Madras High CourtKrishnammal vs Sahadevan on 23 April, 2018Author:M.SundarBench:M.SundarBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               
DATED: 23.04.2018  

CORAM   

THE HONOURABLE MR. JUSTICE M.SUNDAR           

S.A(MD).No.563 of 2008  
and 
   M.P.(MD).Nos.1 of 2008 and 1 of 2015 
Krishnammal                                                     ... Appellant

Vs.
1.Sahadevan 
2.Avudaiammal  
3.Periyamuniammal  
4.Chinnamuniammal   
5.Kalichamy 
6.Krishnasamy  
7.Velu                                                           ... Respondents

PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
praying to set aside the decree and the judgment dated 29.08.2007 rendered in
A.S.No.27 of 2007 on the file of the Subordinate Judge, Virudhunagar,
reversing the decree and the judgment dated 21.12.2006 rendered in O.S.No.55
of 2001 on the file of the District Munsif of Virudhunagar, by allowing this
Second Appeal. 

!For Appellant                 :  Mrs.Jessi Jeeva Priya

^For Respondents 1 &2          :  Mr.S.Kadarkarai
                For Respondents 3,5,6 & 7 : No appearance  

:JUDGMENTThis second appeal originates from and arises out of a suit being
O.S.No.55 of 2001, on the file of the District Munsif Court, Virudhunagar.
The 'District Munsif Court, Virudhunagar' shall hereinafter be referred to as
'trial Court', in this judgment.2.The sole plaintiff in the trial Court, one Krishnammal, is the lone
appellant in the instant second appeal before me. In the trial Court, there
were eight defendants. Pending suit, defendant No.3, one Sevuha Thevar died.
Therefore, barring Defendant No.3, the other seven defendants are the seven
respondents before me, in this second appeal.  Respondents 1 and 2 before me,
who were defendants 1 and 2 respectively, before trial Court are contesting
this second appeal.  Respondent No.4 before me, who was Defendant No.5 in the 
trial Court, has been given up today by way of an endorsement made by the
learned Counsel for appellant, which reads as follows:?The 4th respondent is given up and the same may be recorded?3.Other defendants, other than defendants 1 and 2 and Defendant No.5,
who are respondents 3, 5, 6 and 7 before me have been duly served, their
names are shown in the cause list and I am informed that no Counsel has
entered appearance on their behalf.  Their names were called out aloud thrice
in the Court, adjoining corridor and in the visitors gallery.  No response.
Therefore, I deem it appropriate to set them ex-parte in this second appeal.4.From hereon, the parties to this second appeal shall be referred to
by their respective ranks in the trial Court for the sake of convenience and
clarity.  To state this with more specificity, I deem it appropriate to say
that the lone appellant before me shall be referred to as the plaintiff and
respondents 1 and 2 before me shall be referred to as defendants 1 and 2,
respectively.  Respondents before me shall collectively be referred to as
defendants.5.Aforesaid suit from which this second appeal originates ie.,
O.S.No.55 of 2001, was filed by the plaintiff in the trial Court on
20.02.2001. Prayer in the trial Court is for bare injunction qua possession
with regard to the suit property.  The suit property as can be culled out
from the decree of the trial Court is comprised in Survey No.1153/1 in Enjar
Village, Mangalam firka, Sivakasi Taluk, Virudhunagar District.  The land
extent is 46 + cents and in terms of superstructure, there is a residential
building thereon and the residential building bears Door No.3/1.  For the
sake of clarity, I deem it appropriate to extract the schedule of property in
the trial Court decree and the same reads as follows:?Propertied in S.No.1153/1 to an extent of 46 + cents at Enjar Village,
mangalam Firika, Suvakasi Taluk, Virudhunagar District and a residential
building therin having Door No.3/1.?6.The aforesaid property (land and superstructure) shall henceforth be
referred to as ?suit property? in this judgment for the sake of brevity,
convenience and clarity.7.It is the case of the plaintiff that the suit property is plaintiff's
husband one Muthuveerappa Thevar's ancestral property. To be precise, the
entire property contained in S.No.1153/1 or in other words entire Survey
No.1153/1, was originally owned by one Muthuveerappa Thevar @ Vellai Thevar, 
grandfather of plaintiff's husband. To be noted, pliantiff's husband and
plaintiff's spouse's grandfather share a common name.8.It is the case of the plaintiff that her spouse got the suit property
by way of oral partition. As this is not disputed by defendants 1 and 2, who
are contesting this second appeal, I deem it unnecessary to get into the
