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2016 Supreme(Mad) 3853
IN THE HIGH COURT OF MADRAS
T. Ravindran, J.
Thangavel - Appellant
Versus
Arumbavur Town Panchayat Rep. by its Executive Officer - Respondent
S.A. No. 52 of 2011 and M.P. No. 1 of 2011
Decided On : 24-10-2016
For the Appellant : Mr. S. Mohan
For the Respondent: Mr. D. Suryanarayanan
Headnote:
Challenge in this second appeal is made by the plaintiff against the Judgment and Decree made in A.S. on the file of the Sub-Court, Perambalur, confirming the Judgment and Decree – Suit property belongs to the plaintiff ancestrally – Survey measures 9 cents and it originally belonged to the plaintiffs father Arumuga Padayachi and his Pangali, viz., Ponnusamy Padayachi ancestrally and in the partition between them, Ponnusamy Padayachi was allotted Western side 4½ cents and Arumuga Padayachi was allotted Southern side 4½ cents and accordingly, the plaintiff, after the demise of his father, is entitled to the suit property, now, subdivided as 642/4B Hectare 0.02.0 and UDR patta has been granted in respect of the suit property in favour of the plaintiff –Held, Further, in this case, at the instance of the plaintiff, the suit property was inspected by the Commissioner and the Commissioner has filed his report and plan. A perusal of the commissioners report and plan would go to show that the suit property has been shown in the red colour portion measuring North-South 3½ feet and East-West 27½ feet and at the same time, there is a path measuring 3½ feet and 6 feet length connecting Mariyamman Kovil street and Metal road of Theraniyar street – Said Street proceeds to West and joins Sakkadiyar street and therefore, from the report and plan of the advocate commissioner, it could be seen that there is a path way on the Southern side, North-South measuring 20 feet in length and therefore, it could be seen that the suit property has been only used as path way connecting other roads for the use of common people and water pipe has also been laid underneath and it could also be seen that the same has been in the possession and enjoyment of the defendant Panchayat for the use of the common people – Appeal is dismissed.
Mr. T. Ravindran, J.
Challenge in this second appeal is made by the plaintiff against the Judgment and Decree dated 27.07.2010 made in A.S. No. 1 of 2010 on the file of the Sub-Court, Perambalur, confirming the Judgment and Decree dated 31.07.2009 made in O.S. No. 147 of 1999 on the file of the District Munsif Court, Perambalur.
2. The suit has been laid for Permanent Injunction.
3. The averments contained in the plaint are briefly stated as follows :
The suit property belongs to the plaintiff ancestrally. The Survey No. 642/2 measures 9 cents and it originally belonged to the plaintiff's father Arumuga Padayachi and his Pangali, viz., Ponnusamy Padayachi ancestrally and in the partition between them, Ponnusamy Padayachi was allotted Western side 4½ cents and Arumuga Padayachi was allotted Southern side 4½ cents and accordingly, the plaintiff, after the demise of his father, is entitled to the suit property, now, subdivided as 642/4B Hectare 0.02.0 and UDR patta has been granted in respect of the suit property in favour of the plaintiff. The plaintiff has also hypothecated the suit property to Kadhar Board and the legal heirs of Ponnusamy Padayachi had sold the property in the year 1970 and in the said sale deed, the property of Arumuga Padaychi has been shown in the boundary recitals. The defendant has no right or interest over the suit property. The defendant is attempting to encroach into the suit property and put up road and also drainage. But the attempt of the defendant was prevented by the plaintiff. The plaintiff issued pre-suit notice to the defendant, to which, the defendant did not respond. Hence, the suit for permanent injunction.
4. The averments contained in the written statement filed by the defendant are briefly stated as follows :
The defendant has disputed the title, possession and enjoyment of the suit property by the plaintiff. According to the defendant, the suit property originally belonged to Muthusamy; Muthusamy and plaintiff's father had entered into an agreement with regard to pathway in the year 1945 and subsequently, Muthusamy had laid road in the suit property and handed over the same to the defendant for the formation of road and accordingly, the defendant formed the road in the suit property and the plaintiff is not the owner of the suit property and hence, the suit is liable to be dismissed.
5. In support of the plaintiff's case, PW1 has been examined and Exs.A1 to 11 were marked. On the side of the defendant, DW1 was examined and Exs.B1 to 8 were marked and Exs.C1 and 2 were also marked.
6. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial Court was pleased to dismiss the suit. The lower appellate court confirmed the judgment and decree of the trial Court and dismissed the first appeal filed by the plaintiff. Aggrieved over the judgment and decree of the Courts below, the present second appeal has been filed.
7. The suit has been laid simpliciter for bare injunction. The plaintiff claims title to the suit property and according to the plaintiff, he is in possession and enjoyment of the suit property and inasmuch as the defendant Panchayat attempted to interfere with his possession and enjoyment over the suit property and attempted to lay road and drainage over the suit property, the plaintiff has been necessitated to file the suit for permanent injunction.
8. The defendant has disputed the title, possession and enjoyment of the suit property by the plaintiff vehemently. According to the defendant, there is already a path way in the suit property laid by the defendant. The defendant had also put up drainage under the suit property and it is used as a link pathway by the people for approaching the connecting roads and therefore, the plaintiff is not entitled to obtain the relief sought for in the suit.
9. The plaintiff claims title to the suit property on the footing that it belongs to him ancestrally. The suit property is stated to be situated in
