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2007 DIGILAW 1110 (MAD)

Pandian v. R. Rani & Others

2007-03-28

P.JYOTHIMANI

body2007
Judgment :- The defendant in the suit is the appellant. 2. The suit is filed by the plaintiffs/respondents for mandatory injunction to remove the 5ft. height wall with the length and breadth of 12 x 1 metres stated to have been put up by the defendant on the southern side of the plaintiffs property and also for permanent injunction. 3. It is admitted that the property of the plaintiffs is situate in Plot No.75, while that of the defendant in Plot No.76 situate on the southern side of the plaintiffs Plot. Both the plots were allotted by the Tamil Nadu Slum Clearance Board. According to the plaintiffs, the measurement of their plot is 15. 0 sq.mts bearing Door No.1, while the defendants plot is bearing Door No.2. It is the case of the plaintiffs that in February 1986 the defendant attempted to trespass into the plaintiffs property and therefore the present suit was originally filed for permanent injunction and pending suit, on 3. 1989, since the defendant has put up a pucca construction to a height of 5 ft., the relief of mandatory injunction was also sought for. 4. The defendant admitting the ownership of the plaintiffs property in Plot No.75, has disputed the measurement and extent of the plaintiffs property. It is the case of the defendant that his property measures South-North on either side 4.4 metres and East-West 12 metres on the nothern side and 12.6 metres on the southern side and the total area allotted to the defendant is 0.54.0 sq.mts. The defendant in his written statement further contended that the plaintiffs have built a pucca construction in his building leaving only 6 inches on the southern side of the property and therefore the avement regarding the alleged trespass is baseless. Whereas the plaintiffs are attempting to trespass into the defendants property on the northern side and prayed for the dismissal of the suit. .5. Whereas the plaintiffs are attempting to trespass into the defendants property on the northern side and prayed for the dismissal of the suit. .5. The trial Court on an appreciation of evidence on pursual of the records held that when it was the case of the plaintiffs that there was a panchayat and in spite of the compromise effected the defendant has put up the construction by encroachment, the above factum has not been proved with satisfactory evidence and also specifically found that the plaintiff has not stated as to what is the extent of the encroachment made by the defendant and dismissed the suit for mandatory injunction. It was as against the judgment and decree of the trial Court, the plaintiffs have filed A.S.No.136 of 1994 before the III Assistant Judge, City Civil Court, Chennai. 6. The Appellate Court, however, relying on Commissioners Report viz., Exs.C1 to C4 and Exs.A9 and A10 and also the admission of the defendant in his counter, has reversed the finding of the trial Court by granting a decree for mandatory injunction against the defendant against which the defendant has filed the present second appeal. .7. While admitting the second appeal, this Court has framed the following substantial question of law: ."Whether the lower Appellate court has not erred in granting a relief of mandatory injunction for a larger extent of 88.5 cms north to south on the wester side and 50 cms. On the eastern side 11.8 metres east to west totally measuring 8.12 meters whereas as per the report of the Advocate Commissioner appointed by the lower Appellate Court the appellant is in excess of only 15 cms. Width on the eastern side and 56 cms. On the western side even assuming without admitting that there was an encroachment." 8. Before admitting the correctness or otherwise of the judgment of the lower appellate Court, it is relevant to point out the report of the Advocate Commissioner filed in this case, which has been in fact relied upon by the trial Court. Apart from that, pending the first appeal, it is seen that with the consent of the parties, another Commissioner was appointed to measure afresh the property of the appellant as well as the respondents and he has also filed his report Exs.C3 & C4. Apart from that, pending the first appeal, it is seen that with the consent of the parties, another Commissioner was appointed to measure afresh the property of the appellant as well as the respondents and he has also filed his report Exs.C3 & C4. It is seen as per the warrant of appointment of Advocate Commissioner, during the appellate stage, the purpose of warrant was to measure the properties of the appellants/plaintiffs as well as the respondent/defendant to fix bounding stone between their properties. On the other hand, Ex.C3 Commissioners Report shows that he has only measured the property of the respondent. Without measuring both the properties in Plot No.75 and 76, the Advocate Commissioner has straightaway concluded that the defendant has made an encroachment upon the southern side of the plaintiffs property to the extent of 15 cms. in width on the Eastern side and 56 cms on the western side. It is based on the said report of the Advocate Commissioner and also based on a statement stated to have been filed by the defendant by way of affidavit in I.A.No.11507/1989 in O.S.No.3889 of 1986, wherein the defendant is stated to have mentioned as follows: "I respectfully state that though I am in possession of a slightly large area than what was allotted to me by the Slum Clearance Board, while putting up a pucca construction I have left more 0.2 metres on the southern side of the plaintiffs property". the learned first Appellate Judge has presumed that there was an encroachment and passed a decree of mandatory injunction. It is also relevant to point out that the learned first appellate Judge who has referred to Ex.A9 stated to have been allotted in respect of plaintiffs Plot No.75 and also the defendants allotment under Exs.B1 & B2, has held that as per Ex.B2, the defendant cannot have morethan 4.4 metres on the North-South of either side while the Commissioners report says on the North-South on the eastern side, it measures 4.6 metres and on the western side 4.9 metres and relying upon Exs.C3 & C4 the learned first appellate Judge has arrived at a conclusion that the defendant has encroached 56 cms North-South on the western side and 15 cms on the southern side. It is also pertinent to point out that the learned first Appellate Judge has himself found that there has been a discrepancy in the measurement of the plaintiffs property in Ex.A9 and Ex.10 i.e. while in Ex.A.9, North-South measures 12.5 sq.mts on the western side, in Ex.A10 North-South measures 10.5 sq.mts on the western side and has come to a conclusion that it is a mistake, which is not even the case of the plaintiffs. In these circumstances, the judgment and decree of the first Appellate Court solely based on assumption that there is a discrepancy between Exs.A9 & A10 and concluding the extent of encroachment based on Exs.C3 & C4, while the plaintiffs themselves have not come forward and proved the exact measurement of encroachment alleged to have been made by the defendant, is erroneous. While granting the decree of mandatory injunction, the lower Appellate Court has committed a gross error as correctly pointed out by the learned counsel for the appellant. The learned first appellate Judge has directed to remove the encroachment measuring 88.5 Cms North-South on the western side and 50 Cms. on the eastern side, 11.8 metres east-west totally measuring 8.142 sq.mts., which is not even the case of the plaintiffs or the finding of the learned Advocate Commissioner as seen in Exs.C3 & C4. In these circumstances, the judgment and decree of the learned 1st Appellate Judge suffers from serious infirmity and illegality and in view of the same, the judgment and decree of the first Appellate Court is liable to be set aside. In the result, the appeal is allowed setting aside the judgment and decree of the learned III Addl. Judge, City Civil Court, Chennai in A.S.No.136 of 1994 dated 3. 1995. No costs.