes/No
Index:Yes/No
smv
To,
The District Munsif Court, Madurantakam.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
smv
C.R.P.PD.No.1152 of 2017
and
C.M.P.No.5494 of 2017
06.04.2022
https://www.mhc.tn.gov.in/judis
