Madras High Court
K.Sundararaj vs Subbulakshmi on 15 July, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 15.07.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
S.A.(MD)Nos.359 & 360 of 2013
and
M.P.(MD).No.1 of 2013
S.A.(MD)No.359 of 2013
1.K.Sundararaj
2.A.Sundararaj … Appellants/Appellants /
Defendants
Vs.
Subbulakshmi ... Respondent/Respondent/
Plaintiff
PRAYER:- Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 21.12.2012 made in
A.S.No.203 of 2011 on the file of the II Additional Sub Judge, Madurai,
(Camp Sub Judge, Thirumangalam), confirming the judgment and decree
dated 12.07.2011 made in O.S.No.125 of 2007 on the file of the District
Munsif Court, Thirumangalam, and to set aside the .
For Appellants : Mr.K.Hemakarthikaeyan
For Respondent : Mr.M.Ponnambalam
1/14
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
S.A.(MD)No.360 of 2013
1.K.Sundararaj
2.A.Sundararaj … Appellants/Appellants /
Plaintiffs
Vs.
1.Subbulakshmi
2.Nallappan ... Respondents/Respondents/
Defendants
PRAYER:- Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 21.12.2012 made in
A.S.No.204 of 2011 on the file of the II Additional Sub Judge, Madurai,
(Camp Sub Judge, Thirumangalam), confirming the judgment and decree
dated 12.07.2011 made in O.S.No.344 of 2006 on the file of the District
Munsif Court, Thirumangalam, and to set aside the same.
For Appellants : Mr.K.Hemakarthikaeyan
For Respondents : Mr.M.Ponnambalam
COMMON JUDGMENT
Appeal in SA(MD)No.359 of 2013 has been filed by the original
defendants in O.S.No.125 of 2007 on the file of the District Munsif,
Thirumangalam, challenging the judgment and decree passed in A.S.No.
203 of 2011 on the file of the II Additional Sub Judge, Madurai, (Camp
Sub Judge, Thirumangalam), confirming the judgment and decree passed
in O.S.No.344 of 2006.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
2. Appeal in SA(MD)No.360 of 2013 has been filed by the original
plaintiffs in O.S.No.344 of 2006 on the file of the learned District
Munsif, Thirumangalam, challenging the judgment and decree passed in
in A.S.No.204 of 2011 on the file of the II Additional Sub Judge,
Madurai, (Camp Sub Judge, Thirumangalam), confirming the judgment
and decree passed in O.S.No.344 of 2006.
3. Since these two appeals are arising out of the same cause of
action, these two appeals are taken up together for hearing and disposed
of by way of this common judgment.
4. For the sake of convenience and brevity, the parties herein after
shall be referred to as per their status/ranking before the trial Court in
O.S.No.125 of 2007.
5.1. The brief averments made in the plaint in O.S.No.125 of
2007 are as follows:-
The plaintiff is the absolute owner of the property through the
Gift Settlement Deed dated 22.03.2004. The suit schedule property was
leased out to the father of the first defendant in the year 1971 by the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
mother of the plaintiff namely, Vellachiammal for running a Tea stall cum
hotel. In the year 1996, the tenancy was attorned in favour of the
defendants by the agreement deed dated 18.11.2004 and monthly rent
was fixed as Rs.180/- and the defendants also agreed to vacate the
premises within the time prescribed in the agreement. The defendants
committed wilful default in paying the monthly rent and filed a suit in
O.S.No.344 of 2006 before this Court for the relief of permanent
injunction with false allegations. Hence, the plaintiff terminated the
tenancy of the defendants and issued a legal notice to the defendants to
vacate the suit schedule property on 22.01.2007. The defendants received
the same and gave a reply with false averments. Hence, the plaintiff filed
the present suit with the above said prayer. Hence, prayed to allow the
suit.
5.2. The brief averments made in the written statement in
O.S.No.125 of 2007 by the second defendant are as follows:-
The second defendant filed written statement denying the
agreement dated 18.11.2004 and his father leased out the suit schedule
property in the year 1951 for a monthly rent of Rs.3/- and constructed a
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
superstructure for running a Tea stall. As on date, the monthly rent was
Rs.180/- and there was no wilful default in paying the rent. The same was
paid without any default. The plaintiff tried to interfere with the
defendant's peaceful possession and enjoyment of the property. Hence,
they filed a suit in O.S.No.344 of 2006 against the plaintiff for the relief
of permanent injunction. As a counter blast, present suit has been filed
against them. Hence, prayed for dismissal of the suit.
