Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Mad) 2097

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SAKTHIVEL, J.
Selvaraj – Appellant
Versus
Chandran – Respondent
S.A.NO.63 OF 2021 And C.M.P. NO.16924 OF 2022
Decided on : 09-12-2024

Advocates:
Advocate Appeared:
For the Appellant :Mr.T.Murugamanickam Senior Advocate for M/s.Zeenath Begum
For the Respondents: Mr.B.Gopalakrishnan

The appellate court emphasized the necessity of treating counter-claims with the same rigor as original suits, mandating separate decrees and proper procedural adherence.

Headnote:(A) Code of Civil Procedure, 1908 - Sections 100, 27, 25(b), 41 - Second Appeal against the Judgment and Decree of the First Appellate Court confirming the Trial Court's decree - The Trial Court failed to draw a separate decree for the counter-claim, leading to procedural irregularities - The appellate court remanded the matter for fresh consideration, allowing both parties to present additional evidence. (Paras 24, 25)

(B) Counter-Claim - The counter-claim must be treated as a plaint and governed by the rules applicable to plaints - The Trial Court's failure to provide a separate decree for the counter-claim prejudiced the defendant's right to appeal. (Paras 16, 18)

Facts of the case:
The plaintiffs filed a suit for mandatory injunction against the defendant for encroachment on the Suit Property, which was part of a partition deed. The defendant counter-claimed for title over the same property, alleging a family arrangement. (Paras 3, 4)

Findings of Court:
The appellate court found that the Trial Court's decree lacked clarity regarding the counter-claim, necessitating a remand for proper adjudication. (Paras 24, 25)

Issues: Whether the Trial Court's decree was sufficient for the counter-claim and whether the appellate court erred in dismissing applications for additional evidence. (Paras 8, 9)

Ratio Decidendi: The appellate court held that the counter-claim must be treated with the same rigor as the original suit, and procedural errors in the Trial Court warranted a remand for fresh consideration. (Paras 21, 22)

Result: Second Appeal allowed; matter remanded to the Trial Court for fresh consideration.

JUDGMENT :

PRAYER in S.A.No.63 of 2021: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated December 4, 2019 made in A.S.No.5 of 2014 on the file of the Sub Court, Rasipuram, confirming the Judgment and Decree dated February 26, 2013 made in O.S.No.40 of 2010 on the file of the District Munsif Court, Rasipuram.

PRAYER in C.M.P. No.16924 of 2022 in S.A.No.63 of 2021: Civil Miscellaneous Petition for reception of additional evidence under Order XLI Rule 27 (1) of Code of Civil Procedure, 1908 praying to receive the certified copy of the affidavit and the Writ Petition, both in W.P.No.17486 of 2021 as well as the certified copy of the Order dated September 8, 2021 passed therein, and mark them as Ex-B.12 to Ex-B.14 in the Original Suit.

Judgment and Decree dated December 4, 2019 passed in A.S.No.5 of 2014 by the 'Subordinate Court, Rasipuram' ['First Appellate Court' for brevity], whereby the Judgment and Decree dated February 26, 2013 passed in O.S.No.40 of 2010 by the ‘District Munsif Court, Rasipuram' ['Trial Court' for brevity] was confirmed, are under challenge in this Second Appeal.

2. The defendant in the Original Suit is the appellant herein. The plaintiffs therein are the respondent nos.1 to 5 herein. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

PLAINTIFFS' CASE:

3. The Suit Property is located in old Survey No. 42/1 of Keeranur Village. It corresponds to Natham Survey No.42/1/23 of Keeranur Village and Natham Survey No.66/5/36 of Komarapalayam Village. Suit Property and some more properties originally belonged to one Chinna Gounder as joint family properties. After his demise, his wife - Kandhayammal and three sons - Chettiya Gounder, Kaliyanna Gounder and Kandhasamy Gounder entered into registered Partition Deed dated June 25, 1964 in respect of those joint family properties. In the said Partition Deed, ‘A’ Schedule properties therein were allotted to Chettiya Gounder and his sons, ‘B’ Schedule properties therein were allotted to Kaliyanna Gounder, ‘C’ Schedule properties were allotted Kandhasamy Gounder, and though no properties were allotted to Kandhayammal, some maintenance arrangement was done for her. The Suit Property is the Item No.5 of Schedule ‘B’ properties therein.

3.1. Under the Natham Land Tax Scheme, Patta pertaining to the Suit Property was issued in the name of the plaintiffs’ father - Kaliyanna Gounder. Post his demise in 1997, the plaintiffs, being his legal heirs, have been in continuous possession and enjoyment of the Suit Property.

3.2. To the western side of the Suit Property is the ‘Item No.5 of ‘A’ Schedule properties of the said Partition Deed corresponding to Natham Survey No.42/1/22 of Keeranur Village and Natham Survey No.66/5/35 of Komarapalayam Village, which were allotted to Chettiya Gounder in the said partition’ [henceforth ‘said western side property’ for brevity and convenience]. Through subsequent transactions between Chettiya Gounder and Kandhasamy Gounder, said western side property was transferred to Kandhasamy Gounder.

3.3. There is a ‘well’ located in the north-western corner of the said western side property and as per the said Partition Deed, the eastern side land owners viz., plaintiffs could also draw water therefrom. Accordingly, the plaintiffs were in joint possession and enjoyment of the well.

3.4. Thereafter, in 2005, the defendant proposed a verbal agreement to close the well in his property viz., said western side property, to enable him alter his house, and compensate by building a water tank in the north-eastern corner of the Suit Property. The plaintiffs agreed and both parties are jointly using the newly built water tank (sump).

3.5. However, in 2008, the defendant encroached upon the Suit Property and put up constructions such as staircase, portico, septic tank etc. The plaintiffs have annexed a rough sketch showing the encroached p