Partly allowed

Thiyagarajan Onthiriyar v. G.Chinnaiyan Onthiriyar

Madras HC8 Jan 2020SA(MD)/469/2017

Case brief

AI extract

What is this about?

In a second appeal regarding a property dispute involving a Samadhi, the High Court modified the permanent injunction decree. While upholding the respondent's title to the property, the court allowed the appellant to worship in the ancestral Samadhi situated on said land without obstruction.

What did the court decide?

The decree for permanent injunction was modified to allow the appellant to worship in the Samadhi without obstruction and to maintain it in proper condition.

Thiyagarajan Onthiriyar Vs G.Chinnaiyan Onthiriyar — Partition | Madras HC (2020)

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S.A.(MD) No.469 of 2017

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.01.2020 CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN S.A.(MD) No.469 of 2017 and C.M.P.(MD)No.9831 of 2017

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Thiyagarajan Onthiriyar

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... Appellant/Appellant/defendant

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vs. G.Chinnaiyan Onthiriyar ... Respondent/Respondent/Plaintiff

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PRAYER : This Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the decree and judgment, dated 16.12.2016 passed in A.S.No.29 of 2012 on the file of the Sub Court, Pattukottai by confirming the judgment and decree dated 30.03.2012 passed in O.S.No.25 of 2008 on the file of the District Munsif cum Judicial Magistrate, Orathanadu.

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For Appellant : Mr.D.R.Murugesan For Respondent : Mr.M.P.Senthil

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JUDGMENT

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The defendant in O.S.No.25 of 2008, who had suffered a decree for permanent injunction, at the hands of the Courts below have come up with this second appeal.

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The suit was laid by the plaintiff contending that the suit property is belonged to his ancestors. At a partition that took place between him and his brother on 13.06.1994, the suit property was allotted to him and he has been in possession and enjoyment of the same. The revenue records were mutated in his name and patta in Patta No.230 was also granted to him. Claiming that the defendant attempted to interfere with his possession on 10.04.2008, the plaintiff had come up with the suit seeking permanent injunction restraining the defendant from interfering with his possession.

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The suit was resisted by the defendant contending that the suit property does not belong to the plaintiff or his family. It is also claimed that there is a Samadhi of the ancestors of the defendant in Survey No.36/6B and the defendant has got right to perform poojas in the Samadhi as he has been doing in the past. The fact that the existence of the Samadhi has been suppressed in the suit was also pointed out by the defendant to contend that the plaintiff has come to Court with unclean hands and therefore, he is not entitled to a decree for permanent injunction.

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https://hcservices.ecourts.gov.in/hcservices/

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S.A.(MD) No.469 of 2017

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The defendants would also claim that the suit property of 81 cents was also allotted to his father's brother Sivasami and he has been in enjoyment of the same. Since Sivasami died interstate unmarried, the suit property devolved on the defendant's father and therefore, the defendant has been in possession and enjoyment of the same co-owner thereof.

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A reply statement was filed by the plaintiff reiterating the contentions in the plaint and further contending that the Samadhi is of the ancestors of the plaintiff also and therefore, he is also entitled to perform poojas therein. It is also claimed that the patta for the suit property was granted in favour of the plaintiff's grandmother Solaiammal in the year 1934. The alleged partition said to have taken place in the defendant's family was denied by the plaintiff.

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The Courts below upon consideration of the evidence on record found that the suit property was in continuous possession of the plaintiff's family and at a partition that took place on 13.06.1994, the suit property called as “Samadhi Kollai” was allotted to the plaintiff under the said partition. The patta granted in favour of the plaintiff was also taken into account by the Courts below. The Courts below also found that the settlement registrar, which has been produced stood in the name of the plaintiff's forefather, Ramasamy Onthiriyar. On the basis of the documentary evidence, the Courts below concluded that the plaintiff has established his title and possession of the suit property and therefore, he is entitled to permanent injunction. Aggrieved, the defendant has come up with this second appeal.

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Notice was ordered to the respondent and Mr.M.P.Senthil, learned counsel represents the respondent.

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At the hearing of second appeal, the learned counsel for the appellant would contend that even if this Court accepts the findings of the Courts below with reference to the title and possession of the plaintiff / respondent, the right of the respondent to perform poojas in the Samadhi must be protected. According to him taking advantage of the decree for permanent injunction granted, the respondent is preventing him from even worshiping in Samadhi of his ancestors.

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Both counsels were directed to find out from the respective parties as to how the issue regarding worshiping in the Samadhi can be resolved. The learned counsel for the appellant had filed an affidavit claiming certain right to perform poojas in the Samadhi on certain special days and at every Tuesday and Friday, to which, a reply affidavit is filed by the respondent stating that he has been performing poojas once in a year and therefore, he cannot extend that right.

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S.A.(MD) No.469 of 2017

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The second appeal was adjourned time and again to enable the parties to arrive at a consensus. It was also suggested that the area, in which Samadhi is situated could be excluded, with access from the main road to the Samadhi, so that there will be no dispute between the parties in future.

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Today, when the matter was listed for hearing, the learned counsel for the respondent would submit that the respondent does not have any objection for the appellant to perform poojas or worship in the Samadhi at any time, since Samadhi has access from the main road directly.

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I have also interacted with the respondent, who is present in Court. He has expressly stated that he would not prevent the appellant from performing poojas or worshiping in the Samadhi at any point of time. The said statement made by the respondent is recorded. In view of the said statement made and in view of the fact that existence of the Samadhi is accepted, the right of the appellant to worship or conduct poojas in the Samadhi cannot be interfered with on th e basis of the decree for permanent injunction granted by the Courts below. Hence, the decree for permanent injunction granted by the Courts below is modified to the effect that the respondent or his successors in interest shall not prevent the appellant or his successors from worshiping or performing poojas in the Samadhi. It is stated that the Samadhi is situated 20 feet away from the road and there shall not be any obstruction by either of the parities in the approach to the Samadhi. The Samadhi shall be maintained in proper condition by the respondent and his successors in interest. Subject to the above modification, this second appeal is dismissed confirming the judgment and decree of the Courts below. However there will be no order as to costs. Consequently, connected miscellaneous petition is closed.

Assistant Registrar

// True Copy //

1.The Sub Court, Pattukottai.

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2.The District Munsif cum Judicial Magistrate, Orathanadu.

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https://hcservices.ecourts.gov.in/hcservices/

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S.A.(MD) No.469 of 2017

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Copy to The Section Officer, Vernacular Section,(2 copies) Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.M.P.SENTHIL, Advocate ( SR-1020[F] dated 09/01/2020 ) +1 CC to Mr.D.R.MURUGESAN, Advocate ( SR-785[F] dated 08/01/2020 ) S.A.(MD)No.469 of 2017 08.01.2020 MK (11.02.2020) 4P 7C

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https://hcservices.ecourts.gov.in/hcservices/

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Thiyagarajan Onthiriyar v. G.Chinnaiyan Onthiriyar

Case brief

What is this about?

What did the court decide?

Thiyagarajan Onthiriyar v. G.Chinnaiyan Onthiriyar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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