NARAYANASWAMY NAIDU Vs. RAMAMOORTHY

JUDGEMENT

(1.) K. VENKATARAMAN, J. Defendants 3 and 4 in O.S. No. 352 of 1987 on the file of the District Munsif, Cuddalore who are respondents 3 and 4 in A.S. No. 164 of 1990 before the Principal Subordinate Judge, Cuddalore are the appellants before this Court.

(2.) THE respondent in this appeal has filed O.S. No. 352 of 1987 on the file of the District Munsif, Cuddalore against the Assistant Director of Survey and Land Records, Cuddalore, Executive Officer, Vadalur Panchayat, the appellants herein and one Radhakrishnan Naidu for the following reliefs: i) set aside the order of the 1st defendant dated 30.4.1984 and determine all boundaries of Survey Nos. 559, 560/1 and 560/5 by means of a decree with reference to the measurements as found in the old Field Measurement book; ii) order costs of the suit; and iii) grant such other relief as may be just, proper and necessary.

(3.) MR. V. Lakshminarayanan, learned counsel appearing for the appellants has submitted that: a) In O.S. No. 352 of 1987 before the District Munsif, Cuddalore, summons were not served on the appellants and hence, notice should not have been dispensed with in A.S. No. 164 of 1990; b) though the respondent, being the plaintiff in O.S. No. 352 of 1987, has sought for a prayer to set aside the order dated 30.4.1984 and determine all boundaries of Survey Nos. 559, 560/1 and, 560/5 by means of decree with reference to measurements and the said suit was dismissed, the appellate Court has granted a prayer for possession which has not been sought for by the respondent viz., the plaintiff in O.S. No. 352 of 1987; c) The appellate Court should not have dispensed with notices to the appellants herein in view of Order 41Rule 14(4) C.P.C. According to the learned counsel, notice could be dispensed with in any proceeding incidental to an appeal and not in the main appeal itself; d) The appellate Court should not have dispensed with notice to the appellants herein when it has granted the relief of possession which will adversely affect the appellants herein especially when such a relief has not been sought for in the suit in O.S. No. 352 of 1987 on the file of the District Munsif, Cuddalore; e) The Madras Amendment will not prevail over the amendment made in C.P.C., in 1976 and Order 41Rule 14(4) C.P.C., as amended alone has to be taken into consideration while dispensing with notice to the respondents in the said appeal.