Madras High Court
Malaiakkal vs Kandaswamy on 27 November, 2000
S.A.Nos.1881 and 1882 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 09.04.2025
Judgment Delivered on : 18.08.2025
Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
S.A.Nos.1881 and 1882 of 2001
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1. Malaiakkal
2. Manickam .. Appellants in S.A.Nos.1881 & 1882 of 2001
Vs.
1. Kandaswamy
2. Veeragounder
3. Bomma Gounder
4. Nalluswamy Gounder
5. Seerangammal
6. Vaiyapuri
7. Mookkai Ammal
8. Vairappan
9. Murugesan
10. Rajammal @ Palaniammal
(No notice necessary
for Rajammal @ Palaniammal,
since she remained ex-parte
in lower Court)
.. Respondents in S.A.No.1881 of 2001
1. Nallusamy
2. Veeragounder
3. Kandaswami
4. Pomman Gounder
5. Palaniappan
6. Manickam
7. Veerappan
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S.A.Nos.1881 and 1882 of 2001
8. Murugesan
9. Rajammal
.. Respondents in S.A.No.1882 of 2001
Second Appeal No.1881 of 2001 filed under Section 100 of the Code of
Civil Procedure against the judgment and decree passed in A.S.No.156 of 1995,
dated 27.11.2000 on the file of the Subordinate Court, Kulithalai, reversing the
judgment and decree passed in O.S.No.257 of 1988, dated 10.03.1992 on the
file of the Principal District Munsif Court, Kulithalai.
Second Appeal No.1882 of 2001 filed under Section 100 of the Code of
Civil Procedure against the judgment and decree passed in A.S.No.157 of 1995,
dated 27.11.2000 on the file of the Subordinate Court, Kulithalai, reversing the
judgment and decree passed in O.S.No.495 of 1988, dated 10.03.1992 on the
file of the Principal District Munsif Court, Kulithalai.
For appellants in both the appeals : Mr.G.Vasudevan
For respondents in both the appeals: Mr.K.Govindarajan
for M/s.Sarvabhauman Associates
for RR-1 to 3
No appearance for RR.4 to 9
COMMON JUDGMENT
Page No.2/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 Since both the Second Appeals arise out of a common judgment in the First Appeals, this Court heard both the Second Appeals together and is passing the present common judgment.
2. Second Appeal No.1881 of 2001 is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 27.11.2000, passed in A.S.No.156 of 1995 on the file of the Subordinate Court, Kulithalai, reversing the judgment and decree dated 10.03.1992, passed in O.S.No.257 of 1988 on the file of the Principal District Munsif Court, Kulithalai.
3. Second Appeal No.1882 of 2001 is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 27.11.2000, passed in A.S.No.157 of 1995 on the file of the Subordinate Court, Kulithalai, reversing the judgment and decree dated 10.03.1992, passed in O.S.No.495 of 1988 on the file of the Principal District Munsif Court, Kulithalai.
4. The suit in O.S.No.257 of 1988 was filed by the plaintiffs, stating as follows:
The sketch of the suit properties in the ABCD portion represents the residential property of both the plaintiffs and the defendants. The house of the plaintiffs is situated below the said property. It was recently sub-divided as S.No. 391/10-B. The house of the defendants is situated above the said property. The Page No.3/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 portion ABEF, running north–south on the northern side of the properties, and the portion IHJK, running south–north on the western side, together form the common cart-track providing access to the suit properties. GK represents the top end part of the properties, which belonged to the ancestors. The father of the plaintiffs is Kulanthaivel and the father of defendants 1 to 4 is Vaiyapuri. The parties originally lived as a joint family and enjoyed the properties, and about fifty years ago, the properties were divided equally. The properties originally belonging to Chinnu Gounder and Pomma Gounder were subsequently obtained by Vaiyapuri and Kulanthaivel through purchase. To the north of the ancestral properties lies the village common land, and to the east is Mudakanaangulam, adjacent to the Panchayat road and drinking well. After the demise of Chinnu Gounder and Pomma Gounder, during partition, the properties were divided, and for the convenience of the sharers and agricultural activities, the cart-track was used for transporting goods and for access to the house properties. The common pathway has been enjoyed by both the plaintiffs and the defendants without interruption for over fifty years. Both parties have been using this pathway as a common cart-track, claiming easementary right and also adverse possession. The pathway runs east–west, with a width of ten feet and a length of four hundred feet, and has been in continuous use for over fifty years. The defendants 1 to 4 are the sons of Vaiyapuri Gounder, the fifth defendant is the wife of the fourth defendant, and defendants 6 and 7 are their son and daughter- in-law. Due to certain disputes between the women of both families, the Page No.4/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 defendants prevented the plaintiffs from using the pathway and attempted to destroy it. The defendants have no right to do so. The action of the defendants is illegal, and as they are influential persons, they may commit further acts of interference. Hence, the plaintiffs pray that the defendants be restrained by a decree of permanent injunction.
