Nadar Mahajana Kilai Sangam vs Balaganesan
2022 Latest Caselaw 8570 Mad

                                                                         S.A.(MD)No.455 of 2010

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 25.04.2022

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            S.A.(MD)No.455 of 2010

                   Nadar Mahajana Kilai Sangam
                   Kundankulam,
                   through its Secretary,
                   Amal Raj,
                   Sanga Office Main Road,
                   Kudankulam,
                   Radhapuram Taluk,
                   Tirunelveli District.               ... Plaintiff / Appellant / Appellant

                                                   -Vs-


                   1.Balaganesan

                   2.Moris                        ... Defendants / Respondents / Respondents

                   3.M.Andrews Navamani                              ... Respondent

                      (R3 is impleaded vide order dated 02.03.2022 made in
                       C.M.P.(MD)No.1728 of 2022)

                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and decree dated 08.06.2006 rendered in
                   A.S.No.19 of 2006 on the file of the Principal Subordinate Judge,
                   Tirunelveli confirming the decree and the judgment dated 18.10.2005
                   rendered in O.S.No.45 of 2001 on the file of the Additional District Munsif
                   Court, Valliyoor.

https://www.mhc.tn.gov.in/judis


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                                                                               S.A.(MD)No.455 of 2010

                                          For Appellant      : Mr.S.Subbiah
                                                               Senior Counsel
                                                               for Mrs.P.Jessi Jeeva Priya
                                          For R1 to R3       : Mr.S.Meenakshi Sundaram
                                                               Senior Counsel
                                                               for Mr.R.T.Arivu Kumar


                                                       JUDGMENT

The plaintiff in O.S.No.45 of 2001 on the file of the Additional

District Munsif Court, Valliyoor is the appellant in this second appeal.

The suit was filed for mandatory injunction directing the defendants to

close the door facing the schedule property.

2. The case of the plaintiff is that the plaint schedule property belongs

to the plaintiff Sangam and that the defendants have no right or title over

the schedule property. Since they attempted to commit encroachment, they

had to file a suit. The defendants filed written statement controverting the

plaint averments. Based on the divergent pleadings, the trial court framed

the necessary issues. On the side of the plaintiff Sangam, its Secretary

examined himself as P.W.1. One Pandian was examined as P.W.2. Ex.A1 to

Ex.A13 were marked. The defendant examined themselves as D.W.1 and

D.W.2 and two other witnesses were examined on their side. Ex.B1 to

Ex.B17 were marked. An Advocate Commissioner was appointed and his https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

report and plan were marked as Ex.C1 & Ex.C2. The photographs were

marked as Ex.C3. After consideration of the evidence on record, the trial

court by judgment and decree dated 18.10.2005 dismissed the suit.

Aggrieved by the same, the plaintiff filed A.S.No.19 of 2006 before the

Principal Sub Court, Tirunelveli. By the impugned judgment and decree

dated 08.06.2006, 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. Though the second appeal was filed way back in the year

2010, only notice was ordered and it was not admitted till date.

3. The learned Senior Counsel appearing for the appellant submitted

that the case on hand involves more than one substantial question of law.

He pointed out that the trial court had given a categorical finding that the

second defendant has no right whatsoever over the schedule property.

Though this finding was adverse to the second defendant, he had not chosen

to file any cross objection before the first appellate court under Order 41

Rule 22 of C.P.C. It is true that the first appeal also ended against the

plaintiff. The contention of the learned Senior Counsel appearing for the

appellant is that since the second defendant did not file any cross objection

before the court below, he cannot be permitted to attack the said finding

before this Court. In this regard, the learned Senior Counsel placed reliance https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

on the decisions reported in 2010 (7) SCC 717 (Laxman Tatyaba Kankate

and another Vs. Taramati Harichandra Dhatrak) and (2018) 10 SCC 584

(Biswajit Sukul Vs. Deo Chand Sarda & others). He would further contend

that the courts below did not construe Ex.A1 & Ex.B16 correctly. If both

the documents are properly construed, it would lead to irresistible

conclusion that the schedule property was already gifted by A.C.Pal Nadar

in favour of the plaintiff Sangam under Ex.A1 and that the suit property was

specifically excluded while executing Ex.B16-sale deed dated 15.01.1933.

4. Per contra, the learned Senior Counsel appearing for the contesting

respondents submitted that the impugned judgment and decree do not call

for any interference.

5.The learned Senior Counsel appearing for the contesting

respondents submitted that the finding that the contesting defendant does

not have any right over the suit property is incorrect. This endeavor on the

part of the learned Senior Counsel appearing for the contesting respondents

was strongly opposed by the learned Senior Counsel appearing for the

appellant by referring to the aforesaid decisions.

