IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.01.2011 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN S.A.NO.673 OF 1997 AND C.M.P.NO.7252 OF 1997 Karuppayammal ... Appellant Vs. 1.The State of Tamil Nadu, rep. by the District Collector, Periyar District Erode – 11. 2.The Divisional Engineer, Highways and Rural Development, Erode – 2. ... Respondents Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 07.03.1997, passed in A.S.No.55 of 1997 on the file of the Learned Additional Subordinate Judge, Erode, in reversing the judgment and decree dated 26.08.1996, passed in O.S.No.1356 of 1994on the file of the I Additional District Munsif, Erode. For Appellant : Mr.V.Raghavachari For Respondents : Mrs.Bhavani Subbarayan Special Government Pleader JUDGEMENT The plaintiff is the appellant herein. 2. The suit was filed by the plaintiff seeking for the relief of injunction stating that the suit property situate in S.No.1103/, is a natham poramboke and the plaintiff was employed under the second defendant and during the employment, the plaintiff was permitted to put up a hut in the suit property. Therefore, the plaintiff had put up a construction and she is residing in the suit property and Door No.95, was allotted to the suit property. After retirement of the plaintiff, the defendants are forcing her to https://hcservices.ecourts.gov.in/hcservices/ vacate the suit property. The plaintiff is in enjoyment of the suit property for more than 30 years and she has also prescribed title. The suit property is a village natham and the second defendant has no right over the same, and therefore, the suit was filed for injunction. 3. The defendants contested the suit stating that the suit property belonged to the second defendant and the second defendant permitted the plaintiff to reside in the suit property and B memos were issued against the plaintiff stating that the plaintiff was only a permissive occupier and she cannot claim any right over the suit property and the plaintiff can be evicted by the defendant and therefore, the plaintiff is not entitled to the relief prayed for. 4. The Trial Court held that the plaintiff is entitled to be in possession of property and she can be evicted only by following due process of law and granted the relief of injunction. 5. As against the said judgment and decree, the plaintiff filed an appeal in A.S.No.55 of 1997 on the file of the Additional District Munsif, Erode and the First Appellate Court allowed the appeal, holding that the respondents herein are entitled to evict the appellant/plaintiff and the appellant/plaintiff is not legally entitled to be in possession of the property and therefore, the appellant is not legally entitled to the relief of injunction prayed for. 6. Aggrieved by the said judgment and decree, this Second Appeal is filed is by the appellant. 7. At the time of admitting the Second Appeal, the following substantial questions of law were framed by this Court:- i)Whether the Lower Appellate Court is right in reversing the judgment of the Trial Court directing the respondents to seek eviction in a manner known to law, in the absence of a cross appeal by the respondents. ii)Whether the judgment of the Lower Appellate Court is not illegal and opposed to the judgment of the Madras High Court reported in (1997) M.L.J. 111?] 8. Mr.V.Raghavachari, the learned counsel appearing for the appellant submitted that when the Trial Court has given a finding that the appellant is entitled to be in possession of the property and she can be evicted only by following the due process of law, the First Appellate Court committed serious error in refusing to grant the relief of injunction in the absence of any cross-appeal or cross- objection filed by the respondents. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel appearing for the appellant further submitted that the Trial Court has held that the appellant is entitled to be in possession of the property and she can be evicted only through due process of law. When the appellant filed first appeal against the disallowed portion of the suit property, in the absence of any cross-appeal or cross-objection filed by the respondents, the First Appellate Court should not have held that the appellant can be evicted by the respondents and the appellant is not entitled to the relief of injunction prayed for. He therefore, submitted that the findings of the First Appellate Court that the respondents are entitled to evict the appellant and the appellant is not entitled to the relief of injunction, without filing any cross- appeal or cross-objection against the findings of the Trial Court is not sustainable. The learned counsel also relied upon the judgment reported in A.I.R. (2003) S.C.1989 in the case of ( Banarsi and Ord. Vs. Ram Phal ) . 10. On the other hand, the learned Special Government Pleader appearing for the respondents submitted that after the disposal of the first appeal, the appellant was evicted and the construction put up by her was also removed and in that suit property, quarters were constructed and at present, jeep driver is residing. 11. It is seen from the judgment referred to supra, that the First Appellate Court ought not to have modified the decree in favour of the respondents, in the absence of any cross-appeal or cross- objection filed by the respondents. Admittedly, the first appeal was filed by the appellant against the disallowed portion of the Trial Court. Therefore, in the absence of any cross-appeal or cross- objection filed by the respondents, the First Appellate Court ought not to have declined the relief of injunction, which was granted by the Trial Court. Hence, the findings of the First Appellate Court that the appellant is not entitled to the relief of injunction as prayed for is set aside and the substantial questions of law are answered in favour of the appellant. 12. However, having regard to the fact that the appellant was evicted and the oldconstruction was removed and quarters were constructed, the appellant is not entitled to the relief of injunction as even according to the Trial Court, the respondents are entitled to evict the appellant only through due process of law. 13. It is seen from the memo filed by the learned Special Government Pleader appearing for the respondents that the appellant was evicted from the suit premises and the old building was removed https://hcservices.ecourts.gov.in/hcservices/ and new building was constructed. 14. Therefore, eventhough, technically, the Second Appeal is allowed, having regard to the fact that the appellant was evicted from the premises, nothing survives in this Second Appeal for further adjudication and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. sd Sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar To 1. The Additional Subordinate Judge, Erode. 2. The Ist Additional District Munsif, Erode JRG (CO) RRI/10.3.2011 S.A.No.673 of 1997 https://hcservices.ecourts.gov.in/hcservices/