detailing of the partition and the devolutions of the property over three
generations.9.Plaintiff's spouse Muthuveerappa Thevar's brother is Sangiliveerappa
Thevar.  Sangiliveerappa Thevar also got 46 + cents of property in the same
survey No.1153/1, from his ancestors in a manner identical to the one in
which plaintiff's husband got 46 + cents.  Defendants 1 and 2 are purchasers,
who have purchased from Sangiliveerappa Thevar and others vide three sale
deeds dated 03.07.1953, 26.08.1974 and 22.01.1964, which have been marked as   
Exhibits B.1., B.2., and B.3., respectively, in the trial Court.10.With regard to pleadings in the trial court, it is the specific case
of defendants 1 and 2 that they are not interfering with plaintiff's
possession and enjoyment of suit property.  It is also the specific case of
defendants 1 and 2 that they have a ?Vaikkaal Vazhi Nadaipaathai? on the
northern side of the suit property.  This is articulated in paragraph No.7 of
the written statement and I deem it appropriate to extract paragraph No.7,
which reads as follows:?7.In fact the plaintiff is interfering with the movements of the
defendants through the tha;f;fhy; tHp eilghij which is situate far north of
her house and these defendants are not interfering with her right of
possession and enjoyment.?[Underlining made by me to supply emphasis and highlight.]11.On the aforesaid rival pleadings which have been set out very
broadly, parties went to trial.  Sole plaintiff examined himself as   P.W.1
and Defendant No.1, Sahadevan, examined himself as D.W.1.  There was only one   
witness on the side of plaintiff and likewise, there was only one witness on
the side of the defendants. With regard to documentary evidence on the side
of the plaintiff, six exhibits namely, Ex.A.1 to Ex.A.6 were marked.  On the
side of the defendants, three exhibits, namely, Ex.B.1 to Ex.B.3 (about which
I have mentioned supra) have been marked. Besides this, seven exhibits, ie.,
Ex.C.1 to Ex.C.7, have been marked.  These seven exhibits are two reports of
the Advocate Commissioner, two sketches filed by the Advocate Commissioner,  
one field sketch filed by the Government Surveyor, Revenue receipts ie.,
Chitta, Adangal for the suit property and the field map for entire Survey
No.1153.  To be noted, the field map for entire Survey No.1153, which is
described as ?Pula Varaipadam? has been marked as Ex.C.7.  Further, to be  
noted, in the printed judgment of the trial Court placed before me, Ex.C.2.,
has been described as Surveyor's report, but, on a perusal of Ex.C.2., (from
the records received from the Courts below), it is seen that Ex.C.2, is
actually a field map together with revenue classifications filed by the
Government jurisdictional Surveyor, which has been marked as    Ex.C.2.12.After full contest, the trial Court decreed the suit as prayed for
by judgment and decree dated 21.12.2006.  Defendants 1 and 2 and defendants 4 
to 8 (excluding Defendant No.3, who died pending suit in the trial Court as
mentioned supra) carried the matter in appeal by way of a regular first
appeal underSection 96of the Code of Civil Procedure, 1908 (hereinafter
referred as ?CPC? for brevity).  The regular first appeal is A.S.No.27 of
2007 and it is on the file of the Subordinate Judge's Court, Virudhunagar.The 'Subordinate Judge's Court, Virudhunagar' shall hereinafter be referred
to as 'first appellate Court', for the sake of convenience and clarity.
Though obvious, for the purpose of completing facts with clarity, I deem it
appropriate to mention that sole plaintiff Krishnammal was arrayed as lone
respondent in the first appellate Court.13.After full contest, the first appellate Court allowed the aforesaid
appeal in A.S.No.27 of 2007, in and by judgment and decree dated 29.08.2007.14.To be noted, the first appellate Court has reversed the judgment and
decree of the trial Court, primarily on the ground that no police complaint
has been filed by the plaintiff, regarding the interference with plaintiff's
possession of suit property said to have been caused by the defendants.  I
shall refer to this and there shall be some elaboration of this infra
elsewhere in this judgment.15.Aggrieved by the reversing judgment and decree of the first
appellate Court, plaintiff carried the matter to this Court, by way of a
second appeal underSection 100CPC ie., the instant second appeal 
S.A.(MD)No.563 of 2008. Instant second appeal was filed on 28.04.2008.
Instant second appeal was admitted by this Court on 16.06.2008, on one
substantial question of law. I deem it appropriate to extract that one
substantial question of law. For the sake of convenience and clarity, I deem
