Madras High Court
Jeyasingh vs Kamatchi Ammal (Died) ... 1St on 27 September, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.(MD)No.728 OF 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.728 of 2006
Jeyasingh ... Appellant / 1st Respondent /
Plaintiff
Vs.
1. Kamatchi Ammal (Died) ... 1st Respondent / Appellant /
1st Defendant
2. Kariapatti Major Panchayat,
Rep. By its Chairman. ... 2nd Respondent / 2nd Respondent/
2nd Defendant
3. K.Manoranjitham
(R-3 is brought on record as LR. of the deceased
1st Respondent vide Order dated 05.02.2021
made in M.P.(MD)No.1 of 2014) ... 3rd Respondent
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow the second appeal and set aside the judgment
and decree dated 21.03.2006 made in A.S.No.47 of 2005 on
the file of the Sub Court, Aruppukottai, reversing the
judgment and decree dated 19.01.2005 made in O.S.No.268 of
2000 on the file of the District Munsif Court, Aruppukottai.
For Appellant : Mr.P.T.S.Narendravasan
For R-2 & R-3 : No appearance.
***
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2 S.A.(MD)No.728 OF 2006
JUDGMENT
The plaintiff in O.S.No.268 of 2000 on the file of the District Munsif, Aruppukottai, is the appellant herein.
2. The suit was filed for seeking the relief of declaration, permanent injunction and mandatory injunction in respect of the suit property. The case of the plaintiff is that the suit property is a public street and that the private defendant had committed encroachment thereon. The contesting defendant filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial Court framed the necessary issues. The plaintiff examined himself as P.W.1 and two other witnesses were examined on his side. Ex.A.1 to Ex.A.23 were marked. The contesting defendant examined herself as D.W.1 and Ex.B.1 to Ex.B.11 were marked. An Advocate Commissioner was appointed and his reports and plans were marked as Court Exhibits 1 and 2. Through the third party witness, Witness Exhibits 1 and 2 were marked. After a consideration of the evidence on record, the trial Court by judgment and decree dated 19.01.2005 https://www.mhc.tn.gov.in/judis 2/8 3 S.A.(MD)No.728 OF 2006 decreed the suit. Aggrieved by the same, the contesting defendant Kamatchi Ammal filed A.S.No.47 of 2005 before the Sub Court, Aruppukottai. The first appellate Court by judgment and decree dated 21.03.2006 reversed the decree and allowed the appeal and dismissed the suit. Challenging the same, this second appeal came to be filed.
3. This second appeal was admitted on the following substantial questions of law:-
“ a) Whether the lower appellate Court is correct in reversing the judgment and decree of the trial Court, when the 1st defendant is estopped under law and on her own conduct on the foot of Ex.A.21 the decree passed in O.S. No.448 of 1979 on the file of the District Munsif Court, Manamadurai and she had withdrawn the suit in O.S.No.87 of 1987 filed by her by showing the suit property as Street?
b) Whether the lower appellate Court is correct in reversing the judgment and decree of the trial Court, when the principle of https://www.mhc.tn.gov.in/judis 3/8 4 S.A.(MD)No.728 OF 2006 Acquiescence is not applicable to the present case, when the 1st defendant had put up construction of wall in the suit property and projected the roof therein in spite of protests made by the plaintiff, which is substantiated from Ex.A.8 to A.16? “
4. During the pendency of the appeal, Kamatchi Ammal passed away. She had engaged a counsel to defend her in this appeal. Her daughter K.Manoranjitham was impleaded as the third respondent and she was duly served through Court notice. She has not chosen to engage any counsel. She is set ex-parte. The local body has also chosen to remain ex- parte. As per Order 41 Rule 17(2) of C.P.C., where the appellant appears and the defendant does not appear, the appeal shall be heard ex-parte. There is no need to adjourn the hearing of the appeal after setting the respondent who is absent as ex-parte. I take inspiration from Order 9 Rule 6 of C.P.C. in this regard. As per Order 9 Rule 6 of C.P.C., where the plaintiff appears and the defendant does not appear when the suit is called for hearing, the suit shall be https://www.mhc.tn.gov.in/judis 4/8 5 S.A.(MD)No.728 OF 2006 heard ex-parte, when summons have been duly served. If the summons have not been duly served, the Court shall direct second summon to be issued and served on the defendant. If it is proved that the summon was served on the defendant but not in sufficient time to enable him to appear, the Court shall postpone the hearing of the suit to a future day and shall direct notice on such day to be given to the defendant. The aforesaid provision does not state that the defendant who is absent should be set ex-parte and thereafter, the matter should be adjourned. Taking inspiration from this provision, I am of the view that there is no need to adjourn the hearing of the appeal. Of course the learned counsel who appeared for the deceased respondent has also not appeared. This is because the newly impleaded respondent had not chosen to give him Vakalath.
5. The case of the plaintiff / appellant is that the suit property was already declared as public street in O.S.No.448 of 1979 on the file of the District Munsif, Manamadurai, which was marked as Ex.A.21. The plaintiff in the said suit was none https://www.mhc.tn.gov.in/judis 5/8 6 S.A.(MD)No.728 OF 2006 other than the deceased respondent, namely, Kamatchi Ammal. Therefore, the deceased defendant was clearly estopped from denying the character of the suit property as a public street. I answer the first substantial question of law in favour of the appellant.
6. The trial Court decreed the suit and the same was reversed by the first appellate Court only for the reason that the plaintiff had acquiesced in the acts of encroachment committed by the deceased respondent. The first appellate Court ought to have noted that any street within the jurisdiction of a local body will vest with the local body. The character of the public street will not change with the passage of time. The learned counsel appearing for the appellant would point out that the appellant had been petitioning the authorities for removing the encroachment. This is evidence from Ex.A.10 and Ex.A.14. Even if the plaintiff had acquiesced, that would still not come in the way of granting relief. The Madurai Bench of Madras High Court had issued continuing mandamus to all the public authorities to ensure that the streets are always kept free of encroachment. The first appellate Court https://www.mhc.tn.gov.in/judis 6/8 7 S.A.(MD)No.728 OF 2006 misdirected itself in law by taking into account the conduct of the appellant. The issue on hand already stood concluded by the judgment and decree made in O.S.No.448 of 1979. When once the suit property was declared as a street, it has to be maintained as a street for ever and in perpetuity.
7. The second substantial question of law is answered in favour of the appellant. The impugned judgment and decree is set aside and the decision of the trial Court is restored. This second appeal is allowed. No costs.
27.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
2. Web copy of this order shall be uploaded on 24.01.2022.
https://www.mhc.tn.gov.in/judis 7/8 8 S.A.(MD)No.728 OF 2006 Note : Web copy of this order shall be uploaded on 20.01.2022. G.R.SWAMINATHAN,J. PMU To: 1. The Sub Judge, Aruppukottai. 2. The District Munsif, Aruppukottai. 3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai. S.A.(MD)No.728 of 2006
27.09.2021 https://www.mhc.tn.gov.in/judis 8/8