IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On

23.07.2021

Pronounced On

06.08.2021

CORAM

THE HON'BLE MR.JUSTICE C.SARAVANAN

S.A.No.282 of 2012

and

M.P.No.1 of 2012

(Through Video Conferencing)

Parasuraman

... Appellant/Appellant/Plaintiff

Vs.

1.Thangaraj

2.Vinayagam

... Respondents/Respondents/Defendants

Second Appeal filed under Section 100 of Civil Procedure

Code, 1908 against the Judgment and Decree dated 30.08.2011

passed in A.S.No.130 of 2005 on the file of the Sub Court,

Gingee confirming the Judgment and Decree dated 28.06.2005

passed in O.S.No.471 of 2000 on the file of the Principal

District Munsif Court, Gingee.

For Appellant

: M/s.Paul and Paul

For Respondents: Mr.T.Dhanasekaran

J U D G M E N T

I have heard the learned counsel for the appellant and

the learned counsel for the respondents. I have perused the

impugned Judgment and Decree dated 30.08.2011 passed by the

Sub Court, Gingee (hereinafter referred to as First Appellate

Court) in A.S.No.130 of 2005, the Judgment and Decree dated

28.06.2005 passed by the Principal District Munsif Court,

Gingee (hereinafter referrred to as Trial Court) in O.S.No.471

of 2000 and documents which were filed along with this Second

Appeal.

2. This appeal was listed for admission on 26.03.2012.

However, on the said date, only notice of admission was

ordered on the respondents. The respondents are thus

represented by the learned counsel Mr.T.Dhanasekaran.

3. The appellant was plaintiff and is aggrieved by the

impugned Judgment and Decree dated 30.08.2011 passed by the

First Appellate Court in A.S.No.130 of 2005.

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

4. By the impugned Judgment and Decree dated 30.08.2011,

the First Appellate Court dismissed the aforesaid appeal filed

by the appellant against the Judgment and Decree dated

28.06.2005 of the Trial Court in O.S.No.471 of 2000.

5. The appellant had filed the above suit for a

declaration and for a permanent injunction to restrain the

respondents from interfering with his peaceful possession of

the suit schedule properties stating that the appellant was

the owner of the 71 Palm Trees, 5 Morinda Tinctoria Trees

(Nona Trees) and 8 Neem Trees in 0.15.0 Ares of land in

S.No.311/3B, covered by Patta No.1472, Kist 0.48.

6. The respondents resisted the suit by filing a written

statement stating that the Trees in question which form part

of the suit schedule property were under the possession and

the control of the respondents from the time of his

predecessors and therefore the suit was not maintainable.

7. The Trial Court had framed the following issues for

consideration :-

i. Whether the palm trees are not stand in the

suit property?

ii.Whether the palm trees are in the

plaintiff's possession?

iii.Whether the palm trees are not handed over

to the plaintiff?

iv.Whether the plaintiff is entitled for

declaration and permanent injunction as

prayed for?

v. To what other reliefs?

8. The learned counsel for the appellant further submits

that the Trial Court committed an error in dismissing the suit

for a permanent injunction even though the respondent admitted

that the land in question where the Trees were situated

belonged to the appellant.

9. The learned counsel for the appellant submits that an

Advocate Commissioner was appointed by the Trial Court and a

report dated 10.09.2001 was filed along with a sketch which

was however not marked as a document before the Trial Court

while passing the its Judgment and Decree dated 28.06.2005.

The learned counsel for the appellant further submits that

after the report was filed, the respondents had also filed an

additional written statement, wherein, the respondents

admitted that the area where the Trees were situated was

indeed that of the appellant. However, the land to an extent

of 0.15.0 Ares (37.1 Cents) in S.No.311/3B, Patta