Ponmani vs Rasal @ Rasalraj
2022 Latest Caselaw 9054 Mad

                                                                              S.A.(MD)No.915 of 2010

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 28.04.2022

                                                        CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.915 of 2010

                    Ponmani                               ... Appellant / Appellant / Plaintiff

                                                        -Vs-


                   Rasal @ Rasalraj                     ... Respondent / Respondent / Defendant

                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and decree dated 19.07.2010 made in A.S.No.
                   128 of 2007 on the file of the Principal Sub Court, Nagercoil, confirming
                   the judgment and decree dated 17.08.2007 made in O.S.No.195 of 2000 on
                   the file of the Principal District Munsif Court, Nagercoil.


                                        For Appellant          : Mr.A.Arumugam
                                                                for M/s.Ajmal Associates
                                        For Respondent         : Mr.S.Meenakshi Sundaram
                                                                Senior Counsel
                                                                for Mr.C.Godwin


                                                   JUDGMENT

The plaintiff in O.S.No.195 of 2000 on the file of the Principal

District Munsif Court, Nagercoil is the appellant in this second appeal. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.915 of 2010

2. The suit was filed for the relief of permanent injunction restraining

the defendant and his men from disturbing the plaintiff's peaceful

possession over the suit property. The defendant filed written statement

controverting the plaint averments. The defendant also raised counter claim

for mandatory injunction directing the plaintiff to remove the encroachment

committed on 10 cents of the suit property. Based on the divergent

pleadings, issues were framed. The plaintiff examined himself as P.W.1 and

one Murugappan was examined as P.W.2. Ex.A1 to Ex.A23 were marked.

The defendant examined himself as D.W.1. Ex.B1 to Ex.B20 were marked.

An Advocate Commissioner was appointed and his interim and final reports

were marked as Ex.C1 to Ex.C4. After consideration of the evidence on

record, the trial court by judgment and decree dated 17.08.2007 dismissed

the suit as regards Survey No.489/6a but granted permanent injunction in

respect of Survey No.489/6b. As regards counter claim, the trial court

directed the plaintiff to remove the encroachment committed on 10 cents in

Survey No.489/6a. Aggrieved by the same, the plaintiff filed A.S.No.128

of 2007 before the Principal Sub Court, Nagercoil. By the impugned

judgment and decree dated 19.07.2010, the decision of the trial court was

confirmed. Challenging the same, this second appeal came to be filed.

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

S.A.(MD)No.915 of 2010

3. Heard the learned counsel appearing for the appellant and the

learned senior counsel appearing for the respondent.

4. The plaintiff / appellant claims title over the suit property by virtue

of the sale deed dated 21.10.1999 executed by Bhagavathiammal

D/o.Boothanatha Pillai. The said Boothanatha Pillai was one of the three

sons of Azhagia Padmanabha Pillai. Azhagia Padmanabha Pillai had

executed a Will dated 11.01.1955 in favour of three sons. Based on the

same, the partition suit was filed in O.S.No.1456 of 1984 on the file of the

Additional Sub Court, Nagercoil. Preliminary decree was passed therein on

31.07.1989, while final decree came to be made on 15.06.2005. As per the

preliminary decree as well as the final decree, the western portion of the

property bequeathed under the said Will was allotted in favour of

Sivasubramanian branch, while the middle portion was allotted to

Sivathanu Pillai, while the eastern portion was allotted to Boothanatha

Pillai. It is not in dispute that Sivasubramania Pillai owned properties to

the north of the property covered under the said Will in his independent

capacity.

5. The case of the defendant herein is that the property purchased by

him from Usha @ Backiam D/o.Sivasubramania Pillai through sale deed lay https://www.mhc.tn.gov.in/judis

S.A.(MD)No.915 of 2010

to the north of the Will property. According to the learned senior counsel

appearing for the respondent, the property that is referred to his northern

portion in O.S.No.1456 of 1984 is actually comprised in Survey No.489/6a,

whereas the property covered by Will lies in Survey No.489/6b and on its

immediate western side. Unfortunately, in this case, the appellant herein

failed to seek any declaratory relief. Likewise, the respondent also merely

sought the counter claim of mandatory injunction without asking for any

declaratory relief.

6. I have before me two options. I can negative the claims of both the

parties or to render substantial justice, the matter can be remanded so that

the property that is covered under the Will as well as the sale deed that

originally belonged to Sivasubramania Pillai can be located with reference

to the relevant survey records and Government records.

7. The learned counsel appearing for the appellant as well as the

learned senior counsel appearing for the respondent, on instructions,

submitted that they have no objection for remanding the matter. Of-course,

the learned counsel appearing for the appellant would assert that the

property covered under the Will executed by Azhagia Padmanabha Pillai

pertains to 10 cents of land in the present Survey No.489/6A. In order to https://www.mhc.tn.gov.in/judis

S.A.(MD)No.915 of 2010

resolve the issue finally, the matter has to be necessarily remitted. Since

there is consensus between the parties, the impugned judgment and decree

are set aside and the matter is remanded to the file of the trial court. The

learned trial Judge is directed to appoint an Advocate Commissioner who

would determine the location and lie of the property covered under Ex.B2,

Ex.B4, Ex.B5 & Ex.A13. The Advocate Commissioner shall carry out the

exercise of identification, location and measurements with reference to the

survey and revenue records. The parties shall appear before the court below

on 17.06.2022.

8. The second appeal is allowed on these terms. No cost.

28.04.2022

Internet : Yes/No Index : Yes/No rmi

To

1.The Principal Sub Court, Nagercoil.

2.The Principal District Munsif Court, Nagercoil.

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.915 of 2010

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.915 of 2010

28.04.2022

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