it appropriate to extract the entire admission order of this Court dated
16.06.2008.  I do so and the same reads as follows:?ADMIT.  The following substantial question of law has been formulated
in this appeal for consideration:?Whether the first Appellate court is correct in law in coming to a
conclusion that the plaintiff should establish the alleged trespass made by
the defendant by way of preferring a police complaint before instituting a
suit??Notice to the respondents returnable by four (4) weeks.?16.Respondents were served and only respondents 1 and 2 are contesting.These details have already been set out by me supra.17.Thus, this second appeal is now before me for final disposal.18.Mrs.Jessi Jeeva Priya, learned Counsel, on behalf of the sole
appellant and Mr.S.Kadarkarai, learned Counsel on behalf of respondents 1 and
2 are before me.  I have heard both the learned Counsel elaborately.19.Before I proceed further, it may be necessary to extract the field
map/sketch filed by the jurisdictional Government Surveyor in the trial Court
which has been marked as part of Ex.C.2. The field sketch is as follows:20.To be noted, what has been shown as 1C (orange marked portion) is 
plaintiff's property and what has been shown as 1B (yellow marked portion) is
property belonging to defendants 1 and 2.21.Both the aforesaid learned Counsel made submissions that were not 
only crisp, but, equally fair. From such submissions and from a perusal of
records of the Courts below, which are before me, it emerges without any
doubt in my mind that the entire matter turns on a very very narrow compass.22.Defendants 1 and 2 have taken a very fair stand in the trial Court
itself that they are not interfering with the right of possession and
enjoyment of suit property by plaintiff.  Therefore, the trial Court,
decreeing the suit should not hurt defendants 1 and 2.  However, the matter
was carried in appeal by way of a regular first appeal in A.S.No.27 of 2007,
as mentioned supra.  The reason for carrying it in appeal, I am given to
understand is that plaintiff is interfering with the defendants' rights,
particularly with regard to Vaikkaal Vazhi Nadaipaathai and the defendants'
property.23.To my mind, this reason for having preferred an appeal, appears to
be not completely unfounded in the light of paragraph   No.7 of the written
statement, which I have already extracted supra.24.However, that does not support the case of defendants 1 and 2 in the
instant second appeal. The reason is, as mentioned supra, the first appellate
Court has reversed the judgment and decree of the trial Court on the sole
ground that no police complaint has been filed by the plaintiff.  In other
words, the first appellate Court has come to the conclusion that there is no
cause of action for the suit. This, to my mind, appears to be incorrect. The
reasons are two-fold. One reason is, plaintiff has issued a suit notice. In
other words, prior to filing of the suit on 20.02.2001, plaintiff has issued
a notice through Advocate on 01.01.2001. This Advocate's notice, wherein it
is alleged that defendants are interfering with the possession of suit
property by the plaintiff had been marked as Ex.A.4.  The postal
acknowledgment card of the same has been marked as Ex.A.5.  More importantly,   
it is not in dispute that there is no response or reply from defendants for
Ex.A.4, though the same has been duly received, which  is evidenced by
Ex.A.5, postal acknowledgment card. The second reason is, there is nothing
that makes it imperative or necessary for a person, whose possession is
threatened or disturbed to lodge a police complaint before filing a civil
suit. The very fact that plaintiff has issued a legal notice which has been
duly served on defendants and the further fact that it has not evinced any
response or reply from the defendants is sufficient cause for the plaintiff
to lay the suit.25.Beyond this, it would be incorrect to hold that plaintiff should
have lodged a police complaint also and non-suit the plaintiff on that
ground. Plaintiff has filed a civil suit.  The need and necessity for filing
a police complaint may arise only when there is a law and order problem or
when there is some other offence that has been committed. With regard to
interfering with possession, if a civil suit is filed after issuing notice
through lawyer with no response from noticees, it cannot be put against the
plaintiff, to say that a police complaint ought to have been lodged.  This
part of the judgment of the first appellate Court is contained in paragraph
No.13 of the printed judgment placed before me.  This part is contained
between placitum 25 and 35 at page 5 of the printed judgment.  I deem it
