Madras High Court
Palanisamy vs Ponnusamy Gounder on 15 June, 2022
S.A.Nos.705 of 2011 & 1061 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.Nos.705 of 2011 & 1061 of 2012
and
M.P.Nos.1 of 2011 & 1 of 2012
S.A.No.705 of 2011
Palanisamy ...Appellant
Vs.
1.Ponnusamy Gounder
2.Palanisamy
3.Sokkeswari
4.Rajammal
5.Thangamani ...Respondents
Prayer: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 30.09.2010 made in A.S.No.23 of 2004 on the
file of the Sub-ordinate Court, Namakkal confirming the judgment and
decree dated 29.04.2004 made in O.S.No.676 of 1997 on the file of the
Principal District Munsif Court, Namakkal.
https://www.mhc.tn.gov.in/judis
S.A.Nos.705 of 2011 & 1061 of 2012
S.A.No.1061 of 2012
Pulli Kounder(died)
1.Kandasamy
2.Palanisamy
3.Kaliammal
4.Thangammal ...Appellants
Vs.
Periasamy (died)
Muthayee (died)
1.Sokkeswari
2.Rajammal
3.Thangamani
4.Palanisamy
5.Minor Gokul ...Respondents
Prayer: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 03.12.2011 made in A.S.No.3 of 2011 on the file
of the Additional District Court, Namakkal, Fast Track Court, Namakkal
confirming the judgment and decree dated 29.04.2004 made in O.S.No.43 of
1999 on the file of the Principal District Munsif Court, Namakkal.
For Appellants in both SA : Mr.K.Kalyanasundaram
Senior Counsel for
Mr.R.Vasudevan
For Respondents in both SA : Mr.S.Balasubramanian
for R2, R3 & R5
R1 & R4 – No Appearance
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S.A.Nos.705 of 2011 & 1061 of 2012
COMMON JUDGMENT
The plaintiff in O.S.No.676 of 1997 on the file of the Principal
District Munsif Court, Namakkal who had suffered a decree dated
29.04.2004 and also an adverse judgment in A.S.No.23 of 2004 before the
Sub-Court at Namakkal dated 30.09.2010 is the appellant in S.A.No.705 of
2011.
2.The 2nd and 3rd defendants in O.S.No.43 of 1999 again before
the Principal District Munsif Court at Namakkal, who had again suffered a
decree dated 29.04.2004 and also an adverse finding in A.S.No.3 of 2011
dated 03.12.2011 are the appellants in S.A.No.1061 of 2012.
3.O.S.No.676 of 1987 had been filed by the plaintiff / appelant
herein, Palanisamy seeking declaration and permanent injunction with
respect to the suit schedule property. The suit in O.S.No.43 of 1999 had
been filed by the respondents seeking mandatory injunction that the
defendants therein should close the pit put up in the pathway and also
permanent injunction restraining the defendants from interfering with
enjoyment of such pathway and for consequential reliefs.
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S.A.Nos.705 of 2011 & 1061 of 2012
4.Simultaneous trials were conducted in both the suits. O.S.No.43
of 1999 was decreed by judgment dated 29.04.2004 and the said judgment
was confirmed in the First Appeal by judgment dated 03.12.2011.
O.S.No.676 of 1987 was dismissed by judgment dated 29.04.2004 and it
was confirmed in A.S.No.23 of 2004 by judgment dated 19.04.2010.
5.Both the Second Appeals have not yet been admitted and only
notices were directed to the respondents.
6.Heard Mr.K.Kalyanasundaram, learned Senior Counsel
appearing for the appellants and Mr.S.Balasubramanian, learned counsel
appearing on behalf of the respondents.
7.Even at the outset, the learned Senior Counsel stated that he is
not pressing any further relief in S.A.No.705 of 2011 which had been filed
consequent to dismissal of O.S.No.676 of 1997 by the District Munsif Court
at Namakkal and as a matter of fact, the entire issue sorrounds issues on
facts and therefore, I would straight away dismiss S.A.No.705 of 2011 as no
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S.A.Nos.705 of 2011 & 1061 of 2012
substantial questions of law arise.
