Madras High Court
Manickkam ... Defendant/ vs Unknown on 11 April, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) Nos.727 & 728 of 2010
in SA(MD)No.727 of 2010 : -
Manickkam ... Defendant/Appellant/Appellant
v.
T.Radharukmani Ammal ... Plaintiff/Respondent/Respondent
Prayer :- Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 04.03.2009 made in A.S
No.157 of 2006 on the file of the Principal Subordinate Judge,
Kumbakonam confirming the judgment and decree dated 31.01.2006
made in O.S No.526 of 1996 on the file of the Principal District Munsif
Court, Valangaiman at Kumbakonam.
in SA(MD)No.728 of 2010 :
Manickkam ... Defendant/Respondent/Appellant
v.
T.Radharukmani Ammal ... Plaintiff/Appellant/Respondent
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Prayer :- Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 04.03.2009 made in A.S
No.144 of 2006 on the file of the Principal Subordinate Judge,
Kumbakonam confirming the judgment and decree dated 31.01.2006
made in O.S No.526 of 1996 on the file of the Principal District Munsif
Court, Valangaiman at Kumbakonam.
For Appellant : Mr.P.Ganapathi Subramanian
in both cases
For Respondent : Mr.M.R.S.Prabhu
in both cases
COMMON JUDGMENT
The defendant in O.S No.526 of 1996 on the file of the Principal
District Munsif, Valangaiman filed these two second appeals. The suit
was for the relief of permanent injunction and mandatory injunction.
The case of the plaintiff is that over the suit lane, the defendant had
raised certain offending constructions in the form of sun shades.
According to the plaintiff, the defendant had committed aerial
encroachments. The defendant filed written statement controverting
the plaint averments. The trail court framed the necessary issues. The
plaintiff examined herself as PW.1 and marked Exs.A1 to A4. The
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defendant examined himself as DW.1 and marked Exs.B1 to B4.
Advocate Commissioner was appointed and his report, surveyor report,
plan and sketch were also marked as Exs.C1 to C4. After consideration
of the evidence on record, the trial court by judgment and decree dated
31.01.2006 granted the relief of permanent injunction and denied the
relief of mandatory injunction. Aggrieved by the same, the plaintiff
filed A.S No.144 of 2006 and the defendant filed A.S No.157 of 2006
before the Principal Sub Judge, Dindigul. Both the appeals were taken
up together. By the impugned judgment and decree dated 04.03.2009,
the first appellate court allowed A.S No.144 of 2006 and dismissed the
appeal filed by the defendant in A.S No.157 of 2006. Challenging the
same, these two second appeals came to be filed.
2.Though the second appeals were filed in the year 2010, only
notices were ordered and they have not been admitted till date. The
learned counsel for the appellant/defendant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to frame the substantial questions of law and admit the second
appeals and then take them up for disposal. Per contra, the learned
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counsel for the respondent submitted that no substantial question of
law arises for determination. He called for the dismissal of the second
appeals.
3.I carefully considered the rival contentions and went through
the evidence on record. The defendant's case is that he had not
committed any encroachment. This contention is based on his claim
that his property measures 22 feet east-west. The defendant had
marked not only his title deed (Ex.B1) dated 09.03.1989 but also the
parent deeds namely Exs.B2 and B3. The plaintiff pointed out that the
ultimate parent deed is the sale deed dated 06.01.1943 which was
marked as Ex.A4. I carefully went through its contents. It clearly
states that the property covered under Ex.A4 measures 18 feet east-
west. We are not concerned with the length of the property but only
the breadth of the property. There is no dispute that the suit property
is not covered under Ex.A4. The courts below took note of the
Advocate Commissioner's report and also the Surveyor's sketch and
plan. Only after a careful consideration of the evidence on record, the
courts below came to the conclusion that the suit lane belongs to the
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plaintiff and that aerial encroachment have been committed. However,
after rightly come to the conclusion accepting the title of the plaintiff
over the suit property, the trial court erroneously declined the
mandatory injunction. The first appellate court had only given logical
effect to the reasoning of the trial court. In any event, these are pure
questions of facts. There is no substantial question of law involved. I
am not inclined to exercise the jurisdiction under Section 100 of CPC. I
find no merit in these second appeals. They stand dismissed. No costs.
11.04.2022
Internet : Yes / No
Index : Yes / No
skm
To
1.The Principal Subordinate Judge, Kumbakonam.
2.The Principal District Munsif Court, Valangaiman at Kumbakonam.
Copy to :
The Record Clerk, V.R.Section,
Madurai Bench of the Madras High Court, Madurai.
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G.R.SWAMINATHAN, J.
skm
S.A.(MD) Nos.727 & 728 of 2010
11.04.2022
https://www.mhc.tn.gov.in/judis