6. Now the question that calls for consideration is whether the https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

contesting respondent can be allowed to challenge the findings of the trial

court, even though he did not file any cross objection before the first

appellate court. I must straight away note that the precedents relied on by

the learned Senior Counsel appearing for the appellants squarely support

his contention. But then, a recent decision of the Hon'ble Supreme Court

reported in CDJ 2021 SC 513 (Saurav Jain and another Vs.

M/s.A.B.P.Design and another) holds that where the respondent in appeal

is not aggrieved by the impugned decree, it is open to him to attack the

findings of the court below even without filing any memorandum of cross

objection. It is true that the recent decision reported in CDJ 2021 SC 513

does not refer to the decisions relied on by the learned Senior Counsel

appearing for the appellant. However, the recent decision in turn follows an

earlier ruling of the Hon'ble Supreme Court reported in (2003) 9 SCC 606

(Banarsi Vs.Ram Phal). It is interesting to note that the Bench-strength in

all these decisions is same ie., two Judges. Where the precedents of the

superior court are apparently not in consonance with each other, it is open

to the High Court to follow the later ruling if it reflects the correct legal

position. I am therefore inclined to follow the latest decision of the Hon'ble

Supreme Court and hold that it is open to the contesting respondent herein

to attack the findings of the court below, even though he did not file any

cross objection.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

7. The suit property was a part of the larger extent of the property

measuring 5 ½ cents. It belonged to one A.C.Pal Nadar. He had gifted

10 ½ cents and the schedule property in favour of the plaintiff under Ex.A1,

dated 16.05.1924. The predecessor-in-title of the defendants purchased the

remaining extent of land from the said A.C.Pal Nadar under Ex.B16-sale

deed dated 15.01.1933. The property gifted to the plaintiff Sangam under

Ex.A1 refers to 10 ½ cents of land situated on the northern side. It also

states that Sangam will be entitled to the pathway running through the

middle of the remaining 5 ½ cents of the donor. When the predecessor-in-

title of the defendants made his purchase under Ex.B16, the pathway gifted

to the Sangam was specifically included. It is on this basis the trial court

came to the conclusion that the defendants do not have any right over the

schedule property, though the suit was dismissed on a technical ground.

8. From the plan submitted by the Advocate Commissioner, the trial

court came to the conclusion that apart from the extent occupied by the

Sangam under Ex.A1 and the construction put up by the defendants, there

still remained 0.82 cents of land on ground. The trial court conjectured that

this could very well be lying between the built up portion of the defendants

and the schedule property. In which event, the defendants will be entitled to https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

use the same. Only if the boundaries are fixed, the issue raised by the

plaintiff can be resolved. Since such a relief was not sought, the trial court

denied the relief of mandatory injunction sought for by the plaintiff. The

first appellate court also endorsed the approach of the trial court. Since this

issue turns essentially on facts, I am of the view that no substantial question

of law really arises for consideration.

9. There is yet another aspect of the matter. Even under Ex.A1, what

was gifted in favour of the plaintiff Sangam was 10 ½ cents of land lying on

the northern side of the suit pathway. The plaintiff may describe the

pathway in question as a schedule property. But even in Ex.A1, it has been

described only as 20 links pathway.

10. The learned Senior Counsel appearing for the contesting

respondent pointed out that in Ex.A1, the suit pathway has been created out

of the 5 cents of land remaining with the donor. Thus, what was given to

the plaintiff Sangam was only a pathway. Of-course, the property sold by

A.C.Pal Nadar under Ex.B16 is bounded on the east and on the west by the

suit pathway. The second defendant had purchased the western portion

during the pendency of these proceedings. Thus, the eastern boundary of

the second defendant is a suit pathway. Even going by the plaintiff's case, https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

when the pathway forms a boundary, certainly, it is open to the second

defendant to have the door opening into the pathway. Of-course, the second

defendant cannot commit any encroachment on the suit pathway. But then,

his right to open the door on the suit pathway cannot be denied. A person

can be restrained from opening the window or door only if it affects the

civil rights of the adjacent owner. Admittedly, the schedule property is the

character of a pathway. Therefore, by opening the door in question, the

right of the plaintiff is not in any way affected. No substantial question of

law arises for determination. The impugned judgment and decree is

confirmed. The second appeal is dismissed. No cost.

25.04.2022

Internet : Yes/No Index : Yes/No rmi

To

1.The Principal Subordinate Judge, Tirunelveli.

2.The Additional District Munsif Court, Valliyoor.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.455 of 2010

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.455 of 2010

25.04.2022

https://www.mhc.tn.gov.in/judis