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2001 DIGILAW 1257 (MAD)

Mohamed Yacoob and another v. Shajadhi Begum

2001-10-18

A.RAMAMURTHI

body2001
JUDGMENT: The defendants in O.S.No.631 of 1980 on the file of District Munsif Court, Tanjore have preferred the present second appeal aggrieved against the judgment and decree made in A.S.No.19 of 1987 on the file of Sub Court, Tanjore reversing the judgment and decree of the trial Court dated 23.4.1985. 2. The case in brief is as follows: The plaintiff filed a suit for declaration that she is the owner of the suit property marked as A, B, C, D in the plaint plan and for permanent injunction and to pass a decree for mandatory injunction directing the defendants to demolish the construction made on the suit property. The property bearing T.S.No.160 in Samandampalayam Muslim Street, Thanjavur was settled in favour of the plaintiff by her mother on 26.9.1957 under a registered settlement deed. Ever since the date, she is in possession of the property. She had constructed a house with the approval of the Municipality in 1973. The defendants are the owners of the property situated on the north of the plaintiff’s house and it is in T.S.No.159. The plaintiff owns 39 feet on the western side of the property in the north-south line whereas the defendant own 35 feet north-south on the western side. The defendants while constructing in T.S.No.159 attempted to encroach the portion marked as A, B, C in the plaint plan. The plaintiff also approached the Municipality to survey the boundaries of the property and on measurement, survey stones were also fixed. But the defendants are bent upon encroaching 2 1/2 feet in a rectangular space on the western side of the property marked as A, B, C. The defendants are making trenches on the line marked A, B, C and as they have completed the construction, relief of mandatory injunction is claimed. Hence, the suit. 3. The defendants resisted the suit stating that the north-south measurement of the plaintiff on the western side according to the document was only 30 feet and not 39 feet. There is a lane on the northern side of the plaintiff’s house, which is in the possession and enjoyment of the defendants and their predecessor-in-title. They had access in the lane and discharged sullege water and raised some trees. The plaintiff has no claim in the lane except to gain access at times of need with the permission of the defendants and their predecessors. They had access in the lane and discharged sullege water and raised some trees. The plaintiff has no claim in the lane except to gain access at times of need with the permission of the defendants and their predecessors. In fact, the lane is within the boundary of T.S.No.159 for over 60 years. The plaintiff is claiming novel right on the strength of some incorrect municipal survey plans. The defendants had no occasion to encroach into the property of the plaintiff. The building came up to basement level and the plaintiff and her husband did not raise any objection. The alleged trespass by the defendants is false. The suit is liable to be dismissed. 4. The trial Court framed 4 issues and 2 additional issues and on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-26 were marked and on the side of the defendants, Exs.B-1 to B-3 were marked and D.Ws.1 and 2 were marked. The reports and plans filed by the Commissioner were marked as Exs.C-1 to C-4. The trial Court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.19 of 1987 on the file of Sub Court, Thanjavur and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial Court and the suit was decreed. Aggrieved against this, the defendants have come forward with the present second appeal. 5. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the learned Subordinate Judge was right in holding that the plaintiff has title to the suit property when Ex.A-1, her title deed granted only a right of way over the suit property? (2) When the plaintiff has not been given any absolute title except a right of way over the suit property, is the learned Subordinate Judge right in holding that the plaintiff has title to the suit property? 6. Heard the learned counsel of both sides. 7. The suit property is marked as A, B, C in the plaint plan measuring 15 feet east-west and 1 foot 9 inches north-south on the west (rectangle) and tapering towards east. According to the plaintiff, the suit property forms part of T.S.No.160. It is admitted that T.S.No.159 is situated on the north of T.S.No.160. 7. The suit property is marked as A, B, C in the plaint plan measuring 15 feet east-west and 1 foot 9 inches north-south on the west (rectangle) and tapering towards east. According to the plaintiff, the suit property forms part of T.S.No.160. It is admitted that T.S.No.159 is situated on the north of T.S.No.160. The house of the plaintiff is in T.S.No.160 whereas the house of the defendants is in T.S.No.159. Admittedly, there is a lane portion in between the property of the plaintiff and now the plaintiff claims that this lane portion is forming part of T.S.No.160 whereas the defendants claim that it is in T.S.No.159. According to the plaintiff, the defendants while putting up construction in the property had encroached the area marked as A, B, C in the plaint plan and therefore, the plaintiff was constrained to file a suit for declaration and injunction; but, however, during the pendency the construction was completed and therefore, the plaint was amended claiming the relief of mandatory injunction. 8. The trial Court dismissed the suit whereas the lower appellate Court decreed the suit. Learned counsel for the appellants/ defendants contended that the lower appellate Court ought to have based its conclusion on the title deeds of the parties. The plaintiff was given only a right of way in the suit property and hence, she cannot claim absolute right in the same. The plaintiff was not the exclusive owner of the suit property, which was a common property. The lower appellate Court also failed to note the distinction between a right of way over the property and an absolute interest granted in a document. The report and plan filed by the Commissioner will clearly indicate that it was only a common lane. 9. Ex.A-1 is the document, by which the plaintiff got right in respect of T.S.No.160. Ex.A-2 is the plaint plan. Now, the plaintiff claims 39 feet north-south on the western side but according to the document, she is entitled to only 30 feet. Since the plaintiff has come forward with a specific case that the encroached portion forms part of T.S.No.160, the burden is upon her to establish the same. The recitals in the document filed by the parties indicated that the lane was used for the purpose of ingress and egress and neither the plaintiff nor the defendants can claim exclusive title over the lane portion. The recitals in the document filed by the parties indicated that the lane was used for the purpose of ingress and egress and neither the plaintiff nor the defendants can claim exclusive title over the lane portion. The first report filed by the Commissioner was superseded by