appropriate to extract the same.?13)..... . .... there is no police complaint or any report filed by
the plaintiff regarding the disturbance caused by the defendants.  Hence
there is no prima facie case in the plaintiff's case and there is no balance
of convenience for the plaintiff and also DW1 admitted in the cross-
examination, they did not claim any right over the plaintiff's property.?26.However, with regard to the reason given by defendants 1 and 2 for
preferring the first appeal, there is a mention about the same in the
judgment of the first appellate Court also. That is contained in paragraph
No.12.  I deem it appropriate to extract the same.?12).... . Eventhough both parties admitted their own properties near
the channel pathway, the plaintiff did not elicit that there is a dispute in
the channel pathway.?27.As mentioned supra, it is the specific case of defendants       1
and 2 that plaintiff is interfering with the channel pathway and their
property. However, as alluded to supra, even if that be true, that does not
support the case of defendants 1 and 2 in the instant second appeal. If that
be true, the remedy for defendants is elsewhere and I shall mention the same
infra in this judgment.28.I now turn to the substantial question of law on which, this second
appeal was admitted.29.A reading of the substantial question of law would reveal that this
Court has admitted the second appeal primarily on the question as to whether
the first appellate Court was correct in law in coming to the conclusion that
the plaintiff should establish alleged trespass by defendants by way of
preferring a police complaint before instituting a suit.  I have already
discussed this aspect of the matter supra in this judgment. I have held that
the issue of a suit notice (Advocate's notice Ex.A.4), postal acknowledgment
card for the same (Ex.A.5) and the admitted position that there was no reply
or response for the same is sufficient for institution of the suit.
Therefore, in the light of the discussion supra, which I have restated here,
it is an inevitable sequitur that answer to the substantial question of law
is in the negative. I answer the substantial question of law in the negative.
In other words, I answer it in favour of the plaintiff (appellant in this
second appeal) and against defendants 1 and 2 (respondents 1 and 2 in this
second appeal).30.However, before parting with this case, it is necessary to mention
about the remedies that may be available for defendants 1 and 2, if their
pleading is true. Instead of filing an appeal against a bare injunction
decree, defendants should have filed separate proceedings to protect their
possession. As this second appeal is being disposed of by the High Court, I
deem it appropriate to clarify that it is open to defendants 1 and 2, to
initiate suitable proceedings against the plaintiff to protect the possession
of their property and the pathway channel, if there is any interference by
the plaintiff as alleged. In other words, the rights and contentions of
defendants 1 and 2, in this regard are left open.  To state this with greater
clarity and more specificity, I make it clear that if defendants 1 and 2
choose to file a suit of an appropriate nature alleging interference of their
property (defendants' property) and the pathway channel by the plaintiff, the
Court of first instance shall deal with the same on merits of the matter,
without being influenced by and untrammeled by what has been said in this
second appeal.  In other words, that question is left open for a Court of
appropriate jurisdiction to decide the matter on merits of the rival
contentions, if defendants 1 and 2 choose to adopt such a course.31.In the peculiar circumstances of the case where two issues
dovetailed, I have considered it necessary to take such a course and leave
that question open.32.As I have already answered the sole substantial question of law
arising in this second appeal in favour of the appellant, this second appeal
deserves to be allowed, however, subject to the aforesaid rider with regard
to questions being left open.33.Second appeal allowed, judgment and decree of first appellate Court
in A.S.No.27 of 2007 dated 29.08.2007, are set aside and decree and judgment
of the trial Court dated 21.12.2006 in O.S.No.55 of 2001, are restored.34.Considering the nature of the matter and the trajectory of
litigation, I leave the parties to bear their respective costs.  No costs.
Consequently, connected miscellaneous petitions are closed.To1.The Subordinate Judge, 
   Virudhunagar.2.The District Munsif,
   Virudhunagar.3.The Section Officer,
   E.R.Section/V.R.Section,
   Madurai Bench of Madras High Court, Madurai..