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2007 DIGILAW 1483 (MAD)

R. Sebasthi Nadar v. A. Soosai Appan & Others

2007-04-26

R.BANUMATHI

body2007
Judgment :- Aggrieved by concurrent findings of Courts below, granting Permanent Injunction and also Mandatory Injunction, ordering removal of encroachment in the common path, the unsuccessful First Defendant has preferred this Second Appeal. 2. Suit Property relates to Pathway in S.No.174/5 and 174/10 in Keeranipatti Village. On obtaining necessary permission from the Court in the Application filed under Order 1 Rule 8 C.P.C, the First Respondent/Plaintiff has filed Suit in his representative capacity representing the villagers of Keeranipatti. 3. Case of the Plaintiff is that S.No.174/5 situated on the North of House of D-1 and the land in S.No.174/10 situated to the South of House of D-1 are classified as Public Pathway. It is alleged that the First Defendant had encroached S.No.174/5 to the extent of 8 feet width 37 feet length and has put up superstructure viz., Septic Tank and Bore Well and Compound Wall. D-1 had also encroached S.No.174/10, which is on the South of his House and had encircled the same by Compound Wall measuring 2 ½ feet width 37 feet length. The Plaintiff has given representation to Defendants 2 and 3 for removal of the encroachment, which did not fructify. Hence, the Plaintiff has filed Suit to remove the encroachment by means of Mandatory Injunction and on his failure to do so, to direct Defendants 2 and 3 to remove the encroachments. 4. The First Defendant has resisted the Suit denying existence of Street or Common Lane in S.Nos.174/5 and 174/10. According to the First Defendant, mere entry in the Revenue Records classifying the Suit Survey Numbers as Pathway would not render the Suit Property as Pathway. D-1 claims right to the Suit Property as his ancestral property and prayed for dismissal of the Suit. 5. The Third Defendant viz., Tahsildar, Karaikudi has filed the Written Statement reiterating that Suit S.Nos.174/5 and 174/10 are common Pathway for the villagers and the First Defendant is an encroacher and on representation from the villagers, steps are being taken to remove the encroachment. 6. On the above pleadings, four issues were framed in the Trial Court. Upon consideration of oral and documentary evidence and basing upon Revenue Records, the Trial Court held that S.No.174/5 and 174/10 are classified as Pathway. Holding that D-1 has not produced documents proving his entitlement in S.Nos.174/5 and 174/10, the Trial Court decreed the Suit and ordered removal of encroachment. 7. Upon consideration of oral and documentary evidence and basing upon Revenue Records, the Trial Court held that S.No.174/5 and 174/10 are classified as Pathway. Holding that D-1 has not produced documents proving his entitlement in S.Nos.174/5 and 174/10, the Trial Court decreed the Suit and ordered removal of encroachment. 7. Aggrieved by the Judgment of the Trial Court, the First Defendant has preferred First Appeal. The lower Appellate Court confirmed the findings of the Trial Court holding that there is clinching evidence to show that the Suit Property is a common street and lane. Finding that the First Defendant had not substantiated his defence plea, lower Appellate Court dismissed the Appeal preferred by D-1. 8. As against the concurrent findings of the Courts below, the First Defendant has preferred this Second Appeal. Only Notice of Admission was ordered. The Plaintiff and Defendants 2 and 3 entered appearance. With the consent of both sides, the main Second Appeal itself is taken up for final hearing and disposal. 9. The following Substantial Questions of law were formulated for consideration:- .(1) Whether the Courts below are correct in granting decree for mandatory injunction that a prayer for declaration for declaring the property as a public pathway? .(2) Whether the Courts below are correct in not drawing adverse inference against the Plaintiff and the Defendants 2 and 3 for not filing the Government Records to show that the Suit Property is a Public Property? 10. That Suit S.Nos.174/5 and 174/10 are Pathway meant for Keeranipatti Village Public is well proved by plentiful oral and documentary evidence. In their evidence, P.Ws.1 to 3 have consistently stated that S.No.174/5 on the Northern Side of D-1s house and S.No.174/10 on the Southern Side of D-1s house are used by the villagers as Pathway. 