another report and plan. The surveyor was examined as P.W.3 in the case. According to him, the construction made in the encroached portion is not in T.S.No.159, but only in the part of T.S.No.160. The Commissioner was also directed to measure the properties in accordance with the documents of the parties. It has come to light that the lane portion was in T.S.159. It is therefore evidently clear that when the measurements are taken according to the survey plan maintained by the Municipality, the lane portion comes within T.S.160; but if the measurements are taken according to the documents of title relied on by the parties, the lane portion comes within T.S.No.159. Now, the plaintiff has come forward for a declaration that the portion marked as ABC belongs to her since it is part of T.S.160. But on a consideration of measurements given in the documents of title and also in view of Exs.C-3 and C-4, it is difficult to grant such a declaration. It is only when the plaintiff is able to establish that by virtue of title deeds or by virtue of adverse possession, the plaintiff can claim the relief of declaration. It is not the case of the plaintiff that she had prescribed title to the lane portion but her case is mainly based upon title deeds. When once the north-south measurement on the western side was only 30 feet, it can be easily concluded that the plaintiff cannot be granted the relief of declaration in respect of the suit property. 10. The lower appellate Court, on the other hand, granted the relief of declaration in favour of the plaintiff with reference to the suit property and it is not based on any legal evidence. Exs.C-1 and C-2 alone had been taken into consideration; but Exs.C-3 and C-4 had not been properly considered. When the properties were measured in accordance with the title deeds and when the plaintiff is entitled to 30 feet north-south on the western side, she cannot claim more than that which will include the lane portion. Exs.C-1 and C-2 alone had been taken into consideration; but Exs.C-3 and C-4 had not been properly considered. When the properties were measured in accordance with the title deeds and when the plaintiff is entitled to 30 feet north-south on the western side, she cannot claim more than that which will include the lane portion. In fact, the lower appellate Court itself adverted that the earlier documents filed on the side of the plaintiff clearly indicate that the lane portion was described only as a common lane. Having regard as common lane, it is not known how the lower appellate Court granted the relief of a declaration in favour of the plaintiff. Under the circumstances, the finding by the lower appellate Court is perverse and the lower appellate Court failed to consider material evidence and not properly appreciated the documents. It is also admitted that the plaintiff’s husband already got othi of the property of the defendants long back and later filed a rent control petition before the competent Court. No reference has been made by the plaintiff in the rent control petition with reference to the lane portion. The burden has been wrongly placed upon the defendants by the lower appellate Court as if they have to establish that the lane portion belong to them. There were fences and poovarasu trees in the lane portion thereby establishing that it might have been treated as a common lane by the parties. 11. Learned counsel for the appellants/ defendants also brought to the notice of the Court the evidence of P.W.1, wherein he had admitted that at the time of filing of the suit, the construction was made only upto basement level. He further admitted that the lane portion is there for a very long time and there is no separate gate. P.W.1 also admitted that the plaintiff is claiming right only by virtue of Ex.A-1. The lane portion has been used by the residents to reach the other side. When the plaintiff failed to establish that the lane portion forms part of T.S.No.160, I am of the view that the plaintiff is not entitled to claim the relief of declaration as well as permanent injunction. 12. The lane portion has been used by the residents to reach the other side. When the plaintiff failed to establish that the lane portion forms part of T.S.No.160, I am of the view that the plaintiff is not entitled to claim the relief of declaration as well as permanent injunction. 12. It is now admitted that the defendants have put up construction in the portion marked as A, B, C on the western side and the constructed area measures only 15 feet east-west and 1 foot, 9 inches north-south on the western side and it is shown as A, B, C in the plaint plan (rectangular) in shape. It has also come out in the evidence that the parties have used the lane for the purpose of ingress and egress and it is a common lane belonging to both sides. This being so, one person cannot exclusively claim the lane portion or put up any construction causing prejudice to the other co-owner. It is only under such circumstances, the plaintiff amended the plaint and claimed the relief of mandatory injunction also. It is admitted that even at the time of filing of the suit, the construction was up to basement level and thereafter only, the suit was filed. It appears that the plaintiff has not taken immediate action to prevent the construction. It is also not the case of the plaintiff that she obtained any interim injunction and violating the order, the defendants have put up construction in the lane. It is therefore, clear that the plaintiff was also guilty of laches and acquiescence, which enabled the defendants to put up construction in a small area; but the same will not affect the rights of the parties in using the lane portion for ingress and egress. Hence, I am of the view that the plaintiff is not entitled to the relief of mandatory injunction but only compensation from the defendants. The lower appellate Court had granted the relief of mandatory injunction also mechanically without taking into consideration of Exs.C-3 and C-4 and if it is ordered, naturally the construction of the defendants will fall to the ground. In my view, the lower appellate Court has not given sound and proper reason to take a different view taken by the trial Court and as the finding of the lower appellate Court is not based on sound material, interference is called for. In my view, the lower appellate Court has not given sound and proper reason to take a different view taken by the trial Court and as the finding of the lower appellate Court is not based on sound material, interference is called for. 13. For the reasons stated above, the second appeal is allowed in part and the judgment and decree of the lower appellate Court are modified and the suit is dismissed relating to the relief of declaration and permanent injunction. However, instead of mandatory injunction, the plaintiff is entitled to get compensation for the construction made in the common lane and the defendants are directed to pay or deposit in the trial Court a sum of Rs.5,000 in a period of four weeks from this date. In the peculiar circumstances, there will be no order as to costs.