6.1. The brief averments made in the plaint in O.S.No.344 of
2006 are as follows:-
The defendants in O.S.No.125 of 2007 has filed a suit in O.S.No.
344 of 2006 on the file of the District Munsif. Thirumangalam, seeking a
relief of decree for permanent injunction restraining the defendants, their
men and agents from interfering with their peaceful possession and
enjoyment of the suit schedule property till their lawful eviction under
due process of law with the pleading that the father of the first plaintiff
got the suit schedule property from the first defendant's mother by way of
lease deed in the year 1971 and constructed a Tea stall cum Hotel and
thereafter, the same has been attorned in favour of the plaintiffs through
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
the written instrument dated 18.11.2004. As per the agreement dated
18.11.2004, monthly rent was fixed as Rs.180/-. Thereafter, the
defendants refused to receive the rent and requested them to pay the
advance amount of Rs.1 lakh and further, enhanced the monthly rent as
Rs.1,000/- and caused disturbance to the plaintiffs' possession and
enjoyment of the suit schedule property through rowdy elements.
Therefore, the plaintiffs filed a suit for the above said relief.
6.2. The brief averments made in the written statement in
O.S.No.344 of 2006 by the first defendant are as follows:-
The respondents/defendants disputed the said allegation made in
O.S.No.344 of 2006. According to her, there was no payment of rent and
hence, they demanded the same. Without making the payment of rent, the
plaintiffs have filed the present suit. Subsequently, she filed a suit in
O.S.No.125 of 2007 for recovery of possession with damages and mesne
profit. Hence, she prayed for dismissal of the suit.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
7.Based on the above said pleading, the trial Court has framed
the following issues:-
1.Whether it is true that the defendants have
committed willful default?
2.Whether the notice issued by the plaintiff is not
in accordance with law?
3.Whether the plaintiff is entitled to the relief of
recovery of vacant possession as prayed for?
4.Whether the plaintiff is entitled to the relief of
recovery of rent arrears as claimed in the plaint?
5.Whether the plaintiff is entitled to the relief of
future mesne profits?
6.Whether the plaintiff in O.S.No.344/2006 is
entitled for the relief of permanent injunction as prayed
for?
7.To what other relief, the parties are entitled to?
8. Before the trial Court on the side of the plaintiff in O.S.No.125
of 2007, the plaintiff examined herself as P.W.1 and Exs.A1 to A5 were
marked. On the side of the defendants, the first defendant was examined
as D.W.1 and other two witnesses were examined as D.W.3 and D.W.4
and Ex.B.1 to Ex.B.10 were marked.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
9. After analyzing the evidence adduced on both sides, the trial
Court has allowed the suit filed by the plaintiff in O.S.No.125 of 2007
and dismissed the suit filed by the plaintiffs in O.S.No.344 of 2006.
Aggrieved over the said judgment and decree, the plaintiffs in O.S.No.
344 of 2006 filed the Appeal Suit before the II Additional Sub Judge,
Madurai, (Camp Sub Judge, Thirumangalam), in A.S.Nos.203 and 204 of
2011. The learned First Appellate Judge also dismissed the appeal by
confirming the judgment and decree passed by the trial Court.
10. Challenging the same, the present appeal has been preferred by
the appellants.
11. These Second Appeals have not been admitted and by order
dated 05.06.2013 and 20.06.2013 respectively, this Court had only issued
notice to the respondents.
12. Heard the learned counsel for the appellants and the learned
counsel for the respondents.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
13. The learned trial Judge decreed the suit filed by the plaintiff in
O.S.No.125 of 2007 and dismissed the suit filed by the plaintiffs in
O.S.No.344 of 2006. Aggrieved over the same, the plaintiffs in O.S.No.
344 of 2006 filed the appeal suits in A.S.No.203 &f 204 of 2011 on the
file of the II Additional Sub Judge, Madurai, (Camp Sub Judge,
Thirumangalam), and the same were also dismissed. Challenging the
same, present second appeals have been filed. This Court granted stay in
the execution of decree in O.S.No.125 of 2007 and the same has not been
further extended. Therefore, the Execution Court proceeded the EP and
ordered delivery and had taken on file the Interlocutory Application to
break open and for police protection.
