S.A.(MD).No.411 of 2007

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

JUDGMENT RESERVED ON : 24.11.2022

JUDGMENT PRONOUNCED ON : 30.01.2023

CORAM:

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

S.A.(MD).No.411 of 2007

John Bosco (Died)

....Appellant/Respondent/Defendant

2.Mary Annammal

3.J.Alexander

4.J.John Peter

5.J.John Paul

6.J.Mary Phillus

....Proposed Appellants/---/----

( Appellants 2 to 5 are brough on record vide

Court order dated 01.11.2016)

-Vs-

Varghese (died)

....Respondent/Appellant/Plaintiff

2.Lissy Mary

3.Winston Varghese

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S.A.(MD).No.411 of 2007

4.Peter Varghese

5.Vanaja Varghese

6.Jude Varghese

7.Stalin Varghese

8.Sheela Varghese

...Proposed Respondents/--/---

(Respondents 2 to 8 are brought on record as legal heirs

vide Court order dated 27.09.2022)

PRAYER : Second Appeal is filed under Section 100 of C.P.C, to allow the

second appeal by setting aside the judgment and decree dated 05.02.2007

passed in A.S.No.82 of 2002 on the file of the Subordinate Court,

Kuzhithurai reversing the judgment and decree dated 06.08.2002 passed in

O.S.No.490 of 1999 on the file of I Additional District Munsif, Kuzhithurai.

For Appellants

: C.Dhanaseelan

For R2 to R8

: Mrs.Hema Sampath

Senior Counsel

For Mr.R.Pon Karthithikeyan

JUDGMENT

The defendant is the appellant.

2.The plaintiff had filed O.S.No.490 of 1999 on the file of the

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S.A.(MD).No.411 of 2007

I Additional District Munsif Court, Kuzhithurai for the relief of permanent

injunction. The suit was dismissed by the trial Court. The plaintiff had filed

A.S.No.82 of 2002 on the file of the Subordinate Court, Kuzhithurai. The

First Appellant Court was pleased to grant a qualified decree for permanent

injunction in favour of the plaintiff that the defendant should not disturb the

possession of the plaintiff unless by due process of law. Challenging the

same, the defendant had filed the above second appeal.

3.The second appeal was allowed by this Court on 06.11.2009 setting

aside the decree passed by the First Appellate Court. The respondent in the

appeal had filed Review Application No.113 of 2009 and the said Review

Application was allowed on 13.08.2013 setting aside the judgement and

decree dated 06.11.2009. Thus, the present second appeal has been listed for

fresh hearing.

Pleadings of the parties:

4.The plaintiff had contended that he is the owner of 6 acres and 26 ½

cents in the suit survey numbers by way of Court auction purchase dated

09.11.1984. According to the plaintiff, he got delivery of the property

through Court in E.P.No.59 of 1982 on 17.02.1991. The plaintiff had further

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S.A.(MD).No.411 of 2007

contended that the defendant had filed O.S.No.602 of 1997 before the same

Court for the relief of permanent injunction and in the said suit, the plaintiff

has also filed a counter claim for the relief of declaration that the decree in

O.S.No.394 of 1997 as null and void.

5.The plaintiff had further contended that the defendant had initiated

proceedings before the Revenue Divisional Officer, Padmanabhapuram

under Section 145 Cr.P.C in order to overcome the civil Court decree. He

had further contended that some persons tried to disturb the possession of

the plaintiff in September 1999 and hence, the present suit.

6.The defendant had contended that the decree passed in O.S.No.242

of 1967 on the file of the District Munsif Court, Kuzhithurai is null and void

on the ground that it was filed against a dead person namely Siluvai

Arukkanchi. That apart without impleading all the legal heirs of the

deceased defendant, only one of the legal heirs who was a minor at that

point of time was impleaded. The defendant had further contended that the

said decree is invalid and the plaintiff did not get physical possession of the

property, but it was only a pa