5. The stand of the defendants in the written statement, adopted by all the defendants in O.S.No.257 of 1988, is as follows:
The suit properties are only in S.F.No.391/10 and not in S.F.No.391/10B, as wrongly stated to have been sub-divided. The old patta is No.580, which stands in the name of the defendants. Later, it was converted into a joint patta of defendants 1 to 4, and the new joint patta is No.2039. The plaintiffs are not entitled to any right or possession in respect of the suit properties. It is not correct to state that the plaintiffs and defendants have a common pathway lying east-west. It is only a false claim of the plaintiffs that the defendants are not entitled to the suit properties. The properties allotted to Chinnu Gounder and Pomma Gounder were purchased by Vaiyapuri and Kulandaivelu. The properties that belonged to the share of Pomma Gounder were purchased by one Kandasamy ten years ago. The said Kulanthaivelu did not get any property by sale that was allotted to Pomma Gounder and Chinnu Gounder. At the time of division of properties, for convenient transport of agricultural goods to the northern portions and to reach the east-west public pathway, certain lands were Page No.5/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 used, but not as claimed by the plaintiffs. It is incorrect to state that ABCD and EFGH portions are public pathways used for the past 50 years. Only the defendants are entitled to use the ABCD and south-north pathways, not the plaintiffs. It is incorrect to state that the plaintiffs have perfected any right by adverse possession. The plaintiffs are not entitled to any right over the suit properties. It is also incorrect to state that 400 feet length and 10 feet breadth of the property are used as a regular pathway. It is not correct that the plaintiffs ever walked through the suit properties. The plaintiffs are not entitled to permanent injunction, and there is no cause of action to file the suit. Hence, the suit may be dismissed.
6. The plea of the plaintiffs in the plaint in O.S.No.495 of 1988 is as follows:
The suit properties are the family properties earlier allotted to the plaintiffs. At the time of partition, the suit properties were allotted to the father of the plaintiffs, and afterwards, the plaintiffs have been in possession and enjoyment. The defendants have no right, title, or interest over the suit properties. The third defendant is claiming title to the suit properties and has filed a case against the plaintiffs and others. The defendants 1 and 2, along with the assistance of others, on 26.10.1988, attempted to divide the suit properties, which was immediately stopped by the plaintiffs. The defendants have no right to do so. Hence, the action of the defendants should be restrained by a decree of Page No.6/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 permanent injunction.
7. The case of the defendants in O.S.No.495 of 1988, in their written statement, is as follows:
There are no proper details about the suit properties. No right is conferred on the plaintiffs regarding the suit properties. Along with the written statement, a sketch has been filed, from which it can be inferred that the suit properties are attached to the properties shown in the sketch i.e., to the north, east, and south which were owned by the forefathers of the parties. Those properties were partitioned among the family members of both the plaintiffs and the defendants 2 and 3. For facilitating the members of the family, both parties are using the same to enter and exit their properties and to bring agricultural goods in and out. The “JABECDIK” marked portion was made a general cart-track. To the east of the “KJ” portion, there exists another 10-foot-wide strip used by both parties as a common pathway (cart-track), marked as “KJDFEBA”. The houses of the plaintiffs and defendants 2 and 3 are in the “FECD” marked portion. On the upper portion of the sketch relating to the properties, there is a house belonging to the plaintiffs, sub-divided as S.No.391/10A. There are four huts therein—two facing south and two facing north and in the middle portion lies a common courtyard (“Muttram”). To the east of the property lies the house of the third defendant. The northern portion of the house is also a hut. The southern portion is a house with a shed. To the north, east, and south of the houses, there is a Page No.7/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 common pathway in front of the east-west facing houses allotted to both parties, and these properties are used as a common pathway. To prevent the plaintiffs from using the pathway, the third defendant filed O.S.No.257 of 1988 against them. The opposite parties in that suit are the plaintiffs in the present suit. The properties do not relate to the first defendant, and he has been wantonly added as a party. There is no cause of action to file the present suit. Hence, the defendants pray that the suit be dismissed with costs.