11. P.W.3 – Village Administrative Officer of Kovilur is the competent person to speak about classification and the encroachment. Being Revenue Official in charge of the Village, evidence of P.W.3 – VAO assumes importance. P.W.3 has produced Ex.A.3 – Chitta Register, in which Suit S.Nos.174/5 and 174/10 are classified as Pathway as is seen from the following:- Tamil The above would clearly show that Suit S.Nos.174/5 and 174/10 are classified as "Pathai / Road", whereas S.No.174/7 Natham Manai stands in the name of D-1 as Pattadar. 12. P.W.3 has produced Ex.A.3 – Chitta Register, in which Suit S.Nos.174/5 and 174/10 are classified as Pathway as is seen from the following:- Tamil The above would clearly show that Suit S.Nos.174/5 and 174/10 are classified as "Pathai / Road", whereas S.No.174/7 Natham Manai stands in the name of D-1 as Pattadar. 12. In fact, the First Defendant being aware of classification of S.No.174/10 as Natham, preferred Petition before R.D.O praying for issuance of Patta. By Ex.A.11 Proceedings (dated 08.01.2001), the R.D.O has rejected the request of the First Defendant on the ground that S.No.174/10 is classified as "Pathai". Having requested for issuance of Patta, it is not open to the First Defendant to contend that Suit S.Nos.174/5 and 174/10 are his ancestral properties. .13. The Commissioners Report and Plan (Exs.C.1 and C.2) are categoric as to the clear encroachment of the Appellant/First Defendant as is clear from the following:- ."....Survey No.174/9 Savariraj S/o Sebathi, S.No.174/8 belongs to Arulanandha Nadar, S.No.174/7 belongs to the Sabathi S/o Royappan (Respondent) S/O 174/6 belongs to Mariammal. S.No.174/5 and S.No.174/10 has been classified as pathway according to Government records. According to Surveyors measurement the respondent has encroached 9.9 meters east west and 2.4 meteres North South, north of his patta property S.No.174/7 that is in the pathway S.No.174/5. He has also encroached 9.9 meters east west and 4 meters north south south of S.No.174/7 that is in S.No.174/10...." 14. Both the courts below recorded concurrent finding of fact that First Defendant has no manner of right in Suit Survey Numbers and he is Pattadar for S.No.174/7. Admittedly, the First Defendant has no Patta for Suit S.No.174/5 and 174/10. In appreciation of unimpeachable oral and documentary evidence adduced by the Plaintiff, both the Courts below have rightly held that the First Defendant has no manner of right or interest in the Suit Survey Numbers. .15. Assailing the concurrent findings, learned counsel for the Appellant has submitted that the Plaintiff has to prove the user of the Pathway. It was further submitted that apart from Revenue Records, no document had been produced showing that Suit Survey Numbers is Public Pathway. In support of the contention that the Suit Property is not used as Pathway, First Defendant tries to take advantage of the observations of the Commissioner in Ex.C.1. It was further submitted that apart from Revenue Records, no document had been produced showing that Suit Survey Numbers is Public Pathway. In support of the contention that the Suit Property is not used as Pathway, First Defendant tries to take advantage of the observations of the Commissioner in Ex.C.1. In Ex.C.1, the Commissioner had expressed his opinion, "...it seems there is no probability for vehicle movement in S.No.174/5 in the recent past...". Drawing attention of the Court to the said observation of the Commissioner, learned counsel for the Appellant has contended that when Plaintiff has not proved the user of the Suit Property as Pathway, the Courts below ought not to have granted Injunction. Keeranipatti being a village and S.No.174/5 just abutting the Church, vehicle movement perhaps might be limited. In the light of oral evidence of P.Ws.1 to 3 that the Suit Property is used as Pathway, the Plaintiff cannot be non-suited on the basis of observation of the Commissioner. If suit Survey Numbers are not used as Pathway, they would not have been sub-divided as Pathway. The contention that the Plaintiff has not proved the user of the Suit Survey Numbers as pathway was rightly rejected by the Courts below. 