Madras High Court
Munirathinam vs P.Kesavan on 2 March, 2022
S.A.No.680 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.03.2022
Coram:
THE HONOURABLE Mr.JUSTICE N.ANAND VEKATESH
Second Appeal No.680 of 2014
Munirathinam ..Plaintiff/Appellant/Appellant
.Vs.
1.P.Kesavan
2.Nagarajan ..Defendants/Respondents/Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against
the judgment and decree made in A.S.No.117/2012 dt.09.04.2014 on the file of
Subordinate Court, Vellore confirming the decree and judgment passed in
O.S.No.1889/2004 dated 05.11.2004 on the file of Principal District Munsif Court, Vellore.
For Appellant : Mr.M.P.Jayaprakash
For Respondents : Mr. M.S.Murali
for R&P Partners
for R1 and R2
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S.A.No.680 of 2014
JUDGMENT
The plaintiff is the appellant in this Second Appeal.
2.The case of the plaintiff is that he is the owner of the property described in “A”
schedule to the plaint and he purchased the same through a registered Sale Deed dated
17.05.1990 from one Rajammal. The further case of the plaintiff is that the property
described in the “B” schedule to the plaint is the pial portion which forms part of the “A”
schedule property and it is through this portion, the plaintiff is having access to his
property described in the “A” schedule.
3.The grievance of the plaintiff is that the defendants attempted to put up a bunk
in the “B” schedule property inspite of the protest made by the plaintiff and hence, left
with no other option, the suit was filed against the defendants seeking for the relief of
permanent injunction and mandatory injunction
4.The defendants filed a written statement. They took a specific defense to the
effect that the plaintiff purchased the “A” schedule property and 1/3rd share in the pial
portion from the said Rajammal. The defendants have specifically denied that the enire
pial portion forms part of the “A” schedule property. Thus, the defendants took a stand
that they have 2/3rd share in the said pial portion. The defendants further stated that the
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S.A.No.680 of 2014
pial portion has been jointly enjoyed by the plaintiff and the defendants and the
defendants are running tiffen stall and a petty shop in the portions marked as 'CDEF' and
'ABCD' described in the sketch filed along with the written statement and according to
them, these portions fall within their 2/3rd share in the pial portion. The defendants have
therefore sought for the dismissal of the suit on the ground that the plaintiff has no right
to claim for the exclusive right in the entire pial portion which was shown as the “B”
schedule property.
5.Both the Courts below after analysing the facts and circumstances of the case
and after having taking into consideration the facts and circumstances of the case
concurrently came to a conclusion that the plaintiff is not entitled for the relief sought for
in the suit. Aggrieved by the same, the plaintiff has filed the present Second Appeal
before this Court.
6.The learned counsel for the appellant submitted that even though the “B”
schedule property is enjoyed in common, at no point of time, there was any partition and
allotment of the 1/3rd share to each of the sharer. The learned counsel further submitted
that the defendants attempted to put up the bunk Shop and thereby prevented the
plaintiff from ingress and egress to his property in the “A” schedule. It was further
submitted that the defendants right from the beginning have been preventing the plaintiff
from enjoying the property and even the earlier suit filed by them was dismissed and
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S.A.No.680 of 2014
confirmed till this Court in S.A.No.77 of 2005. Having failed in their attempts, the
defendants are once again preventing the access of the plaintiff to the “A” schedule
property. The learned counsel therefore submitted that the findings of both the Courts
below requires the interference of this Court.
7.This Court carefully considered the submissions made on either side and the
materials available on record. This Court also carefully considered the findings of both
the Courts below.
8.It is an admitted case that the appellant had purchased the property with a right
of passage over a common lane lying on the eastern side of the “A” schedule property
and 1/3rd in the pial lying in between the tiled house purchased by the plaintiff (“A”
schedule property) and the street known as Beri Babu Rao Street, through a registered
Sale Deed dated 07.05.1990 [Ex.A-1] from one Rajammal. This position has been
specifically admitted even by the defendants in their written statement. Thus, the
property described in the “B” schedule belongs jointly to the plaintiff and the defendants
and each has 1/3rd share in the same.
9.The grievance of the plaintiff seems to be that his access through the “B”
schedule property to reach the “A” schedule property is blocked by the defendants by
putting up a bunk Shop. While considering this issue, both the Courts found that the
bunk Shop was already put up by the defendants in the portions which were described as
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S.A.No.680 of 2014
'CDEF' and 'ABCD' in the sketch filed along with the written statement. In the very same
sketch, the 1/3rd share of the plaintiff in the pial portion was described as 'GHIJ'. The
defendants had specifically admitted that the portion earmarked as 'GHIJ' in the sketch
filed along with the written statement belongs to the plaintiff and this allocation was
made between the parties in a panchayat that was held on 07.08.2004.
10.Both the Courts took into consideration the fact that even in the deposition, the
plaintiff had stated that he is having an access to the property in the “A” schedule from
Beri Babu Rao Street only through the portion shown as 'GHIJ' in the sketch.
11.The Courts below took into consideration the fact that the defendants have
been running the bunk Shop after getting proper permission from the authorities and
Ex.B-2 and Ex.B-4 were taken into consideration to substantiate the fact that there was
even an electricity connection provided to these bunk Shops. When Ex.B-8 to Ex.B-10
photographs were shown to the plaintiff during the course of cross examination, he
admitted that the defendants were running the bunk Shop in their respective shares as
could be seen from the photographs.
12.It is quite curious that initially the plaintiff had only sought for the relief of
permanent injunction. This was inspite of the fact that he knew that the defendants
were already running a bunk Shop in the pial portion. Thereafter, he sought for an
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S.A.No.680 of 2014
amendment and added the relief of mandatory injunction. This conduct of the plaintiff
was taken into consideration by the lower Appellant Court. That apart, the plaintiff did
not come up with specific particulars as to which portion of the 'B” schedule property was
encroached by the defendants.
13.In the considered view of this Court, the findings rendered by both the Courts
below was based on the oral and documentary evidence and this Court does not find any
perversity in any of the findings. In any event, no substantial questions of law are
involved in the present Second Appeal.
14.In the result, the Second Appeal is dismissed. Considering the facts and
circumstances of the case, there shall be no order as to costs.
02.03.2022
Internet: Yes
Index: Yes/No
KP
https://www.mhc.tn.gov.in/judis
S.A.No.680 of 2014
To
1.Subordinate Judge, Vellore,
Vellore District.
2. Principal District Munsif, Vellore.
3.The Section Officer
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.680 of 2014
N.ANAND VENKATESH,J.
KP
Second Appeal No.680 of 2014
02.03.2022
https://www.mhc.tn.gov.in/judis