8. Before the trial Court, P.Ws.1 to 4 were examined on the side of the plaintiffs, and Exs.A-1 to A-3 were marked. On the side of the defendants, D.Ws. 1 and 2 were examined, and Exs.B-1 to B-12 were filed. Exs.C-1 and C-2 were marked as Court documents.
9. Since the appellants and respondents filed suits in respect of the same properties, both suits were tried together, and a joint trial was conducted. Evidence was recorded in O.S.No.257 of 1988 on the file of the Principal District Munsif Court, Kulithalai.
10. After trial and considering the oral and documentary evidence, the trial Court decreed the suit in O.S.No.257 of 1988 and dismissed the suit in O.S.No. 495 of 1988. As against the judgment and decree of the trial Court, First Appeals were filed in A.S.Nos.156 and 157 of 1995. The first appellate Court allowed Page No.8/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 both the First Appeals. As against the judgment and decree of the first appellate Court, the respective present Second Appeals have been filed by the aggrieved parties.
11. At the time of admitting both these Second Appeals, the following substantial questions of law have been formulated by this Court on 17.01.2002:
S.A.No.1881 of 2001:-
(i) Whether the lower appellate Court failed to consider Exhibits C1 and C2 being the Commissioner's report and plan, which discloses foot pathway and also the traces of Cart-track enjoyed by the appellants ? and
(ii) Whether the lower appellate Court failed to note that the suit properties were originally owned by the common ancestors of the plaintiffs and the defendant and enjoyed the suit pathway for more than 50 years and hence, the appellants have acquired easementary right ?
S.A.No.1882 of 2001:-
(i) Whether the lower appellate Court is correct in shifting the onus of proof on the defendants, especially when the plaintiffs have proved their case and cannot rely on the weakness of the defence ?
(ii) Whether the lower appellate Court failed to consider Exhibits C1 and Page No.9/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 C2 being the Commissioner's report and plan which discloses the foot pathway and also the traces of cart-track enjoyed by the appellants ? and
(iii) Whether the lower appellate Court failed to note that the suit properties were originally owned by the common ancestors of the plaintiffs and the defendant and enjoyed the suit pathway for more than 50 years and hence, the appellants have acquired easementary right ?
12. Learned counsel for the appellants contended that there was a pathway and cart-track enjoyed by the appellants. Even as per the Commissioner’s report and plan, i.e., Exs. C1 and C2, there is a pathway enjoyed by the appellants. The appellants and respondents were members of a joint family and enjoyed the properties for more than 50 years, and hence, they have acquired an easementary right in respect of the suit pathway. The suit pathway was enjoyed by the ancestors of the appellants and respondents for more than 50 years, and hence, it is probable that the appellants’ family had been using the pathway for more than the statutory period, thereby acquiring title by prescription. Under Ex. A3, the suit properties were subdivided in S.No. 391/10 as S.No.391/10-B in respect of 0.30 hectares enjoyed by the appellants. Though the trial Court rightly appreciated the oral and documentary evidence and decreed the suit filed by the appellants and dismissed the suit filed by the respondents, the lower appellate Court failed to consider Exs. C1 and C2, being the Commissioner’s report and plan, which disclose the pathway and the Page No.10/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 existence of the cart-track enjoyed by the appellants, and erroneously set aside the judgment and decree passed by the trial Court and allowed the First Appeals. Therefore, the present Second Appeals have been filed by the respective parties.
13. Learned counsel for the appellants further submitted that the plaintiffs in the other suit had to prove their case on their own strength and could not take advantage of the loopholes left by the defendants. Unfortunately, though the trial Court rightly decreed the suit, the first appellate Court failed to consider that the suit properties were originally under the common ancestors and subsequently, after changing hands several times, the appellants and respondents have been enjoying the suit properties as a common pathway and cart-track, which is confirmed by the Commissioner’s report. Therefore, the judgments and decrees of the first appellate Court are liable to be set aside and those of the trial Court restored by allowing the present Second Appeals.
14. It was further contended that the suit properties are in the enjoyment of both the appellants and the respondents, and they have been in joint use for more than 50 years. Therefore, the first appellate Court failed to consider the said fact and erroneously allowed the First Appeals.
