Madras High Court
Thirunavukkarasu (Died) vs Udayakumar on 1 March, 2022
S.A.(MD)No.323 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.323 of 2010
1.Thirunavukkarasu (Died)
2.T.Kothai
3.S.Umadevi
4.T.Sivakumar
5.M.Thennagaselvi ... Appellants
(Appellants 2 to 5 are suo motu brought on record as
the legal heirs of the deceased/first appellant vide
order dated 25.02.2022 in S.A.(MD)No.323 of 2010)
Vs.
1.Udayakumar
2.Karnan ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 06.10.2009 passed in A.S.No.97 of 2005
on the file of the Sub Court, Sivagangai, confirming the judgment and decree
dated 23.09.2005 passed in O.S.No.250 of 2004 on the file of the Principal
District Munsif Court, Sivagangai.
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S.A.(MD)No.323 of 2010
For Appellants : Mr.K.Anbarasan
For Respondents : Mr.P.Prabhakaran for R1
JUDGEMENT
The first defendant in O.S.No.250 of 2004 on the file of the Principal
District Munsif Court, Sivagangai is the appellant in this second appeal. The
first respondent herein filed the said suit seeking the relief of bare injunction.
The first appellant herein filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial Court framed the
necessary issues.
2.The plaintiff/Udayakumar examined himself as P.W.1 and three others
were examined on his side. Exs.A1 to A7 were marked. The first appellant/
Thirunavukkarasu examined himself as D.W.1 and one Krishnamoorthy was
examined as D.W.2. Exs.B1 to B11 were marked. An advocate commissioner
was appointed and his report and plan were marked as Exs.C1 and C2.
3.After consideration of the evidence on record, the trial Court by
judgment and decree dated 23.09.2005 decreed the suit as prayed for.
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S.A.(MD)No.323 of 2010
Aggrieved by the same, the first appellant herein filed A.S.No.97 of 2005
before the Sub Court, Sivagangai. By the impugned judgment and decree dated
06.10.2009, the decision of the trial Court was confirmed and the appeal suit
was dismissed. Challenging the same, this second appeal came to be filed.
4.Even though the second appeal was filed way back in the year 2010,
till date it has not been admitted. During the pendency of the second appeal,
the sole appellant passed away and his legal heirs have come on record. The
learned counsel for the appellants reiterated all the contentions set out in the
memorandum of grounds and called upon this Court to frame substantial
question of law and admit this second appeal and take it up for disposal later.
5.Per contra, the learned counsel for the first respondent submitted that
no substantial question of law arises for consideration.
6.I carefully considered the rival contentions and went through the
evidence on record. The primary argument of the learned counsel for the
appellants is that the natham patta issued in favour of the plaintiff under Ex.A1
came to be set aside by proceedings dated 20.11.2000 issued by the District
Revenue Officer, Sivagangai (Ex.B1). His contention is that the Courts below
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S.A.(MD)No.323 of 2010
granted the relief of permanent injunction on the strength of a cancelled
document. He therefore wanted this Court to interfere in the matter.
7.No doubt the contention of the learned counsel for the appellants is
quite persuasive. But the issue on hand turns on simple factum of possession.
The first respondent herein filed a suit for bare injunction for protecting his
possession. Therefore, the only question that has to be gone into is whether the
plaintiff was in possession of the suit property on the date of filing of the suit.
The suit was filed some time in the year 2004. The suit property measures
4 cents of land. No doubt, the patta granted in favour of the plaintiff was
cancelled on 20.11.2000 itself. However, the Courts below have pointed out
that steps have not been taken by the authorities for evicting the plaintiff or
resuming possession. The proceeding of the Thasildar, Sivagangai was issued
on 13.04.1999. Based thereon, patta and chitta were also issued in favour of
the plaintiff. The cancellation took place only in November 2000. But till date,
the name of the plaintiff is reflected in the village records. The order of
cancellation has not been carried out or reflected in the village records. That
apart, the plaintiff had proved that he had erected stones and also fenced the
property. There is also a small thatched house located thereon. After going
through the advocate commissioner's report and plan and other materials on
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S.A.(MD)No.323 of 2010
record, the Courts below have concurrently found that the plaintiff is in
possession. It is basically a question of fact. The inference of the Courts
below has not been shown to be perverse. No material has been placed to
dislodge the finding of the Courts below that the plaintiff is in possession of
the suit property. No substantial question of law arises for consideration and
the second appeal is dismissed. No costs.
01.03.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Sub Court,
Sivagangai.
2.The Principal District Munsif Court,
Sivagangai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.323 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.323 of 2010
01.03.2022
https://www.mhc.tn.gov.in/judis
