Madras High Court
Kaliyanna Gounder vs Sellammal (Died) on 13 April, 2023
S.A.No. 1569 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.04.2023
CORAM
THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN
S.A.No. 1569 of 2005
And
C.M.P.No. 20356 of 2005
1. Kaliyanna Gounder
2. K.Palanisamy ... Defendants/Respondents/Appellants
Vs.
1. Sellammal (died)
2. Palanivelu
3. Balakrishnan ... Plaintiffs/Appellants/Respondents
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Decree and Judgment dated 30.11.2004 made
in A.S.No. 148Of 2003 on the file of the Principal District Judge,
Namakkal, setting aside the Decree and Judgment made in O.S.No. 213 of
1995 dated 29.01.2003 on the file of the District Munsif, Trichengode and
partly decreeing the same.
***
https://www.mhc.tn.gov.in/judis 1
S.A.No. 1569 of 2005
For Appellants : Mr. S.A.Hafiz
For Respondents : Mr. C.Kulanthaivel
JUDGMENT
The suit had been filed by the plaintiff for the following reliefs:-
(i) declaring the plaintiffs right to fix 'C' and 'E' windows in the AB
wall;
(ii) to declare the plaintiffs right to use the common land on the
eastern side of their house;
(iii) for granting the mandatory injunction against the defendants to
restore X Y ditch to its original condition; and
(iv) for granting permanent injunction against the defendants and
their men restraining them from in any manner interfering with the
S.A.No. 1569 of 2005
peaceful possession and enjoyment of the suit property and from disturbing
the plaintiffs enjoyment of A B wall and fixation of C and E windows and
X Y ditch.
2. The trial Court decreed the suit partly, against which the present
respondents had preferred an Appeal in A.S.No. 148 of 2003. The appeal
came to be allowed granting the following reliefs:-
“1. that the appeal be and the same is
hereby partly allowed by setting aside the
judgment and decree dated 29.1.2003 made in
O.S.No. 213/95 on the file of the Court of
District Munsif, Tiruchengode relating to the
reliefs of declaration and permanent injunction
in respect of the plaintiffs rights to fix the
windows in eastern side AB wall and in respect
of their right to use the open space on the east
of AB wall thereby granting the reliefs of
declaration and the injunction as sought for in
the suit in respect of their right to fix the
windows in the eastern side AB wall and by
S.A.No. 1569 of 2005
declaring the plaintiffs limited right to use the
eastern side open space once in a year for
repairing and white washing AB wall,
2. that the appeal be and the same is
hereby partly dismissed by confirming the
judgment and decree dated 29.01.2003 made in
O.S.No. 213 / 95 on the file of the Court of
District Munsif, Tiruchengode relating to the
reliefs of mandatory injunction and permanent
injunction as sought for in respect of X Y ditch,
3. that the suit in O.S.No. 213/95 is
hereby partly decreed by declaring the
plaintiffs right of fixation of windows in the
eastern side AB wall;
4. that the suit is hereby decreed by
granting the relief of permanent injunction
thereby restraining the defendants from
interfering with the plaintiffs exercise of such
right;
S.A.No. 1569 of 2005
5. that the suit is hereby decreed by
declaring the right of the plaintiffs to use
vacant space on the eastern side once in a year
for repairing and white washing AB wall
subject to condition that the plaintiffs shall give
one week prior notice when they intend to do so
and the plaintiffs shall do the repairing and
white washing between 9 A.M. and 5 p.m., in a
day and the work shall not exceed 4 days in a
year;
6. that the suit is hereby decreed by
granting the relief of permanent injunction for
restraining the defendants and their men from
interfering with the plaintiffs exercise of such
right once in a year;
7. that the suit is hereby dismissed by
negativing the reliefs of permanent injunction
and mandatory injunction as sought for in
respect of X Y ditch;
S.A.No. 1569 of 2005
8. that the plaint rough plan is to form
part of the decree and;
9. that there is no order as to costs.”
3. When the Second Appeal was taken up for hearing, the learned
counsel for the appellant submitted that there is a subsequent development.
He stated that the building of the plaintiff itself was demolished and it was
reconstructed giving a set back of nearly 3 feet on the eastern side.
4. This Court had requested him to file a memo to capture the said
events. Accordingly, the memo has been placed before me today.
5. A perusal of the same shows that the old superstructure had been
pulled down and new superstructure had been raised. Therefore, in the
light of the subsequent development, nothing survives to be adjudicated in
the Appeal. Hence, the Second Appeal is dismissed as infructuous.
Consequently, connected Civil Miscellaneous Petition is closed.
S.A.No. 1569 of 2005
6. The memo filed by the learned counsel shall form part of the
records.
13.04.2023
Index :Yes/No
Internet:Yes/No
vsg
To
1. Principal District Judge, Namakkal.
2. District Munsiff, Trichengode.
S.A.No. 1569 of 2005
V. LAKSHMINARAYANAN , J.
vsg
S.A.No. 1569 of 2005
And
C.M.P.No. 20356 of 2005
13.04.2023
https://www.mhc.tn.gov.in/judis 8
