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2000 DIGILAW 890 (AP)

H. P. Narasimhaiah v. T. G. Krishna Murthy

2000-12-02

VAMAN RAO

body2000
VAMAN RAO, J. ( 1 ) HEARD the learned Counsel for the appellants. No representation on behalf of the respondent. ( 2 ) THIS second appeal is directed against the judgment of the learned Subordinate judge, Adoni dated 13-12-1988 rendered in a. S. No. 18 of 1984, under which the decree passed by the District Munsif, Adoni in O. S. No. 238 of 1979 decreeing the plaintiffs suit for mandatory injunction for demolishing the structures erected on the wall of the plaintiffs has been modified and compensation to be paid by the defendant no. 1 was directed to be enquired into. ( 3 ) THE plaintiffs are the appellants-herein and the defendant No. l is the respondent herein. The plaintiffs filed- the suit O. S. No. 238 Of 1979. The case. ot the plaintiffs is that the plaint -schedule wall was exclusively owned by them and that the defendant No. l without the consent of the plaintiffs raised certain structures on the suit wall and as such mandatory injunction for removal of those structures was sought. The plea of the-defendant No. l was that the wall did not belong exclusively to the plaintiffs and that it was a common wall belonging to the defendant No. l and the plaintiffs. It was pleaded that an earlier suit, filed on the same cause of action, was withdrawn and that the present suit was not maintainable. It is further pleaded that as the plaintiffs have not come to the Court with clean hands inasmuch as they permitted the defendant No. l to make construction and in view of this the plaintiffs are not entitled for discretionary relief of mandatory injunction. ( 4 ) IT may be,mentioned that earlier suit in O. S. No. 289 of 1976 was filed by the plaintiffs on the ground that the defendant no. l was seeking to make certain constructions on the wall which exclusively belonged to the plaintiffs and as such they are entitled to perpetual injunction restraining the defendant No. l from making any constructions. That suit-was permitted to be withdrawn with liberty to file fresh suit as is obvious from the order passed by the Court under Ex. A-13. l was seeking to make certain constructions on the wall which exclusively belonged to the plaintiffs and as such they are entitled to perpetual injunction restraining the defendant No. l from making any constructions. That suit-was permitted to be withdrawn with liberty to file fresh suit as is obvious from the order passed by the Court under Ex. A-13. ( 5 ) AS to the merits of the case, on the basis of evidence adduced by both sides, the trial Court held that the wall in question exclusively belonged to the plaintiffs and that it was not a common wall. The trial court accordingly decreed the suit of the plaintiffs for mandatory injunction. The trial court however dismissed a further relief sought by the plaintiffs declaring them to be entitled to enter into the premises of the defendant No. l for effecting repairs to the suit AB wall. ( 6 ) THE defendant No. l preferred the appeal A. S. No. 18 of 1984 on the file of the then Subordinate Judge, Adoni. The learned subordinate Judge affirmed the findings of the trial Court that the suit AB wall was the exclusive property of the plaintiffs and that it was not a common wall. However, the learned Subordinate Judge set aside the judgment of the trial Court as far as granting the relief of mandatory injunction was concerned. The learned Subordinate judge relied upon the judgment of madras High Court in S. S. V. Krishnan pillai vs. Kilasathammal; S. Palanivelu vs. K. Veradammal and held that the plaintiffs were not entitled for the relief of mandatory injunction and that compensation for construction made by the defendant No. l over the plaintiffs wall should be the appropriate relief that can be granted to the plaintiffs. The ground on which the learned subordinate Judge refused to grant the relief of mandatory injunction in favour of the plaintiffs is that there were laches and acquiescence on the part of the plaintiffs. It was then observed that presently the plaintiffs factory which the suit AB wall encloses is not working and that as it is a compound wall the construction made by the defendant No. l would not affect the interests of the plaintiffs in any way. It was then observed that presently the plaintiffs factory which the suit AB wall encloses is not working and that as it is a compound wall the construction made by the defendant No. l would not affect the interests of the plaintiffs in any way. The learned Counsel for the appellants points out that the findings recorded by the learned Subordinate Judge himself would show that there was no acquiescence on the part of the plaintiffs. It is pertinent to mention here that the plaintiffs had filed the suit O. S. No. 289, of 1976 in September 1976 claiming the relief of perpetual injunction on the ground that the defendant No. l was in the process of making illegal construction on the plaintiffs AB wall. For some inadequacy in the plaint that suit was withdrawn. The Court permitted withdrawal of the suit granting liberty to file a fresh suit on the same cause of action. This is obvious from the order passed by the Court as in Ex. A-13. It is pertinent to mention here that the suit O. S. No. 289 of 1976 was withdrawn on 9-4-1979. The present suit O. S. No. 238 of 1979 was filed on 24-4-1979 within fifteen days from the date of withdrawal of the earlier suit. It is the case of the plaintiffs that in the meanwhile the defendant No. l had completed the constructions and that is why the plaintiffs were required to seek the relief of mandatory injunction. While dealing with the contention on behalf of the respondents in the appeal i. e. , the plaintiffs that earlier suit O. S. No. 289 of 1976 was filed while the defendant No. l was digging trenches for constructions and that while the defendant No. l was constructing AC wall for purpose of erecting sheds the suit o. S. No. 289 of 1976 was withdrawn with the permission of the Court and the present suit was filed immediately. The learned subordinate Judge observed:"i feel there is some force in the contention of the learned Counsel for the respondents. The respondent No. 2 filed O. S. No. 289 of 1976 when the appellant started constructing eastern wall shown as AC in the plaint plan ex. A-1 and thus the suit O. S. No. 289 of 1976- was filed even before the construction was commenced by the appellant. The respondent No. 2 filed O. S. No. 289 of 1976 when the appellant started constructing eastern wall shown as AC in the plaint plan ex. A-1 and thus the suit O. S. No. 289 of 1976- was filed even before the construction was commenced by the appellant. Therefore, the appellant must have made the constructions only subsequently