IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.03.2021

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

C.M.A.No.2688 of 2018

and

C.M.P.No.20281 of 2018

M.M.Shanmugam

..Appellant/3^rd Defendant

Vs.

1.Dr.A.K.D.Kumar

..1^st Respondent/Plaintiff

2.The Commissioner,

Corporation of Chennai,

Having Office at Rippon Buildings,

Park Town,

Chennai – 600 003.

..2^nd Respondent/

1^st Defendant

3.The Assistant Executive Engineer,

Division No.45, Zone 15,

Corporation of Chennai,

Sholinganallur,

Chennai – 600 119.

..3^rd Respondent/2^nd Defendant

Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1

(r) of C.P.C., to set aside the order and Decreetal order dated

10.04.2017 made in I.A.No.1057 of 2016 in O.S.No.169 of 2016 on

the file of Principal District Court of Kancheepuram District at

Chengalpattu.

For Appellant : Mr.M.S.Krishnan

Senior Counsel

For M/s.Sarvabhauman Associates

For Respondents

: R1 – Mr.S.Rajasekar

R2 & R3 – M/s.Karthikaa Ashok

Senior Standing counsel

[For Chennai Corporation]

https://hcservices.ecourts.gov.in/hcservices/

J U D G M E N T

The Fair and Decreetal order dated 10.04.2017 passed in

I.A.No.1057 of 2016 is under challenge in the present Civil

Miscellaneous Appeal.

2. The 5^th defendant is the appellant before this Court. The

1^st respondent is the plaintiff, who instituted a suit for

Declaration of title and for Permanent injunction. Along with

the suit, the 1^st defendant filed an Interlocutory Application in

I.A.No.1057 of 2016 for interim injunction. The trial Court

adjudicated the grounds raised by the respective parties in the

Interlocutory Application and granted an injunction on the

ground of balance of convenience and a prima facie case of title

was established by the 1^st respondent / plaintiff.

3. The learned Senior counsel appearing on behalf of the

appellant mainly contended that the very observation made by the

trial Court with reference to the prima facie case of title in

favour of the 1^st respondent itself is erroneous, in view of

complicated nature of facts and circumstances and, those facts

and circumstances are to be adjudicated elaborately with

reference to various documents and evidences. If such an opinion

is formed by the trial Court regarding the title of a suit

property, then the same would affect the other parties to the

suit, while adjudication of issues during the final hearing. The

learned Senior counsel is of an opinion that the 1^st respondent

has encroached the public road as per the approved layout and

therefore, the said portion of the encroachment is to be removed

for the benefit of the general public. With reference to the

other issues, the parties may be given liberty to adjudicate

elaborately during the trial. The learned Senior counsel made a

submission that the 1^st respondent has no title at all. The trial

Court, while deciding the Interlocutory Application, gone to the

extent of adjudicating the title and form an opinion and granted

an injunction and therefore, such observations would affect the

rights of the other parties during the final adjudication.

4. The learned counsel appearing on behalf of the 1^st

respondent objected the said contentions by stating that based

on certain admitted facts, the 1^st respondent had established his

title. In view of the fact that the 1^st respondent/plaintiff

could able to establish his title before the trial Court, the

trial Court made a finding that the plaintiff established prima

facie case of title and applying the principles of balance of

convenience, an injunction was granted. The earlier notice

issued by the Chennai Corporation authorities was challenged by

the first respondent and the matter went up to the Hon'ble

Division Bench and the Hon'ble Division Bench made a finding

that the parties have to adjudicate the issues before the

https://hcservices.