R.Rajapaul vs Jessy Let
2023 Latest Caselaw 13700 Mad

                                                                       S.A(MD)No.116 of 2023

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED : 10.10.2023

                                                      CORAM

                             THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                           S.A(MD)No.116 of 2023
                                                   and
                                    C.M.P(MD)Nos.2628 and 5035 of 2023


                    R.Rajapaul                       ... Appellant/Appellant/2nd Defendant

                                                            Vs.
                    1.Jessy Let.,
                    2.T.Justin Jerald
                    3.T.Simion
                    4.T.Blessy
                    5.S.Arasu
                    6.Raja Ravi                      ... Respondents/Respondents/
                                                             Plaintiffs & Defendants 1 and 3

                    PRAYER:- Second Appeal filed under Section 100 of Civil Procedure
                    Code, against the judgment and decree in A.S.No.23 of 2017 on the file
                    of the Subordinate Judge, Padmanabhapuram, dated 04.11.2019
                    confirming the order made in O.S.No.147 of 2014 on the file of the
                    Principal District Munsif Court, Padmanabhapuram, dated 03.02.2016.


                                    For Appellant       :Mr.T.Selvakumaran

                                    For R-1 to R-4      :Mr.M.P.Senthil




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https://www.mhc.tn.gov.in/judis
                                                                         S.A(MD)No.116 of 2023


                                                      JUDGMENT

This second appeal is filed against the judgment and decree of

the learned Subordinate Judge, Padmanabhapuram, dated 04.11.2019

made in A.S.No.23 of 2017 confirming the judgement and decree, dated

03.02.2016 made in O.S.No.147 of 2014 on the file of the Principal

District Munsif Court, Padmanabhapuram.

2. The respondents 1 to 3, as plaintiffs filed a suit in

O.S.No.147 of 2014, seeking a relief of decree of permanent injunction

restraining the defendants from constructing any compound wall over

the suit property and not to interfere with the peaceful possession and

enjoyment of the suit property by the plaintiffs.

3. The case of the plaintiffs/respondents 1 to 4, is that the

suit properties and other properties originally belonged to (1)Rusalayan,

(2) Thomas @ Thomson and (3) Johnson. They entered into a partition,

through a registered partition deed No.757/1996, dated 30.12.1966.

As per this partition deed, the suit property was allotted to Thomas

@ Thomson as 'B' schedule Item No.7 along with other properties.

Thomas @ Thomson, took possession of the property and planted

coconut trees and was enjoying. After the death of Thomas @ Thomson

https://www.mhc.tn.gov.in/judis S.A(MD)No.116 of 2023

on 02.05.2007, the property devolved on his wife and children.

Thomas @ Thomson during his lifetime, executed a sale deed in respect

of portion of the property in favour of one Dharmaraj for seven cents on

03.07.1991. Dharmaraj executed a settlement deed in favour of the

first plaintiff on 28.03.2012. The suit property is lying as a single plot.

The defendants have no title, possession and enjoyment over the suit

property. On 24.05.2014, the defendants and their men trespassed into

the suit property and tried to dig a fountain for construction of a

compound wall. In the said circumstances, the suit was filed.

4. The appellant/2nd defendant filed a written statement

denying the plaint averments. It is claimed that as per partition deed

dated 30.12.1966, the father of the defendants 1 and 2 Rusalayan was

allotted 31 cents in A-schedule Item No.5. It is correlated to re-survey

No.45/3. On the northern side of this property, the northern owner

Chellam and his wife encroached a portion and put up a construction.

Rusalayan filed O.S.No.34 of 2001 on the file of the District Munsif

Curt, Padmanabhapuram and got interim injunction. Later, the said

suit was compromised. A compromise decree was passed. From the

decree passed in the suit, it is proved that the suit property is the

absolute property of Rusalayan. On 17.06.2013, the wife and children

of Rusalayan effected a registered partition deed in respect of the suit

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property and other properties. In the said partition, A-schedule

property was allotted to the second defendant Raja Paul. A-schedule

Item-1 is southern portion ie., 11.017 cents. As per this partition deed,

B-schedule properties were allotted to first defendant Raja Ravi.

Northern 11.0.17 cents out of extent 22.034 cent in R.S.No.453 was

allotted to him. In the said partition, C-schedule property was allotted

jointly to parties 1,2, 4 and 5 in the partition deed. As per this partition

deed, the defendants 1 and 2 have absolute title, possession and

enjoyment of the properties ie., A-Schedule Item No.1 and B-Schedule

Item No.1. The sale deed executed in favour of Dharmaraj by Thomas @

Thomson has no validity. The settlement deed said to have been

executed by Dharmaraj in favour of his wife is also not a valid

document. After the partition on 17.06.2013, the defendants have put

up granite compound wall on the eastern side, but the plaintiffs have

demolished some portion of the compound wall. Thus, it is claimed that

the plaintiffs/respondents have no right to claim relief of injunction as

prayed for.