16. In S.No.174/5, the First Defendant had encroached 9.9 meters East West and 2.4 meters North South by digging a Bore Well and putting up Septic Tank and also Compound Wall. Learned counsel for the First Defendant has raised plea of acquiescence contending that Plaintiff and other villagers having acquiesced in the acts of the First Defendant are estopped from raising any objection at a later point of time. Acquiescence does not simply mean standing by; it does not mean mere acquiescence. It means assent after the party has come to know of his right. It is well settled law that in Order that Defendant erecting permanent structure, might avail himself of the doctrine of acquiescence, it is necessary for him to show that he has acted in honest belief that he had right in the land and the opposite party has acquiesced. Mere silence is not acquiescence. It is not as if the Plaintiff and other Villagers have kept silence over the encroachment by First Defendant. The villagers have been making repeated representations to the Authorities requesting for removal of encroachments. Mere silence is not acquiescence. It is not as if the Plaintiff and other Villagers have kept silence over the encroachment by First Defendant. The villagers have been making repeated representations to the Authorities requesting for removal of encroachments. The contention that the Plaintiff and other villagers stood by and allowed the First Defendant to put up Septic Tank and Bath Room and Bore Well has no merits. That apart, in his cross-examination, D.W.1 has admitted that there was no approved plan for putting up Septic Tank and Compound Wall. There could be no acquiescence or estoppel against the act done in violation of the provisions of the Rules. 17. At the time of his inspection, the Commissioner had noticed the encroachments in S.No.174/10 by other house owners also. Learned counsel for the Appellant has contended that when others have also committed encroachment in S.No.174/10, the Plaintiff has filed the Suit with malafide intention against the First Defendant for removal of encroachment. The contention that the Suit is filed against the First Defendant with malafide intention has no force. As noticed by the Commissioner, the First Defendant had encroached on both sides of his house, putting up Septic Tank, Bath Room and digging Bore Well on the Northern side, which is just abutting the Church is obviously objectionable to the villagers. It cannot be said that the First Defendant has been singled out in filing the Suit. 18. On behalf of the Appellant, it was also contended that the Plaintiff ought to have filed the Suit for Declaration and without seeking for a declaratory relief, the Courts below ought not to have granted Permanent Injunction and Mandatory Injunction for removal of encroachment. As noticed in Para (11) of this Judgment, Suit S.Nos.174/5 and 174/10 are classified as Natham, Poromboke and Pathway. When the Suit S.No.174/5 is classified as Natham and S.No.174/10 is classified as Poromboke, there was no necessity for the Plaintiff to seek for Declaration. 19. In proper appreciation of evidence, both the Courts below have recorded concurrent findings and the same cannot be interfered with. In the decision reported in Subba Reddiar ..Vs.. Vasantha Ammal and Another (2000 (III) C.T.C. 2000) it was held that the High Court cannot interfere with the concurrent findings of fact in the Second Appeal, however erroneous such findings are. 20. In the decision reported in Subba Reddiar ..Vs.. Vasantha Ammal and Another (2000 (III) C.T.C. 2000) it was held that the High Court cannot interfere with the concurrent findings of fact in the Second Appeal, however erroneous such findings are. 20. When both the courts below have correctly appreciated the evidence and arrived at the correct conclusion, re-appreciation of evidence by the High Court is impermissible. The concurrent findings of fact can be interfered with only when material / relevant evidence has not been considered or inadmissible evidence has been considered by the Courts below. There is nothing to show that the courts below considered inadmissible evidence or that the reasonings are perverse. The concurrent judgments of the Courts below are to be confirmed and this Second Appeal is liable to be dismissed. 21. For the foregoing reasons, the Judgment and decree dated 25.04.2006 in A.S.No.100 of 2005 on the file of Subordinate Judge, Devakkottai, is confirmed and this Second Appeal is dismissed. Both the parties are directed to bear their respective costs. The Interim Stay already granted in M.P.(MD)No.1 of 2006 is vacated and this Petition is dismissed. M.P.(MD)No.1 of 2007 filed to vacate the Interim Stay is allowed.