15. Learned counsel for the respondents submitted that the suit properties Page No.11/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 are only in S.F. No. 391/10 and not in S.F. No. 391/10-B. The old patta is Patta No. 580, which stands in the name of the defendants, and thereafter, a joint patta was issued to defendants 1 to 4 as Patta No. 2039. The appellants are not entitled to any right or possession over the suit properties. The suit properties are not a common pathway and lie on the East and West. The appellants are not entitled to the suit properties, which were allotted to Chinna Gounder and later purchased by Vaiyapuri and Kulandaivel. The properties that belonged to the share of Chinna Gounder were obtained by Kandasamy through sale ten years ago. The said Kulandaivel did not purchase any property that was allotted to Pomma Gounder and Chinna Gounder. The “ABCD” and “EFGH” pathways have not been used as public pathways for the past 50 years, and the plaintiffs are not entitled to claim any right over the South–North pathway. The plaintiffs are not entitled to claim adverse possession or any right over the suit properties. The plaintiffs have incorrectly described the suit properties and have falsely stated the measurements as 400 feet in length and 10 feet in breadth as though they were being used as a regular pathway. The plaintiffs have never used the pathway for walking through the suit properties. Therefore, they are not entitled to any permanent injunction. The trial Court failed to properly appreciate the evidence and wrongly decreed the suits. However, the first appellate Court rightly re-appreciated the evidence and allowed the First Appeals. Hence, there is no merit in the Second Appeals, which deserve to be dismissed. Page No.12/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001
16. Though both the suits were tried together and a common judgment was rendered, the same had been challenged, and the respective aggrieved parties have filed the First Appeals. The first appellate Court rightly re- appreciated the evidence, set aside the judgment of the trial Court, and allowed both the First Appeals. Challenging the same, the appellants have filed both these Second Appeals before this Court.
17. The main contention of the appellants is that the suit properties are common pathways as described in the plaint and that both the properties originally belonged to the common ancestors. Even for the past 50 years, both parties have been using the suit properties as a common pathway and cart-track. Therefore, the appellants are entitled to use the said pathway by right of prescription and easement. Though the trial Court rightly appreciated the evidence and facts and granted a decree, the first appellate Court erroneously reversed the same.
18. The specific case of the respondents is that the suit properties were never used as a common pathway or cart-track. The respondents are entitled to use the suit properties as their exclusive properties. The appellants have not produced any documentary evidence to show that the suit properties were used as a common pathway or cart-track, as claimed by them. Page No.13/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001
19. Pending both suits, a Commissioner was appointed who inspected the suit properties, and even in his report, he did not state that the pathway had been prescribed by the appellants. Therefore, based on the oral and documentary evidence, the admission of the appellants, and the Commissioner’s report and plan, the first appellate Court, being the final fact-finding Court, rightly re-appreciated the evidence and allowed the First Appeals by setting aside the common judgment passed by the trial Court. There is no merit in both these Second Appeals, and they deserve to be dismissed.
20. Heard both sides and perused the materials available on record.
21. In this case, admittedly, both the parties have filed the respective suits for bare injunction. According to the appellants, it is only the suit properties which are a common pathway with 10 feet is length and 400 feet is breadth. The East- West pathway is existing with 10 feet breadth with 400 feet length and the North- South pathway extends for one furlong breadth. The said pathway has existed for more than 50 years and has been used by both parties as a pathway. Therefore, both the parties have obtained right from their predecessor-in-title and both the parties have been enjoying the suit properties commonly, and therefore, one of the parties has no right to restrain the other parties from using the above said suit properties as common pathway.
22. In this case, since the suit properties are described only as a common Page No.14/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 pathway, one party claiming them as common pathway and the other party is claiming them as exclusively their own properties, the appellants have to establish that the suit properties, exist as on date as pleaded in the pleadings and that the same have been being used for more than the statutory period as a common pathway/cart-track. Even on the date of filing of the suits, the same pathway was existing as described in the plaint. Therefore, the appellants have to prove their right and the right to use the said pathway and existence of pathway.
23. On a reading of the materials on record, it is seen that the appellants had not produced any document to show that they have a right to use the suit properties as a pathway, much less than their own pathway/cart-track. Even the Commissioner's report and plan clearly show that there is only a footpath. There is no pathway existing as described in the pleadings of the appellants with the length and breadth as mentioned in the pleadings. Though the Advocate Commissioner stated that there was a foot-path, as shown in the Commissioner's report, there is no indication to use the pathway as the common pathway with a breadth of 10 feet and length of 400 feet and one furlong breadth.