5. On the basis of the aforesaid pleadings, the trial Court

framed the following issues:

“(i)Whether the plaintiffs are entitled to get a decree for permanent injunction as prayed for?; and

https://www.mhc.tn.gov.in/judis S.A(MD)No.116 of 2023

(ii)To what other reliefs if the plaintiffs are entitled to?”

6. During the course of trial, P.W.1 was examined on the side

of the plaintiffs and Exs.A1 to A9 were marked and Exs.C1 and C2 were

marked. On the side of the defendants, no oral or documentary

evidence produced.

7. On considering the oral and documentary evidence, the

trial Judge found, from the description of property given in Ex.A1, the

suit schedule of property and commissioner's report, that the suit

property matches with Item-7 of B-schedule property in Ex.A1 and it is

not item No.5 of A-schedule property. In that view of the matter and

also taking into consideration other documentary evidence produced on

the side of the plaintiffs/respondents 1 to 4, the trial Court decreed the

suit.

8. The first appellate Court has also taken a similar view and

dismissed the appeal filed in A.S.No.23 of 2017 on the file of the

Subordinate Judge, Padmanabhapuram.

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9. The point arises for consideration in this second appeal is

whether the appellant, who is the second defendant before the trial

Court, has made out any substantial question of law for admitting the

second appeal.

10. As per the facts adverted to above and the findings

recorded by the Courts below on the basis of evidence produced, the

main dispute appears to be the identification of the suit property ie.,

whether the suit property is Item No.5 of A-schedule property or Item

No.7 of B – schedule property in Ex.A1-partition deed. The execution of

Ex.A1-partition deed is not disputed by both the parties, rather it is

admitted by both the parties. Only on the basis of Ex.A1-partition deed,

they set out their right to the suit property. Though there are pleadings

with regard to execution of partition deed among the defendants 1 and

2 on 17.06.2013 and filing of suit in O.S.No.34 of 2001, in the written

statement, the defendants have not chosen to produce either the

partition deed, or the records relating to the filing of the suit to show

that the partition deed and the suit in O.S.No.34 of 2001, have some

connection with the suit property.

11. It is curious to note that the defendants have not chosen

to examine anyone as witnesses and produced any document in

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support of their written statement. Thus, from the available evidence,

both the Courts below concurrently recorded a finding on the basis of

description of property given in the plaint, in the partition deed and

from the Commissioner's report that the suit property relates to Item-7

of B-schedule property and it is not item No.5 of A-schedule property in

Ex.A1-Partition deed and it was allotted to the plaintiff's husband in the

partition. This Court finds no reason to take a different view of the

matter on the issue which was concurrently decided by the Courts

below on the basis of the evidence available.

12. As per the judgments of the Courts below, the

plaintiff/respondents are entitled for the relief of injunction as prayed

for and decreed accordingly. This Court finds no ground available for

interfering with the judgment of the Courts below.

13. In Sir Chunilal V. Mehta and Sons v. The Century

Spinning Co. Ltd., 1962 reported in AIR 1962 SC 1314, the Hon'ble

Supreme Court formulated what amounts to a substantial question of

law, as follows:

1.Whether it is of general public importance (or)

2.Whether it directly and substantially affects the rights of parties and if so,

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3.Whether it is either an open question (in the sense not finally settled by this Court or Privy Council or Federal Court) (or)

4.The question is not free from difficulty and calls for discussion of alternative views.

14. In the case before hand, the appellant has not made out

any of the aforesaid grounds to formulate substantial question of law.

There is no substantial question of law arises for consideration in this

second appeal.

15. In this view of the matter, judgment and decree of the

learned Subordinate Judge, Padmanabhapurammade in A.S.No.142 of

2019, dated 04.11.2019, are confirmed and this Second Appeal is

dismissed. No Costs. Consequently, connected miscalculations petition

is closed.

10.10.2023 pm Index:Yes/No NCC:Yes/No

https://www.mhc.tn.gov.in/judis S.A(MD)No.116 of 2023

To,

1.The Additional Subordinate Court, Tenkasi.

2.The Principal District Munsif Court, Tenkasi.

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

https://www.mhc.tn.gov.in/judis S.A(MD)No.116 of 2023

G.CHANDRASEKHARAN, J.

pm

S.A(MD)No.116 of 2023

10.10.2023

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