BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :08.09.2021 CORAM:

THE HONOURABLE MRS.JUSTICE S.ANANTHI C.R.P.(PD)(MD).No.944 of 2021 and C.M.P(MD) No.5313 of 2021

1. A.Durairaj

2. D.Vishvakumar

3. B.Dhanalakshmi

4. A. Bose ... Petitioners -vs-

1. Arumugam @ Babu

2. Sundarammal ... Respondents PRAYER : This Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order 05.03.2021 passed in I.A.No.3 of 2020 in O.S.No.162 of 2019 on the file of the District Munsif Court, Rajapalayam.

For Petitioners : Mr.K.Sudalaiyandi For - R1 : Mr.M.Thirunavukkarasu For – R2 : No appearance

O R D E R

This Civil Revision Petition has been filed seeking a direction to set aside the fair and decreetal order 05.03.2021 passed in I.A.No.3 of 2020 in O.S.No.162 of 2019 on the file of the District Munsif Court, Rajapalayam.

2. Heard Mr.K.Sudalaiyandi, learned counsel appearing for the petitioners and Mr.M.Thirunavukkarasu, learned counsel appearing for the first respondent.

3. The petitioners/plaintiffs filed a suit in O.S.No.162 of 2019 on the file of the District Munsif Court, Rajapalayam only for declaration declaring that the 1^st and 2^nd schedule of property is a pathway jointly belongs to the petitioners and the 2^nd respondent herein. Except the other properties were also in the settlement deed which was marked as Ex.A1. Hence through this impugned order passed by the trial Court a valuable right of the petitioner to execute a settlement deed in favour of his son for the properties found in Ex.A1 is totally denied for technical reasons.

4. The learned counsel appearing for the petitioners would submit that the petitioners/Plaintiffs have filed an application in I.A.No. 3 of 2020 to substitute the certified copy of the settlement deed dated 08.11.1982 and to return the document to the petitioners. The aforesaid I.A. was dismissed by the District Munsif Court, Rajapalayam on 05.03.2021, on the ground that if the application is allowed, the nature of the suit will be changed. The said finding of the trial Court is contrary to law and liable to be set aside.

5. The suit has been filed only for declaration regarding pathway and also for mandatory injunction. The suit schedule property also shown as common pathway. The suit is no way connected with the property in the settlement deed. The only question to be decided in the suit is whether the path way is common or belongs to plaintiffs and the second defendant. The certified copy also substituted with the original document, even if the subsequent settlement deed contains about the pathway, no way, it will affect the decision to be given in O.S.No.162 of 2019. There is no dispute with regard to the rights of suit property, and the only dispute is with regard to the pathway, which would be decided only after trial. Certified copy of the settlement deed and certified copy also with original is no way connected to the suit.

6. Considering the facts and circumstances of the case, this Civil Revision Petition is allowed and order passed in I.A.No. 3 of 2020 in O.S.No.162 of 2019 is setaside. The learned District Munsif Court, Rajapalaym is directed to return the original settlement deed to the petitioners and substitute the settlement deed in the suit. No costs. Consequently the connected Civil Miscellaneous Petition is closed. If necessary the trial Court can direct the petitioners to produce the original settlement deed.

08.09.2021 Index : Yes / No Internet : Yes / No ebsi Note :

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To

1. The District Munsif Court, Rajapalayam.

S.ANANTHI ,J .

ebsi and C.M.P(MD) No.5313 of 2021

08.09.2021