24. Therefore, in the absence of any documentary evidence on the side of the appellants to show that they have got a right to use the suit properties as Page No.15/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 common pathway as described in the pleadings and also the Commissioner's report Exs.C-1 and C-2, the case of the appellants cannot be accepted.
25. On a reading of the judgment of the first appellate Court and on a perusal of the entire materials available on record and also considering the facts of these cases, it is clear that the first appellate Court had considered Exs.C-1 and C2 being the plan and report of the Commissioner, and rendered findings. Therefore, the first substantial question of law in S.A.No.1881 of 2001 and second substantial question of law in S.A.No.1882 of 2001 are answered against the appellants.
26. As far as the second substantial question of law is concerned in S.A.No.1881 of 2001 and the first and third substantial question of law in S.A.No. 1882 of 2002, are concerned, on a reading of the evidence of both the parties and also taking into account the oral and documentary evidence adduced by the parties, it is seen that the nature of the documents shows that the appellants do not have any right to use the suit properties as pathway. As already held, the Commissioner's report and plan do not disclose that the pathway, as described by the appellants in their pleadings, existed on the ground to such extent in breadth and length either on the date of filing of the suit or on the date of filing of the Commissioner's report.
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27. When the appellants are claiming the right of pathway as a common pathway, as used by their ancestors for more than 50 years and they have the right of use of the pathway as an easementary right or right by prescription, it is for the appellants to establish that the common ancestors were enjoying the suit properties as common pathway/cart-track and the appellant's ancestors and subsequently, the appellants were using the same continuously for more than 50 years, and were enjoying the suit properties as a common pathway and common cart-track, and they have not produced oral and documentary evidence to prove the same, but the Commissioner's report shows otherwise. Therefore, the person who claims right of the properties as common properties, it is for that party to establish the same.
28. Admittedly, in this case, upon considering the case of the plaintiffs in the respective suits, it is seen that they have to establish their case by pleadings and oral and documentary evidence, and the plaintiffs cannot take advantage of the loop-holes left by the defendants or on the weakness of the defendant's case.
29. In this case, the plaintiffs who have filed the respective suits, cannot state that the burden of proof had been shifted on the defendants. The plaintiffs have to prove their own pleadings and oral and documentary evidence. Page No.17/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001
30. On a reading of the entire materials and pleadings in both cases, the oral and documentary evidence and also with the help of the Commissioner's report and plan, Exs.C-1 and C-2, it is crystal clear that the first appellate Court had re-appreciated the evidence and allowed the First Appeals. This Court does not find that the onus had been wrongly shifted by the first appellate Court and since both the parties have approached by way of separate suits with their own pleadings and oral and documentary evidence, and common judgments were rendered by the Courts below and also common evidence was adduced by the parties, and based on oral and documentary evidence, the appellants have not substantiated their pleadings. The appellants have stated that the suit properties are with specific measurements and the properties were used as a common pathway or cart-track, it is for the appellants to establish the same by oral and documentary evidence. The appellants have not produced documents to show that the suit properties have been prescribed or shown as common pathway or cart-track and the witnesses have also not specifically stated about the same, but the Commissioner's report and plan show otherwise. Though there is a pathway, but it is not as described by the appellants as stated by them and though both the parties have used the same adjacent portions of the suit properties, but however, when the appellants are claiming the same over the suit properties, it is for the appellants to establish their right to use the suit properties as common pathway or common cart-track.
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31. On a perusal of the documents produced by both parties, and also especially the Commissioner's report and plan, Exs.C-1 and C-2, it is crystal clear that the first appellate Court rightly re-appreciated both the oral and documentary evidence and found that the appellants have not established their right to use the suit properties as a common pathway or even cart-track and also the existence of the said pathway as described in the pleadings.
32. In the above facts and circumstances, this Court does not find any merit in both these Second Appeals. The substantial questions of law framed in these Second Appeals are answered in the above terms.
33. Accordingly, both the Second Appeals are dismissed. There shall be no order as to costs.
18.08.2025 Index: Yes/no Speaking Order: Yes/no Neutral Case citation: Yes/no cs Page No.19/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 To
1. The Subordinate Judge, Kulithalai.
2. The Principal District Munsif, Kulithalai.
3. The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
Page No.20/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm ) S.A.Nos.1881 and 1882 of 2001 P.VELMURUGAN, J cs Pre-delivery common judgment in S.A.Nos.1881 and 1882 of 2001 Common judgment delivered on 18.08.2025 Page No.21/21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/11/2025 06:56:43 pm )