S.Venmathi vs Kumbakonam Municipal Counsil
2023 Latest Caselaw 9140 Mad

                                                                         S.A.(MD)No.384 of 2023

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 27.07.2023

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VADAMALAI

                                           S.A.(MD)No.384 of 2023
                                                    and
                                          C.M.P(MD)No.8236 of 2023


                     S.Venmathi                                  ... Appellant/Plaintiff


                                                        Vs.


                     Kumbakonam Municipal Counsil,
                     represented by its Commissioner,
                     Kumbakonam Municipality,
                     Kumbakonam Taluk,
                     Thanjavur District.                        ... Respondent/Defendant


                     PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
                     Procedure, to allow this Second Appeal by setting aside the judgment and
                     decree made in A.S.No.72 of 2018 dated 15.12.2020 by the Additional
                     Subordinate Judge, Kumbakonam, confirming the decree and judgment
                     passed in O.S.No.11 of 2012 dated 09.04.2018 by the Additional District
                     Munsif, Kumbakonam.

                                        For Appellant     : Mr.A.George Stephen




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                                                                                S.A.(MD)No.384 of 2023

                                                          JUDGMENT

This Second Appeal is filed against the judgment and decree dated

15.12.2020 made in A.S.No.72 of 2018 on the file of the Additional

Subordinate Judge, Kumbakonam confirming the judgment and decree

dated 06.04.2018 made in O.S.No.11 of 2012 on the file of the Principal

District Munsif, Kumbakonam.

2. The brief facts of the case:

The appellant is the plaintiff in O.S.No.11 of 2012 on the file of

the Principal District Munsif Court, Kumbakonam. She has filed the said

suit against the respondent/Municipality seeking permanent injunction.

The respondent filed a detailed written statement. Both sided let in

evidences. After hot contest, the Trial Court dismissed the said suit.

Aggrieved by the judgment and decree of the Trial Court, the

appellant/plaintiff has filed first appeal in A.S.No.72 of 2018 before the

First Appellate Court/Additional Subordinate Court, Kumbakonam. The

First Appellate Court, after considering both side arguments and both

side evidences, dismissed the appeal and confirmed the judgment and

decree of the Trial Court. Aggrieved by the same, the appellant has come

up by way of this Second Appeal.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.384 of 2023

3. Heard the learned counsel for the appellant and perused the

records.

4. The learned counsel for the appellant/plaintiff has argued that

the plaintiff’s brother in law (husband’s brother) was running a small

scale concern by availing loan from the Tamil Nadu Small Scale

Industries Corporation in the suit property. He was running the concern

for 40 years. The suit property is classified as Vaikkal poramboke. The

plaintiff’s brother-in-law put a thatched house at the said property. The

plaintiff also put a thatched house near his thatched house and she has

been in possession and enjoyment of the same. The respondent/defendant

passed resolution to construct public toilets and the official of the

respondent/defendant tried to remove the fences and thatched house of

the plaintiff. Therefore, she filed suit before the Trial Court and she let in

oral and documentary evidences. Court Commissioner was also

appointed and his report was also marked. The Trial court without proper

appreciation of evidences dismissed the suit. She preferred appeal before

the First Appellate Court, which also dismissed the appeal. Both Courts

below failed to consider that the plaintiff and her brother-in-law have

been in possession more than 40 years i.e., statutory period with the

knowledge of the defendant. The appellant/plaintiff has fair chance to https://www.mhc.tn.gov.in/judis

S.A.(MD)No.384 of 2023

succeed in second appeal. Therefore the second appeal may be admitted

to file.

5. On hearing the learned counsel for the appellant and on perusal

of records, it is clear that the appellant/plaintiff herself has admitted that

the suit property is classified as Vaikkal poramboke. The

appellant/plaintiff has clearly admitted in her cross examination that her

brother-in-law is an occupier in the suit property and he had not obtained

any licence for the firm in the suit property and the suit filed by her

brother-in-law ended against him and that she has filed the present as a

benami of her brother in law. On perusal of evidence of plaintiff as P.W.1

she has clearly admitted in her cross that as per the surveyor report, the

suit property is a vaikkal poramboke, which is absolutely belonged to the

respondent/Municipality. Plaintiff has examined P.W.2, who also

categorically deposed that there is no connection between the

appellant/plaintiff and the suit property. Further, the appellant/plaintiff

has not filed any documents to substantiate her case. The documents

marked on her side all are related to the suit in O.S.No.412 of 1990 filed

by the appellant/plaintiff’s brother-in-law. Admittedly, the said suit

ended in dismissal upto appeal. In such circumstances, the

appellant/plaintiff has no valid ground to file suit against the https://www.mhc.tn.gov.in/judis

S.A.(MD)No.384 of 2023

respondent/defendant, which is absolute owner of the suit property being

vaikkal poramboke. Considering the facts, there is prima-facie no

substantital question of law arisen in this second appeal against the

concurrent findings of the Court below. Therefore, considering the above

facts and circumstances, this Court is of the opinion that this Second

Appeal is liable to be dismissed in the admission stage itself.

6. In the result, as there is no substantial question of law involved

in this appeal, this Second Appeal is dismissed at the admission stage

itself. No costs. Consequently, connected Miscellaneous Petition is

closed.

27.07.2023

NCC : Yes / No Index : Yes / No Internet : Yes / No vsd

To

1.The Additional Subordinate Judge, Kumbakonam.

2.The Additional District Munsif, Kumbakonam.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.384 of 2023

P.VADAMALAI, J.

vsd

ORDER MADE IN S.A.(MD)No.384 of 2023 and C.M.P(MD)No.8236 of 2023

27.07.2023

https://www.mhc.tn.gov.in/judis