Madras High Court
Sakkaravarthy Prabu vs Pounchamy on 2 March, 2023
S.A(MD)No.389 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.389 of 2015
1.Sakkaravarthy Prabu
2.Ponnuchamy ... Appellants/Appellants
/Plaintiffs
Vs.
Pounchamy ... Respondent/Respondent
/Defendant
PRAYER :-
This Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed by the Sub Court, Sivagangai
in A.S.No.133 of 2012, dated 13.08.2014, confirming the judgment and
decree passed by the Principal District Munsif Court, Manamadurai in
O.S.No.147 of 2010, dated 19.01.2012.
For Appellants : Mr.N.Tamilmani
For Respondent : Mr.R.Udhayakumar
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S.A(MD)No.389 of 2015
JUDGMENT
The appellant filed a suit for bare injunction in O.S.No.147 of 2010 on
the file of the Principal District Munsif Court, Manamadurai and the same
was dismissed. Aggrieved by the same, the appellant preferred an appeal in
A.S.No.133 of 2012 on the file of the Sub Court, Sivagangai and the same
was also dismissed. Aggrieved by the same, the present Second Appeal is
filed. The respondent herein filed a suit for bare injunction in respect of the
very same suit property in O.S.No.129 of 2010 on the file of the Principal
District Munsif Court, Manamadurai and the same was decreed. Aggrieved
by the same, the appellants herein and others preferred an appeal in A.S.No.97
of 2015 on the file of the Sub Court, Sivagangai and the same was transferred
to the Sub Court, Manamadurai and re-numbered as A.S.No.132 of 2019.
Subsequently, on 04.10.2019, the appeal preferred by the appellant herein in
A.S.No.132 of 2019 was dismissed.
2. Therefore, decree for injunction obtained by the respondent against
the appellants and others in respect of very same suit property had attained
finality. When decree for injunction is operating against the appellant, the
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S.A(MD)No.389 of 2015
appellant is not entitled to maintain the present Second Appeal, which is also
arising out of suit for bare injunction. The comparison of four boundaries of
suit properties in both the suits makes it clear that both the suits are in respect
of same property. The said fact is not disputed by the learned counsel for the
appellant. Therefore, the judgment and decree passed in O.S.No.129 of 2010
on the file of the Principal District Munsif Court, Manamadurai, as confirmed
by the judgment and decree in A.S.No.132 of 2009 on the file of the Sub
Court, Manamadurai will operate as resjudicata against the present Second
Appeal. The appellants claims possession over the suit property in their
alleged capacity as Poojari of Gurunathar Samy temple. The appellants
claimed that they were in possession of temple's house at suit property.
However, during the course of evidence, the appellants and their witnesses
admitted the house in the suit property got dilapidated and articles in the
house are now kept in the house of plaintiffs. Therefore, it appears that the
plaintiffs claimed possession only in their capacity as Poojari and they failed
to prove the same by leading acceptable evidence. The counsel for appellant
unable to point out any perversity in the finding of fact arrived at by both the
Courts below. Hence, in the absence of any substantial question of law
arising for consideration, the Second Appeal deserve to be dismissed.
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S.A(MD)No.389 of 2015
3.Even as merits of the case, the Courts below came to a factual
conclusion that the appellant failed to prove their possession over suit
property.
02.03.2023
NCC : Yes/No
Index : Yes / No
vsd
To
1.The Sub Court,
Sivagangai.
2.The Principal District Munsif Court,
Manamadurai.
3.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
S.SOUNTHAR, J.
vsd
https://www.mhc.tn.gov.in/judis
S.A(MD)No.389 of 2015
S.A(MD)No.389 of 2015
02.03.2023
https://www.mhc.tn.gov.in/judis
S.A(MD)No.389 of 2015
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