14. At this stage, the second appellant in both appeals has filed an
undertaking affidavit before this Court, expressing his willingness to
vacate the premises on or before 30.09.2025 and the said undertaking
affidavit reads as follows:-
“1. I am the 2nd appellant in the above said
appeal and as such I am well acquainted with the
facts of the case. I am swearing this affidavit on my
behalf and on behalf of the 1st appellant herein.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
2. I submit that we have filed a suit in O.S.No.
344 of 2006 on the file of the District Munsif Court,
Tirumangalam, for bare injunction restraining the
respondent herein from interfering with the peaceful
possession and enjoyment of the suit property till
they are lawfully evicted under due process of law.
Likewise the respondent herein has filed a suit in
O.S.No.125/2007 before the District Munsif Court,
Tirumangalam for direction directing as to vacate
and hand over and deliver the vacant possession of
the suit property after removing the existing super
sructure without any let or hindrance or in default
through court and to pay arrears of rent due from
Avani Viya year to Thai Viya year amounting to a
sum of Rs.1080/- and continue to pay damages for
use of occupation and to pay future mesne profit.
3.I submit that both the suits were clubbed
together and joint trial has been conducted. I submit
that the evidence were marked in O.S.No.125/2007
and the respondent herein/plaintiff was examined as
P.W.1 and marked the documents as Ex.A1 to Ex.A5
and and the 1st appellant herein/1st defendant was
examined as D.S.1 and one Seeni Naicker and one
Seeniraj were examined as D.W.2 & D.W.3
respectively and marked the documents as Ex.B1 to
Ex.B.10.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
4. I submit that after considering the oral and
documentary evidence, the trial court has decreed
the suit filed by the respondent herein and directed
us to vacate the suit property and dismissed our suit.
Being aggrieved by the same, we have pereferred
two appeals before the Camp Sub Judge,
Tirumangalam, in A.S.No.203 & 204/2011. After
considering the facts and circumstances of the case,
the ower Appellate Court has erroneously confirmed
the judgment and decree of the trial Court. Being
aggrieved by the same, we have filed above second
appeals before this Hon'ble Court and the same is
pending for adjudication.
5.I submit that pending the above appeal, this
Hon'ble Court was pleased to grant interim stay on
03.06.2013 and periodically extended fro some times
and thereafter, the above said second appeal was not
listed for hearing. In the meantime, the respondent
herein has filed an execution petition in Ex.P.No.56
of 2011 on the file of the District Munsif Court,
Tirumangalam, for eviction and the learned Trial
Judge was pleased to order for delivery on
05.06.2025 and now the respondent has filed an
application for Police Protection. In view of the
above situation, I undertake to vacate the suit
property withina period of three months or on or
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
before 30.09.2025, since I am running a hotel cum
tea stall and I have to identify a place and to shift
the same I submit that based on my undertaking, the
above said second appeals may be disposed off.
In the foregoing circumstances it is prayed
that this Hon'ble Court may be pleased to dispose of
the above appeals by recording the above
undertaking and thus render Justice.”
15. The learned counsel for the respondents agreed for the same.
But, seeks to observe in the event of any failure on the part of the
appellants to hand over the possession on or before 30.09.2025, the
respondent is permitted to proceed the EP from the stage of order to
break open and police protection.
16. Recording the above submission of the learned counsel for the
respondent and on the basis of the undertaking affidavit filed by the
appellants before this Court, this Court is inclined to dismiss the Second
Appeals granting time to the appellants to vacate the premises upto
30.09.2025.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
17. Both the Courts below have concurrently found that the sole
respondent in SA(MD)No.359 of 2013 and the first respondent in
SA(MD)No.360 of 2013 has established her title to the suit schedule
property and directed the appellants to hand over the possession of the
suit scheduled property to her. The appellants have not made out any case
to interfere with the concurrent finding of both the Courts below. Hence,
no question of law, much less a substantial question of law arises for
consideration in the Second Appeals.
18. Accordingly, the Second Appeals are dismissed by granting
time to the appellants to vacate the premises upto 30.09.2025. In the
event of failure on the part of the appellants to vacate the premises, the
Execution Court shall continue the execution proceedings from the stage
of order to break open and police protection to deliver the property.
There shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
15.07.2025
NCC :Yes/No
Index : Yes/No
Internet : Yes/No
dss
Note : Issue order copy on 16.07.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
K.K.RAMAKRISHNAN, J.
dss
To
1.The II Additional Sub Judge, Madurai,
(Camp Sub Judge, Thirumangalam).
2. The District Munsif Court,
Thirumangalam.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)Nos.359 & 360 of 2013
and
15.07.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 16/07/2025 05:13:12 pm )
