Revision petition challenging a District Munsif order dismissing an amendment application seeking mandatory injunction. Court upheld dismissal due to lack of justification in affidavit regarding encroachment date and significant delay despite suit pending for over ten years.
No amendment allowed; Impugned order upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P.(PD) (MD) No.735 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.735 of 2019
and C.M.P.(MD) No.4293 of 2019
1.Ramaraj 2.Kosalai .. Revision Petitioners/Petitioners/ Plaintiffs
-vs-
1.Parasuraman
Kothaiammal (Died) Shumugavel (Died)
2.Lakshmi 3.Jeyalakshmi 4.Sanakar Raj .. Respondents 1 to 4/Respondents 1, 4 to 6/Defendants 1, 4 to 6
Prayer :- Petition filed under Article 227 of the Constitution of India to set aside the order dated 22.01.2019 passed in I.A.No.1 of 2018 in O.S.No.301 of 2008 on the file of the Additional District Munsif, Aruppukkottai.
For Petitioner : Mr.P.Sivasubramanian For Respondent 1 : Mr.T.Balaji For Respondent 2 to 4 : No Appearance
ORDER
The plaintiffs are the revision petitioners before this Court challenging the order, dated 22.01.2019, passed by the learned Additional District Munsif, Aruppukottai, refusing to allow I.A.No.1 of 2018 filed by the petitioners herein to amend the plaint in O.S.No.301 of 2008.
2.The facts in brief are as follows:-
The revision petitioners had filed O.S.No.308 of 2008 on the file of the District Munsif, Aruppukottai, for the following reliefs:-
“1) jhthr; nrhj;J thjpfSf;F ghj;jpak; vd;W tpsk;Gif nra;Jk ;> mjd; njhlh;r ;rpahf jhthr; nrhj;jpy; https://hcservices.ecourts.gov.in/hcservices/
1/4
C.R.P.(PD) (MD) No.735 of 2019
jhthr;
cs;s thjpfspd; mDgtj;jpw;F gpujpthjpfs; vt;tpjj;jpYk; , ilQ;ry ; nra;af ;$lhJ vd;W epue;ju cWj;Jf ;fl ;lis toq;fpAk;>
3.For the sake of convenience, the parties shall be referred to as per their rank in the suit.
4.The case of the plaintiffs was that the properties originally belonged to one Muthalakkammal, who by registered Sale Deed dated 21.05.1967, had purchased the same. The said Muthalakkammal, had three children, viz., Subba Reddiyar, Punnammal and Shanmugavel. Subba Reddiyar passed away and Muthalakkammal died in the year 1989. Her children had entered into an oral partition in the beginning of the year 1990 and under this oral partition, the property fell to the share of the plaintiffs, who are the legal representatives of Punnammal. In fact, Sundara Reddiyar, the husband of Muthalakkammal, had released his interest in the property under a Deed dated 13.12.1971. The 3rd defendant is the son of Muthalakkammal and Sundara Reddiyar, and husband of the 2nd plaintiff. The relation between the two has been estranged on account of the fact that the 3rd defendant has murdered his mother and has undergone prison sentence and therefore, the 3rd defendant has no right to the suit property. The 1st and 2nd defendants also have no right to the suit property. While so, they had tried to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property. A legal notice dated 14.10.2008 was issued by the plaintiffs to the 1st defendant. The 1st defendant did not respond to the said legal notice. The defendants had been trying to create encumbrances in respect of the suit property. Hence, the suit.
5.Pending the suit, the 2nd defendant died and her legal representatives were brought on record as defendants 4 and 5. The 3rd defendant also passed away and the 3rd defendant's legal heir was brought on record as the 6th defendant.