after there was dispute between the parties so there is no question of acquiescence on the part of the respondents in the construction made by the appellant. "having found thus, the learned Subordinate judge strangely made the following observation:"but the fact remains that the respondents did not take immediate action and prevent the appellant from making the construction of the cattle feed factory making use of the AB wall. "thus, it is obvious that the plaintiffs filed the suit O. S. No. 289 of 1976 promptly when the defendant No. l started making constructions. While the suit was pending it was withdrawn with liberty to file a fresh suit on 9-4-1979 and within fifteen days thereafter the fresh suit namely the present suit O. S. No. 238 of 1979 was filed seeking mandatory injunction obviously on the ground that by then the defendant No. l had completed the constructions. Thus, the finding that there was acquiescence or some delay on the part of the plaintiffs in the teeth of evidence of tenacious perseverance on the part of the plaintiffs is untenable. The further observation of the learned subordinate Judge that while the removal of constructions would cause irreparable loss to the defendant No. l and that it would not cause any inconvenience to the plaintiffs cannot be appreciated when the defendant has made constructions in spite of the suit having been filed for restraining him from making such constructions. This argument cannot be countenanced. At any rate, the question of irreparable Joss would not arise as it is open to the plaintiffs to erect another wall on their own premises for providing support to the structures erected by him. Further the contention that no harm would be caused to the plaintiffs by allowing the constructions to remain is equally untenable. Once these constructions are allowed to stand the plaintiffs will be severely restricted in their use of their own wall for making any constructions. Further the contention that no harm would be caused to the plaintiffs by allowing the constructions to remain is equally untenable. Once these constructions are allowed to stand the plaintiffs will be severely restricted in their use of their own wall for making any constructions. It may be apposite to refer to the decision relied on by the learned Subordinate Judge for holding that the plaintiffs are not entitled to t mandatory injunction. In Palanivelu s case (supra), the facts of the case would disclose that the owner of the property in question did not do anything when the trespasser was putting up a part of main building on the portion of the trespasser s land and was sinking a major portion of the well and doing other acts on the trespassed land. It was observed that as the trespasser could not have done these things in a hurry it must have taken several months for the trespasser to complete them inasmuch as the owner had not disclosed these things in the plaint and had not prayed for a mandatory injunction for removal of the structures put up by the trespasser on the trespassed portion of the suit property and under these circumstances it was held that the Court would be justified in inferring acquiescence on the part of the owner. In krishnan Pillai s case (supra), the facts of the case would disclose that the plaintiff slept over his rights for ten to twelve years. Further, in that case the property on which constructions were made by the defendant was common property of the plaintiffs as well as the defendant being common passage of five feet in width which could not be put to any other use except passage. As the plaintiff kept quiet for more than ten to twelve years after the defendant raised some construction over that passage, the court held that it was not a case for mandatory injunction. The other case on which the learned Subordinate Judge relied in Jangaiah vs. D, Manickya Chandra. In that case, the Court referred to the principle that when a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection, while the act is in progress, he loses remedy by injunction which he would otherwise have. In that case, the Court referred to the principle that when a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection, while the act is in progress, he loses remedy by injunction which he would otherwise have. It may be pertinent to mention here that the relief of mandatory injunction was not sought by the plaintiff initially and that it was sought for the first time by amendment of plaint in the second appeal in the appellate Court. It is under those circumstances, the denial of mandatory injunction was considered proper. ( 7 ) THE facts of this case as noted above would show that in this case the plaintiff took prompt action in filing earlier suit immediately after the defendant started making constructions. After the suit was withdrawn with permission to file fresh suit the plaintiff filed the present suit within fifteen days of the withdrawal of the earlier suit. In the earlier suit he sought the relief of perpetual injunction restraining the defendant from making the impugned construction and in the later suit as by then the construction was completed he sought the relief of mandatory injunction. Thus there is no scope on the facts of this case to contend that there was any laches or acquiescence on the part of the plaintiffs. In view of this, on the basis of the findings of fact affirmed and approved by the subordinate Judge himself his view that the plaintiffs are not entitled to mandatory injunction is based on erroneous view of law. This constitutes substantial question of law on which the learned Subordinate judge has erred. ( 8 ) THERE is another reason why the judgment of the learned Subordinate Judge cannot be allowed to stand. While holding that the plaintiffs were not entitled for mandatory injunction and that compensation by the defendant No. l would be an appropriate relief to the plaintiffs the learned Subordinate Judge merely directed the plaintiff to make an application to the trial Court for the purpose of compensation. Neither he sought to ascertain the compensation to be paid to the plaintiffs nor did he remand the matter to the trial court for recording a finding on the question of compensation. Neither he sought to ascertain the compensation to be paid to the plaintiffs nor did he remand the matter to the trial court for recording a finding on the question of compensation. This would amount to denying the plaintiffs relief to which they were entitled on the basis of facts pleaded and proved by them. ( 9 ) IN the result the second appeal is allowed and the judgment and decree of the subordinate Judge are set aside and the judgment and decree of the trial Court are restored and the suit shall be decreed in terms of the judgment of the trial Court. In the circumstances, no order as to costs.