S.A(MD)No.177 of 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 08.11.2021

CORAM

THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

S.A(MD)No.177 of 2011

and

M.P(MD)No.1 of 2011

1.T.K.Subramania Mudaliar

2.S.Srinivasa Sundar

3.S.Arun

... Appellants / Appellants / Defendants

Vs.

T.Subramania Mudaliar

... Respondent / Respondent / Plaintiff

Prayer: Second Appeal filed under Section 100 of the Code of Civil

Procedure against the judgment and decree, dated 20.10.2010, passed

in A.S.No.86 of 2010, on the file of the Additional Subordinate

Court, Tirunelveli, confirming the judgment and decree, dated

20.04.2010, passed in O.S.No.88 of 2006, on the file of the First

Additional District Munsif Court, Tirunelveli.

For Appellants

: Mr.D.Srinivasaragavan

For Respondent

: Mr.R.Manimaran

JUDGMENT

The concurrent Judgments and decrees passed in O.S.No.88 of

2006 by the First Additional District Munsif Court, Tirunelveli and

in A.S.No.86 of 2010 by the Additional Subordinate Court,

Tirunelveli, are being challenged in the present second appeal.

2. The respondent / plaintiff has instituted a suit in

O.S.No.88 of 2006 on the file of the trial Court for the relief of

permanent injunction, wherein the present appellants have been shown

as defendants 1 to 3.

3. It is the case of the respondent / plaintiff that the suit

property originally belonged to one T.K.Kailasa Sundara Mudaliar and

T.K.Thirumalaiappa Mudaliar. The said T.K.Thirumalaiappa Mudaliar

filed a suit in O.S.No.61 of 1947 before the Sub-Court, Tirunelveli,

for partition. The said suit ended in a compromise in I.A.No.445 of

1947 and according to the said compromise, 15-1/2 cents was allotted

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S.A(MD)No.177 of 2011

to the father of the plaintiff, namely, T.K.Thirumalaiappa Mudaliar

and he was in possession and enjoyment of the same. The said

T.K.Kailasa Sundara Mudaliar died in the year 1962, leaving behind

the first defendant and his other sons. The brothers of the

plaintiff filed a suit in O.S.No.187 of 2000 before the Principal

Sub-Court, Tirunelveli, against their father T.K.Thirumalaiappa

Mudaliar and the plaintiff for partition. The said suit also ended

in a compromise and the suit property in Survey No.340/2C measuring

an extent of 15-1/2 cents was allotted to the plaintiff and a final

decree was also passed. The plaintiff has also applied for separate

patta in his name and a patta was also issued in his name. The

District Collector, Tirunelveli, sent a notice to the plaintiff

regarding acquisition of 7-3/4 cents for the purpose of underground

drainage. The plaintiff also executed a sale deed to an extent of 7-

3/4 cents in favour of the Tirunelveli Corporation and he was also

enjoying remaining 7-3/4 cents. Since the defendants are

intimidating the plaintiff from enjoying the suit property, the

plaintiff has instituted the suit.

4. In the written statement filed on the side of the appellants

/ defendants, it is averred that the suit schedule property was part

of the property in O.S.No.61 of 1947 and there was a division in

Survey No.340/2 in equal halves. The defendants are not aware of the

allotment of 15-1/2 cents as per the said decree in O.S.No.187 of

2000. Hence, there are other shares and the plaintiff cannot

quantify it as 15-1/2 cents. The plaintiff has parted the share in

Survey No.340/2 in favour of the Corporation and the Tirunelveli

City Municipal Corporation has also made construction. Hence, the

Tirunelveli City Municipal Corporation is a proper and necessary

party and the suit is liable to be dismissed for non-joinder of

necessary parties and there is absolutely no cause of action for

instituting the suit.

5. Before the trial Court, on the side of the plaintiff, the

plaintiff examined himself as P.W.1 and Exs.A1 to A6 were marked.

On the side of the defendants, the first defendant was