N.Kannan v. N.Nallasubbu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31.07.2024

CORAM:

THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY and CMP(MD)No.10031of 2024 N.Kannan ... Petitioner/Petitioner/Defendant vs.

N.Nallasubbu ... Respondent/Respondent/Plaintiff Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 03.11.2023 made in I.A.No.4 of 2023 in O.S.No.120 of 2022 on the file of the District Munsif, Thirumangalam.

For Petitioner : Mr.C.Prithviraj

ORDER

The Civil Revision Petition is filed to set aside the order dated 03.11.2023 made in I.A.No.4 of 2023 in O.S.No.120 of 2022 on the file of the District Munsif, Thirumangalam.

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2.By the said order, the interlocutory application filed by the petitioner is dismissed. In the said interlocutory application, the petitioner has prayed for rejection of plaint. The contention of the petitioner in the application is that, admittedly, even as per the plaint, the defendant is a coowner and therefore, when a suit is filed for a permanent injunction, the suit as against the owner is not maintainable. The trial Court dismissed the said application. As against which, the present petition is filed. 3.The learned counsel for the petitioner submits that when even admittedly, as per the plaint, only the mother of the defendant alone has permitted him to occupy and when the plaintiff himself has accepted that the defendant is a co-owner, the suit for permanent injunction, on the face of it, is bound to fail.

4.I have considered the said submissions made on behalf of the learned counsel for the petitioner and also perused the material records of the case.

5.It can be seen that the suit is not for a permanent injunction simpliciter. But it is a suit for a permanent injunction not to dispossess the 2/4

plaintiff, except by due process of law. Therefore, when the suit is made by making averments that as a co-owner, the plaintiff is an occupation of one portion of the suit property by putting up superstructure and except by due process of law, he should not be thrown out, the said principle will not apply in the instant case. As a matter of fact, the petitioner himself has already filed a suit for partition, that is the due process of law. Therefore, the application for rejection of plaint is not maintainable, on such a ground, when the relief prayed for is only not to evict the petitioner otherwise than by due process of law. The plaintiff will always be entitled to pursue his suit for partition. The decree which is prayed for by the respondent itself is not to throw him out by way of illegal means. Therefore, finding no merits, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 31.07.2024 NCC : Yes / No sji To The District Munsif, Thirumangalam.

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D.BHARATHA CHAKRAVARTHY, J.

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