8.With respect to S.A.No.1061 of 2012 wherein, the appellants
were the 2nd and 3rd defendants in the suit in O.S.No.43 of 1999, it is pointed
out that a rough sketch had been given as a aprendage to the plaint and the
lay of land on the ground had also been explained in the Commissioner's
report and sketch which had been marked as Ex.C1.
9.It is pointed by the learned Senior Counsel appearing on behalf
of the appellants that along with the plaint, a rough sketch had been filed
wherein, it had been stated that the pathway, XX1 was to a width of 12 feet.
It had been however stated that the Commissioner, in his report and in the
sketch did not find that the pathway was 12 feet but rather had given the
measurements in links and an approximate conversion would indicate that
the width is only about 7-8 feet.
10.That is an issue of fact and I would not interfere with the same
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S.A.Nos.705 of 2011 & 1061 of 2012
or express any opinion on the same.
11.However, only the relief of mandatory injunction alone has
been granted to the plaintiff mainly to remove or close the pit which has
been alleged to have been put up in that particular pathway given as XX1 in
the rough sketch of the plaint.
12.Mr.K.Kalyanasundaram, learned Senior Counsel took umbrage
of the decree stating that in the decree it had been given that the pathway
was to a width of 12 feet overlooking the Commissioner's report. Learned
Senior Counsel stated that the said finding alone should be interfered with
by this Court.
13.It is pointed out that the said measurement of 12 feet width had
not been mentioned in the Commissioner's report which had also filed as a
document and any evidence adduced during the course of trial should have
been appreciated and the learned District Munsif and also the first Appellate
Court should have appreciated the evidence on record particularly, the rough
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S.A.Nos.705 of 2011 & 1061 of 2012
sketch and report filed by the Commissioner.
14.A Commissioner is appointed under Order 26 Rule 9 of C.P.C.,
to conduct physical verification and file a report of the lay of land. The
Commissioner is an extended arm of the Court. I hold that if a report had
been filed and if no objections had been filed to such a report and if such
report and sketch had also been produced by the Commissioner as
documents and had been admitted and proved in manner known to law then,
the decree should follow such evidence and not a rough sketch apprended to
the plaint.
15.This is the only issue taken up by the learned Senior counsel
appearing on behalf of the appellant.
16.It must be noticed that the first Appellate Court in A.S.No.3 of
2011 had not given the measurements but still, the learned Senior Counsel
pointed out that the first Appellate Court had, in the course of its judgment
stated that the decree of the Trial Court had been confirmed which could be
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S.A.Nos.705 of 2011 & 1061 of 2012
interpreted that the pathway is of the width of 12 feet.
17.I would interfere with the decree and direct the Trial Court to
pass a decree in accodance with the measurements given in Ex.C1 and
remove the width of the pathway XX1 given as 12 feet and rather give the
width in actual terms as found in Ex.C1.
18.To that extent alone, the decree of the Trial Court is modified
since there are no substantial questions of law arising in the appeal, the
appeal stands dismissed except for that particular clarification..
19.The Trial Court may issue a fresh decree copy in accodance
with the observations made by this Court.
20.Both the Second Appeals are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
15.06.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking / Non-speaking order
To:-
https://www.mhc.tn.gov.in/judis
S.A.Nos.705 of 2011 & 1061 of 2012
1.The Sub-Court,
Namakkal.
2.The Principal District Munsif Court,
Namakkal.
3.The Additional District Court,
Namakkal.
https://www.mhc.tn.gov.in/judis
S.A.Nos.705 of 2011 & 1061 of 2012
C.V.KARTHIKEYAN, J.
KKN
S.A.Nos.705 of 2011 & 1061 of 2012
and M.P.Nos.1 of 2011 & 1 of 2012
15.06.2022
https://www.mhc.tn.gov.in/judis
