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Madras High CourtSA/1399/2004dismissed with cost

K.Natesan, S/O Kolandhai v. Raji S/O Kolandhai

2018-06-04Honourable Mr Justice T. Ravindran8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 20.04.2018 PRONOUNCED ON : 04.06.2018

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.1399 of 2004 K.Natesan ...

Appellant Vs.

1. Raji

2. R.Murugesan

3. R.Kalaimani

4. S.Srinivasan ...

Respondents Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 30.07.2003 passed in A.S.No.18 of 1998 on the file of the Subordinate Court, Authur, confirming the Judgment and Decree dated 27.03.1998 passed in O.S.No.191 of 1993 on the file of the District Munsif Court, Authur. For Appellant : Mrs.Muthumani Doraisami For Respondents : Mr.P.Jagadeesan

JUDGMENT

In this second appeal, challenge is made to the Judgement and Decree dated 30.07.2003 passed in A.S.No.18 of 1998 on the file of the Subordinate Court, Authur, confirming the Judgment and Decree dated 27.03.1998 passed in O.S.No.191 of 1993 on the file of the District Munsif Court, Authur.

2. The second appeal has been admitted on the following

substantial question of law:

" Whether the suit is maintainable without demarcating the suit properties?"

3. The suit has been laid by the plaintiff simplicitor for bare injunction.

4. Materials placed on record go to show that the plaintiff has laid the suit against the defendants seeking the relief of permanent injunction on three counts;

(i). restraining the defendants and their men from in any manner obliterating the suit channel and the common pathway, (ii). from in any manner preventing the plaintiff from irrigating the suit coconut trees by taking water through the suit channel as shown in the plaint plan and (iii). From in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit properties. Thus, it is found that the plaintiff has clubbed the three reliefs in one single suit and the relief of permanent injunction is sought for in respect of the suit channel, common pathway, suit coconut trees as well as the suit properties, which, according to the plaintiff, includes the abovesaid common pathway, channel as well the coconut trees.

5. The defendants have thrown a challenge disputing the case of the plaintiff in toto, particularly, the existence of the suit channel, the

claim of title to the coconut trees described in the plaint schedule as well as the entitlement of the plaintiff to the pathway as projected in the plaint.

6. Despite the abovesaid defence projected by the defendants, the plaintiff, for the reason best known to him, did not endeavour to seek the relief of declaration as to the nature of the right he validly possesses in respect of the channel, common pathway, coconut trees etc., in respect of which, he has sought for the reliefs.

7. As rightly determined by the Courts below, both the parties claimed title to their respective properties by way of the partition deed dated 30.08.1968 marked as Ex.A1. It is found that as per the said document, the pathway has been shown to be situated to the south of survey No.772/2, in which, both the parties are given the right of enjoyment. In respect of the endeavour made by the defendants to measure the properties owned by the parties through a surveyor, resistance has been made by the plaintiff and according to the defendants, pathway is found to be forming part of the property allotted to them and accordingly, it is the case of the defendants that they have laid a claim of right in respect of the pathway portion as part and parcel of their property. In this connection, it is found that Panchayat has been convened between the parties and according to the plaintiff, as per the decision of the Panchayatars, he has obliterated the pathway running in

his property and annexed the same, along with his lands. According to the defendants, the pathway projected by the plaintiff is not in existence and it forms part of the property allotted to them and hence, the plaintiff cannot lay any claim of title or common right in respect of the alleged pathway.

8. Insofar as this case is concerned, though the commissioner has been appointed in respect of noting the physical features of the properties of the parties concerned, the same did not fructify as the warrant issued to the commissioner had been recalled in the interregnum and the position being above, now, it is for the plaintiff to point out his claim of title to the channel, pathway and coconut trees as projected in the plaint. With reference to the abovesaid claim of the plaintiff, other than Exs.A1 to A3, no other document has been placed by the plaintiff to show his possession and enjoyment of the suit properties as described in the plaint.

The Courts below, based on the materials placed on record, finding that the plaintiff has obliterated the pathway running in his lands and had projected a claim of certain lands as the pathway, which forms part of the defendants' property, accordingly, refused to grant the reliefs sought for by the plaintiff in respect of the pathway.

permanent injunction sought for by the plaintiff in respect of the coconut trees. Further, the Courts below had also, holding that the plaintiff has failed to establish his case in respect of the suit channel, on the same lines, declined the relief sought for by the plaintiff with reference to the same. Thus, it is found that the plaintiff has not placed any acceptable and reliable materials to prima facie establish at least that he has title to the pathway, channel, coconut trees etc., either independently or jointly and on the other hand, when it is found that the defendants are enjoying all the pathway portion as forming part of their own property as well as the coconut trees projected in the plaint, accordingly, it is seen that the Courts below had rightly declined the plaintiff's suit for the relief of injunction.

9. As rightly determined by the Courts below, the plaintiff having come forward with the suit seeking specific reliefs should have demarcated his properties by giving correct particulars and without doing so, particularly, not endeavouring to measure the actual extent of the properties, which, he owns, with the assistance of the surveyor is found to have preferred the suit based on incorrect particulars of the properties concerned and accordingly, unable to explain as to how he is in possession and enjoyment of the suit properties. Further, the plaintiff is found to have laid the suit combining all the reliefs in respect of the various features involved in the suit properties at one stretch and on that basis, as rightly determined by the Courts below, failed to place materials

for lending credence to his case. In such view of the matter, the Courts below are found to be justified in declining the reliefs sought for by the plaintiff as the plaintiff has failed to sustain his suit by clearly describing the suit properties to which he is actually entitled to. Eventually, without giving a clear description of the properties, to which, the plaintiff is entitled to, the equitable relief of permanent injunction cannot be extended in favour of the plaintiff. The substantial question of law formulated in this second appeal is accordingly answered against the plaintiff and in favour of the defendants.

In conclusion, the second appeal fails and accordingly, is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.

04.06.2018 Index : Yes / No Internet : Yes / No sms To 1.The Subordinate Court, Authur.

2.The District Munsif Court, Authur.

3.The Section Officer, V.R.Section, High Court, Madras.

T.RAVINDRAN, J.

sms Pre-Delivery Judgment made in S.A.No.1399 of 2004 04.06.2018

Pre-delivery Judgment made in S.A.No.1399 of 2004 To The Hon'ble Mr.Justice T.RAVINDRAN Most respectfully submitted sms P.A.to the Hon'ble Judges