6.The 1st defendant had filed a written statement, which was adopted by the 2nd defendant, inter alia denying the right of the plaintiffs to the suit property as also the oral partition. It is their contention that Muthalakkammal, in a sound disposing state of mind, had executed a Will in favour of her husband Sundara Reddiyar. After her demise, the said Sundara Reddiyar had inherited the said property. There is already a suit filed by Sundara Reddiyar against his sons Subba Reddiyar and Shanmugam in O.S.No.34 of 1990 on the file of the District Munsif, Aruppukottai. The Will has also been produced in the said proceedings and the suit has been compromised https://hcservices.ecourts.gov.in/hcservices/
2/4
C.R.P.(PD) (MD) No.735 of 2019
declaring Sundara Reddiyar's rights to the property. Sundara Reddiyar had sold the property to defendants 1 and 2 under a registered Sale Deed dated 01.06.1995 and they have already mutated the revenue records in their name and are in possession of the same. They had filed an additional written statement in which, they would contend that the property belongs to defendants 1, 4 and 5 and they are in enjoyment.
7.When P.W.1 was in the box, the plaintiffs have come forward with the impugned application viz., I.A.No.1 of 2018 to amend the plaint to include the relief of mandatory injunction directing the 1st defendant to remove the construction put up by him in the suit property. By virtue of the amendment, the plaintiffs also sought to introduce a pleading that the encroachment had taken place on 22.04.2014.
8.Defendants 1, 4 and 5 have filed a counter inter alia contending that the application was highly belated and that a suit for a mandatory injunction had to be filed within a period of three years from the date of the encroachment. The suit is filed in the year 2008 and has been pending for over 10 years.
9.The learned Additional District Munsif, Aruppukottai, by order dated 22.01.2019, dismissed the said application. The learned Judge has observed that even according to the plaintiffs, the encroachment had taken place on 22.04.2014 and the application for amendment has been filed only in the year 2018, much beyond the period of three years and therefore, the plaintiffs were not entitled to the relief claimed. Aggrieved by the same, the petitioners are before this Court.
10.Heard the learned counsel on both sides and perused the records.
11.In the affidavit filed in support of the amendment application, the plaintiffs have not given any details viz., the date on which the encroachment had taken place and the building had been constructed. On the contrary, the plaintiffs have simply stated that pending the suit, the defendants had put up the construction. As already stated, the suit has been pending for over ten years. Therefore, it is imperative that the plaintiffs give the date on which the construction had been put up. However, in the application, while giving the details of encroachment, the date has been introduced in pen as “22.04.2014”. The contention is that the construction had been completed on 22.04.2014. The interlocutory application has been filed on 31.07.2017. If the construction work had to be completed in April, 2014, it should have been started much earlier. The affidavit is bereft about these particulars. Therefore, I do not find any reason to contradict the order passed https://hcservices.ecourts.gov.in/hcservices/ by the learned Additional District Munsif, Aruppukottai.
3/4
C.R.P.(PD) (MD) No.735 of 2019
Consequently, this Civil Revision Petition stands dismissed. No costs. Connected miscellaneous petition is closed.
Assistant Registrar (Records)
// True Copy //
/ /2022 Sub Assistant Registrar(CS)
abr
Note:-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.
To
The Additional District Munsif Court, Aruppukottai.
+1 CC to M/s.P.SIVA SUBRAMANIAN, Advocate ( SR-38572[F] dated 14/12/2021 )
+1 CC to M/s.A.SRINIVASAN, Advocate ( SR38538[F] dated 14/12/2021 )
C.R.P.(PD) (MD) No.735 of 2019 Dated: 13.12.2021
GM(CO) KB(31.01.2022) 4P 4C
4/4
3 issues framed by the court
Whether plaintiffs are entitled to amend the plaint for a mandatory injunction given the delay between the encroachment and the amendment application.
Whether the affidavit accompanying the amendment application sufficiently details the date of encroachment to justify the amendment.
Whether the lower court correctly dismissed the implication application due to the lateness of the plea.
Ramaraj
Kosalai
Parasuraman
Kothaiammal
Shumugavel
Lakshmi
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
