Madras High Court
R.Lakshmana Perumal (Died) vs Kanyakumari Oor Vellalar ... on 1 March, 2022
S.A.(MD)No.326 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.326 of 2010
and
M.P.(MD)No.1 of 2010
1.R.Lakshmana Perumal (Died)
2.Chellammal
3.Rajapandian ... Appellants
(Appellants 2 and 3 are brought on record as the
legal heirs of the deceased/first appellant vide order
dated 13.09.2013 made in M.P.(MD)Nos.1 to 3 of
2013 in S.A.(MD)No.326 of 2010 by RKJ)
Vs.
1.Kanyakumari Oor Vellalar Samudhaya
Vakai Trust,
Rep. by its President,
P.Pichaimoni.
1.Kanyakumari Oor Vellalar Samudhaya
Vakai Trust,
Rep. by its Secretary,
P.Krishna Pillai. ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.59 of 2008 on the file of the
I Additional Subordinate Court, Nagercoil, dated 16.12.2009, confirming the
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S.A.(MD)No.326 of 2010
judgment and decree passed in O.S.No.359 of 2003 on the file of the Principal
District Munsif Court, Nagercoil, dated 02.08.2006.
For Appellants : Mr.M.P.Senthil
For Respondents : Mr.K.Sakthivel,
For Mr.R.Sundar
JUDGEMENT
The unsuccessful defendant in O.S.No.359 of 2003 on the file of the
Principal District Munsif Court, Nagercoil is the appellant in this second
appeal. The respondents herein are admittedly the owners of the suit property.
They had leased out a specific plot measuring 10 feet x 10 feet in favour of
Lakshmana Perumal, the original defendant on payment of monthly ground rent
of Rs.125/-. The specific allegation of the plaintiffs is that the defendant
instead of confining his occupation to the leased out area committed
encroachment beyond. He is said to have to put up construction even beyond
the leased out area. In order to prevent the defendant from putting up any
further construction and to remove the construction that has been
unauthorizedly put up, the suit came to be filed. The defendant contended that
what was leased out was an area measuring 12 feet north-south and 18 feet
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S.A.(MD)No.326 of 2010
east-west. According to him, he has not committed any act of encroachment.
Based on the divergent pleadings, the trial Court framed the necessary issues.
2.On side of the plaintiffs, one Pitchaimoni was examined as P.W.1 and
Exs.A1 to A6 were marked. The defendant examined himself as D.W.1 and
marked Exs.B1 to B3.
3.After consideration of the evidence on record, the trial Court by
judgment and decree dated 02.08.2006 decreed the suit as prayed for.
Aggrieved by the same, the defendant filed A.S.No.59 of 2008 before the
I Additional Sub Court, Nagercoil. By the impugned judgment and decree
dated 16.12.2009, the first appellate Court confirmed the decision of the trial
Court and dismissed the appeal suit. Challenging the same, this second appeal
came to be filed.
4.Even though the second appeal has been filed way back in the year
2010, it has not been admitted till date. During the pendency of the second
appeal, the original defendant passed away and his legal heirs namely,
Chellammal and Rajapandian have come on record as the second and third
appellants.
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S.A.(MD)No.326 of 2010
5.The learned counsel for the appellants reiterated all the contentions set
out in the memorandum of grounds and wanted this Court to admit the second
appeal and after framing the substantial question of law take it up for disposal
later.
6.Per contra, the learned counsel for the respondents submitted that no
substantial question of law arises for consideration.
7.I carefully considered the rival contentions and went through the
evidence on record. Even according to the plaintiffs, the defendant has been
given a definite plot measuring 10 feet x 10 feet. The defendant on the other
hand contended that the leased out area was much more. According to him, it
measures 12 feet x 18 feet. Therefore, the onus lay on the defendant to prove
that a larger extent was leased out. In any event, when the Courts below have
found that the leased out area was 10 feet x 10 feet and the said finding has not
been shown to be perverse, I do not want to interfere with the same. The first
appellate Court is the final Court of fact. No substantial question of law arises
for consideration and the second appeal is dismissed. In other words, the
possession and enjoyment of the appellants' over the leased out area measuring
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S.A.(MD)No.326 of 2010
10 feet x 10 feet stands fully protected. No costs. Consequently, connected
miscellaneous petition is closed.
01.03.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The I Additional Sub Court,
Nagercoil.
2.The Principal District Munsif Court,
Nagercoil.
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.326 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.326 of 2010
01.03.2022
https://www.mhc.tn.gov.in/judis
