Madras High Court
V.Ravichandran vs D.Purushothaman on 3 July, 2019
Author: S.S.Sundar
Bench: S.S.Sundar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
C.R.P(PD)(MD)No.506 of 2010
and
M.P.(MD)No.2 of 2010
V.Ravichandran : Petitioner
Vs.
D.Purushothaman : Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, against the fair and decreetal order passed in unnumbered I.A.No.
.. of 2009 in O.S.No.73 of 2006 on the file of District Munsif Court,
Thanjavur, dated 14.12.2009.
For Petitioner : Mr.M.P.Senthil
For Respondent : Mr.V.Chandrasekar
ORDER
This Civil Revision Petition is filed against the order passed in unnumbered interlocutory application in the suit in O.S.No.73 of 2006, on the file of the District Munsif Court, Thanjavur. http://www.judis.nic.in 2
2. The brief facts that are necessary for the disposal of the Civil Revision Petition as follows:
The revision petitioner is the plaintiff in the suit in O.S.No.73 of 2006, on the file of the District Munsif Court, Thanjavur, for mandatory injunction to remove the illegal construction made in the suit 'B' schedule property that is described as a common lane and shown in the schedule of property given the plaint. The suit is also for permanent injunction restraining the defendant from putting up any further construction in the suit 'B' schedule property ie., common lane as shown in the plaint plan.
3. It is not in dispute that the suit filed by the plaintiff was decreed and the appeal filed by the respondent herein in A.S.No.46 of 2007, on the file of the Additional Sub-Court, Thanjavur was also dismissed. However, the respondent herein, who is the defendant in the suit filed a second appeal in S.A.No.652 of 2008 before this Court. This Court has remitted the matter back to the Court below.
4.The judgment of this Court in second appeal in S.A.No.652 of 2008, particularly paragraphs 7, 8 and 9 are relevant in this case and hence, they are extracted here under :
“7. In the plaint, the plaintiff has stated that the suit property is a common lane. The plaint plan has not been marked http://www.judis.nic.in 3 before the trial court and the plaintiff had not taken any steps to mark the same. The suit property originally belonged to Rajamanikathammal. Ex.A.1 is the certified copy of the sale deed dated 08.02.1939. Ex.A.2 is the sale deed in favour of Jayabal. Rajamanickathammal sold the suit property under Ex.A.2 to the said Jayabal on 26.07.1984. Ex.A.3 is the settlement deed, under which, Jayabal settled the property on
05.021990 in favour of the plaintiff's mother Jayalakshmi, who in turn, settled the property in his favour on 13.05.1991 under Ex.A.4. The defendant claims to have purchased the suit property from one Narayanan. It is also the case of the defendant that Rajamanickathammal sold a portion of the property to Narayanan. The sale deed in favour of Narayanan had not been produced before the court. Earlier, the property sold in favour of the plaintiff's vendor was mortgaged under Ex.A.5. Exs.A6 and A7 are the notices issued to the plaintiff. Ex.A.8 is the receipt relating to payment of water charges. Exs.A.9 and A.10 are the encumbrance certificates. Ex.A.11 is the photographs and Ex.A.12 is the receipt relating to the photographs. Ex.A.13 is the sale deed. An Advocate Commissioner had been appointed in this case and he had filed his report.
8.It is the stand of the appellant/defendant that the suit property is not the common lane and that it was purchased by his predecessor in title. No doubt, in Ex.A.1, the suit property is shown as the common lane. In Ex.A.5, it is shown as the lane. D.W.1 had stated in his evidence that the existence of lane is mentioned in the sale deed in favour of Narayanan. Evidence of P.Ws.1 to 4 would show that there was a lane. Two suits were http://www.judis.nic.in 4 filed against the defendant and one suit ended in compromise and the title of the defendant was admitted. In the other suit, the title was disputed. So, the existence of a lane is correct. The plaintiff has claimed easementary right over the suit property. In order to grant such a relief, the true measurement must be shown. The plaint plan was not marked before the trial court. In the decree, the property is shown in rectangular shape whereas, the commissioner has found the property to be in a different shape. The Commissioner's report would show that a sun-shade is projecting on the property of the plaintiff. Unless the property is described and exhibited properly, the relief of injunction sought for by the plaintiff cannot be granted.
9.On a careful, consideration of the evidence available on record, it is clear that the suit property has not been described properly. On the other hand, the plaintiff's claim cannot be granted without there being any specific description of the property. Further, both the parties are unable to prove the actual measurement of the property. For want of definite particulars, the case cannot be thrown out of file. Hence, the matter is remanded back to the trial court to enable both the parties to adduce evidence with regard to the nature of property and its actual measurements. After hearing both the parties, the trial court is directed to dispose of the suit afresh on merits and in accordance with law. Both the parties shall appear before the trial court on 16.09.2008. The second appeal is disposed of accordingly. No costs. Connected miscellaneous petition is closed.
http://www.judis.nic.in 5
5. After remand, the revision petitioner filed an interlocutory application to amend the plaint to substitute the rough plan showing measurements.
6.It is stated that the purpose of filing the amendment petition is to give particulars of the description of the property with accuracy so that, there will be more clarity to identity of the suit property, as per the plan. However, the petition for amendment was dismissed on the ground that the order of remand was for the specific purpose and not to change the description of the property. It was observed by the lower Court that the amendment will change the nature of suit and therefore, the amendment petition filed by the revision petitioner is beyond the direction issued in the second appeal. The lower Court referred to the serious objections raised by the respondent in that petition. Aggrieved by the same, the present civil revision petition is filed by the plaintiff.
7. Though the amendment is to amend the schedule of property, the purpose of amendment is only to describe the suit property with the help of the plan to identify the encroachments and to give accuracy. It is not in dispute that the suit pathway is described in the plan as well. Merely because there is a discrepancy between the plan submitted by the Advocate Commissioner and the plan annexed to the plaint it cannot be http://www.judis.nic.in 6 stated that the suit property did not tally with the property as per the Commissioner's report. This Court has earlier found that the plaintiff's claim cannot be granted without having specific description of the property with reference to the plan.
8. Since the amendment is to supply additional information to describe the property, this court is of the view that the amendment will certainly go well with the expectations of this Court by ordering remand. As such, this Court is unable to agree with the reasonings of the lower Court, while dismissing the interlocutory application.
9. This Civil Revision Petition is allowed and the learned District Munsif, Thanjavur is directed to number the application filed by the revision petitioner for amendment. The petition for amendment stands allowed, however, subject to the objections or defence ie., available to the respondent. It is also open to the respondent to file an additional written statement raising all their objections regarding description of property as per plan. No costs. Consequently, connected miscellaneous petition is closed.
03.07.2019
Index : Yes / No
Internet : Yes / No
das
http://www.judis.nic.in
7
To
1.The District Munsif Court, Thanjavur.
2.The Section Officer, V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
8
S.S.SUNDAR.J.
das
C.R.P(PD)(MD)No.506 of 2010
and
M.P.(MD)No.2 of 2010
03.07.2019
http://www.judis.nic.in