Madras High Court
Pitchai vs Thirumalaikolunthu on 22 April, 2022
S.A.(MD)No.711 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.711 of 2010
1.Pitchai
2.Pitchammal
3.Malliga
4.Pitchai Murugan
5.Subbuthayammal ... Appellants / Appellants / Plaintiffs 2 to 6
-Vs-
1.Thirumalaikolunthu
2.Packiyam @ Ramalingam
3.Thangam
4.The District Collector,
Virudhunagar District Collector Office,
Virudhunagar District. ... Respondents / Respondents / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the Judgment and decree in A.S.No.25 of 2007, dated
31.12.2009 on the file of the Sub Court, Srivilliputhur, Virudhunagar
District confirming the judgment and decree in O.S.No.329 of 1999, dated
21.03.2006 on the file of the Additional District Munsif Court,
Srivilliputhur, Virudhunagar District.
https://www.mhc.tn.gov.in/judis
1/7
S.A.(MD)No.711 of 2010
For Appellants : Mr.R.Aravindan
For R1 & R2 : Mr.A.Murugan
for Mr.V.Pavel
For R3 : no appearance
For R4 : Mr.Raghavendran
Government Advocate
JUDGMENT
The plaintiffs in O.S.No.329 of 1999 on the file of the Additional
District Munsif Court, Srivilliputhur are the appellants in this second
appeal.
2. The suit was filed for declaring that the suit 2nd and 3rd schedule
items belong to the plaintiffs and that the defendants should not interfere
with the plaintiff's possession and enjoyment of the same. The plaintiff also
wanted the encroachment in the suit 2nd and 3rd schedule to be removed.
3. The case of the plaintiff is that the suit 2nd and 3rd schedule form
part of the suit 1st schedule. It originally belonged to Parvathy Ammal. The
said Parvathy Ammal sold the same to Muthusamy Pillai on 11.05.1931
Muthusamy Pillai in turn sold it to his wife Ponnammal. Ponnammal had
two sons namely Subramaniapillai @ Veluchamy and Ponnusamy. The
parents passed away. The southern portion was enjoyed by Veluchamy.
The northern portion was enjoyed by Ponnusamy. According to the
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.711 of 2010
plaintiffs, Veluchamy Pillai had set apart 6 feet wide pathway for his
personal access. The plaintiffs 2 to 6 are the children of Veluchamy Pillai.
The defendants 1 to 4 are residing in the vicinity. The allegation of the
plaintiffs was that the defendants are trying to encroach upon the 6 feet
wide pathway that was maintained by the plaintiffs for their own use. It
was further alleged that the encroachment have been committed thereon.
Seeking declaration and removal of the encroachment, the suit was filed.
The contesting defendants filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed as
many as six issues. During the pendency of the suit, Veluchamy Pillai
passed away. His son / second plaintiff examined himself as P.W.1. A junior
assistant working in the office of the Tahsildar, Rajapalayam was examined
as P.W.2. The first defendant examined himself as D.W.1. Ex.A1 to Ex.A9
were marked. Ex.B1 & Ex.B2 were also marked. An Advocate
Commissioner was appointed and his report and plan were marked as Ex.C1
to Ex.C3. After considering the evidence on record, the trial court by
judgment and decree dated 21.03.2006 dismissed the suit. Challenging the
same, the plaintiffs filed A.S.No.25 of 2007 before the Sub Court,
Srivilliputhur. By the impugned judgment and decree dated 31.12.2009, 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.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.711 of 2010
Though the second appeal was filed as early as in the year 2010, only notice
was ordered and it has not been admitted till date.
4. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to frame the substantial question of law and admit the appeal and then
take it up 'for disposal'.
5. Per contra, the learned counsel appearing for the private
respondents as well as the learned Government Advocate appearing for R4
submitted that no substantial question of law arises for consideration.
6. Even though the District Collector, Virudhunagar was impleaded as
4th defendant, no written statement was filed. However, it is seen that the
revenue official was examined as P.W.2 and the survey sketch was also
marked. I therefore called upon the learned Government Advocate to obtain
a report from the jurisdictional Tahsildar and also make available the
relevant revenue documents. In response to the same, the learned
Government Advocate today filed a report bearing
Na.Ka.No.A4/4332/2022, dated 21.04.2022 given by the Tahsildar,
Rajapalayam. The relevant government record, survey sketches including
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.711 of 2010
'A' register enclosed along with the said report. Even though Order 7 Rule
3 states that where the subject matter of the suit is an immovable property
and in case such property can be identified by numbers in a record of
settlement or survey, the plaint shall specify such numbers, in this case,
survey numbers have not at all been given.
7. Since the defendants have not disputed the identity of the property,
I do not want to non-suit the plaintiff on this ground. The courts below
have concurrently rendered a finding that the plaintiff has not established
that the suit schedule 2 and 3 belong to him exclusively. The first appellate
court is the final court of fact and the appellants have not been able to
demonstrate that the said findings are erroneous or perverse. Be that as it
may, the survey sketch marked before the court below as well as the
revenue record now made available before me clearly indicate that Survey
No.220 was later sub-divided into Survey Nos.220, 258, 259, 260, 261,
262, 263, 264 & 265 under Natham Land Survey and Settlement Scheme
Survey No.265/4 has been classified as pathway. Survey No.265/3 has been
shown as a vacant site and classified as Government Poromboke. It is now
seen that the suit schedules 2 and 3 correspond to Survey Nos.265/3 and
265/4. Thus, the findings of the courts below are very much in consonance
with the revenue records now made available before me. No substantial
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.711 of 2010
question of law arises for consideration. The second appeal is dismissed.
However, I must observe that encroachments cannot be permitted in both
the survey numbers. No cost.
22.04.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Srivilliputhur, Virudhunagar District.
2.The Additional District Munsif Court, Srivilliputhur,
Virudhunagar District.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN.J.,
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.711 of 2010
rmi
Judgment made in
S.A.(MD)No.711 of 2010
22.04.2022
https://www.mhc.tn.gov.in/judis
