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2010 DIGILAW 2063 (MAD)

Veerateeswaran v. Meenalochani

2010-04-30

ARUNA JAGADEESAN

body2010
Judgment :- This Second Appeal is filed at the instance of the Plaintiff in OS.No.203/98 on the file of the learned Principal District Munsif, Karaikkal and has been entertained on the following substantial questions of law: (a) Whether the judgement of the lower Appellate Court is vitiated in overlooking the admission of the Respondent in her Written Statement that she had every right to demolish the suit pillar and whether that admission is not sufficient to grant injunction in favour of the appellant? (b) Whether the Respondent having failed to raise the objection when the suit pillar is put up by the Appellant, prevented by Principal of acquiescence from asking removal of the same now? 2. The suit in OS.No.203/98 was instituted by the Appellant/Plaintiff for the grant of permanent injunction restraining the Respondent/Defendant from interfering with the suit property, that is the pillar and the portico, the structure resting over the said pillar in his house bearing Door No.217, Ward F, Block 38, RS.No.77/1. According to the Plaintiff, the above said house property belonged to his father, who got it under a deed of exchange from her mother and to reach the said house from the Church Street, there is a long passage. At the commencement of the passage, there is a compound wall with an iron gate at the entrance fixed to the pillars on either side and the portico of the house rests on the southern pillar. According to the Plaintiff, the area on which the pillar stands and the pillars belong to him and it is part of the house property of the Plaintiff. It exists from the year 1963 or even prior to it. As incorrect measurements were given by the surveyor, who measured the property at the instance of the Respondent, the Plaintiff had requested for resurvey and the same is pending. The Plaintiff has stated that the Defendant attempted to demolish the pillar on the southern side and remove the gate claiming that the said pillar is within her limits and boundaries. Hence, the Plaintiff has filed the suit for permanent injunction. 3. In the Written Statement filed by the Respondent, she denied that the southern side pillar belonged to the Plaintiff and the surveyors report clearly disclosed that the area on which the pillar stood is within her limits. Hence, the Plaintiff has filed the suit for permanent injunction. 3. In the Written Statement filed by the Respondent, she denied that the southern side pillar belonged to the Plaintiff and the surveyors report clearly disclosed that the area on which the pillar stood is within her limits. It is stated that at the request made by the Plaintiff, the surveyor again took measurements and reiterated that the suit pillar is within the limits of the property purchased by the Defendant. According to her, the southern gate of the Plaintiff was fixed with the permission of the Defendants vendor with an undertaking to remove, when the house of the Plaintiff requires reconstruction or new construction. Thus, she had pleaded that there was oral license granted to the Plaintiffs predecessor in title by her vendor to fix the gate on the pillar on the northern side of her property and denied the claim of the Plaintiff that the pillar and the area on which it stands belonged to her. 4. Before the Trial Court, Ex.A1 to A6 were marked and the Plaintiff examined himself as PW.1, while on behalf of the Respondent, Ex.B1 to B5, Ex.X1 to X15 were marked and DW.1 and DW.2 were examined. 5. On consideration of the oral as well as the documentary evidence, the Trial Court found that there was an oral license granted to the Plaintiff by the vendor of the Defendant and the Defendant has no right to interfere with the enjoyment of the suit pillar and the iron gate, till she revokes the license or establish her right by filing a suit for declaration and then to take steps to demolish the said structure. On those conclusions, the suit was decreed. Aggrieved by this, the Defendant preferred an appeal in AS.No.18/99 and the Plaintiff preferred a cross appeal in 5/2000 challenging the findings of the Trial Court that the Plaintiff had erected the pillar on the license granted by the Defendant. On those conclusions, the suit was decreed. Aggrieved by this, the Defendant preferred an appeal in AS.No.18/99 and the Plaintiff preferred a cross appeal in 5/2000 challenging the findings of the Trial Court that the Plaintiff had erected the pillar on the license granted by the Defendant. The first appellate court found that in view of categoric admission made by the Plaintiff that there was no agreement between the Plaintiffs father and the vendor of the Defendant regarding erection of pillar and the Plaintiff having denied the oral license, the findings of the Trial Court that unless the license granted was revoked by the Defendant, the latter cannot be allowed to demolish the pillar or interfere with the enjoyment of the suit pillar by the Plaintiff cannot be sustained and allowed the appeal as well as the cross appeal, consequently dismissing the suit filed by the Plaintiff. It is the correctness of this, that is challenged by the Appellant/Plaintiff in this Second Appeal. 6. The principal contention raised by the learned counsel for the Appellant is that neither the Respondent nor her vendor raised any objection when the pillar was put up by the Appellant and therefore, the principle of acquiescence has to be made applicable to the facts of this case and placed reliance on the decision of this court rendered in the case of R.S.Muthuswami Gounder Vs. A.Annamalai and others [1981-1-MLJ-258], wherein it is observed that when nothing was done by the owner to stop the construction put up by the other party, who having an interest to prevent the said act being done despite having full notice of its having been done, it would be deemed that he had acquiescence in it. 7. The learned counsel for the Appellant would further contend that when there is an admission by the Defendant in his Written Statement that the pillar was put up by the predecessor of the Plaintiff with the oral permission of the Defendants vendor on an undertaking to remove it as and when new construction or alteration is made, the first appellate court ought not to have set aside the decree for permanent injunction granted by the Trial Court. 8. Whether the principle of acquiescence would apply at all to this case has to be considered first. 8. Whether the principle of acquiescence would apply at all to this case has to be considered first. Generally speaking, if a party having an interest to prevent an act being done has full notice of its having been done and acquiescence in it so as to induce a reasonable belief that he consents to it, then he cannot turn round and allege a different state of things. In the presence case, the Plaintiff and the Defendant are neighbours. It is the case of the Plaintiff that the pillar was put up within the limits of his property and in fact, he denies the ownership of the Defendant to the portion on which the pillar had been erected. The evidence on record indicated that this issue did not sprung up till the Defendant measured his property with the help of a surveyor. He had learnt on the report of the surveyor that the portion on which the pillar was put up belonged to him and thereafter, he had attempted to demolish it while putting up construction in his land. It is disclosed from the evidence that even after the surveyors report affirming that the said portion belonged to the Defendant, the Plaintiff continued to claim ownership to the said portion. He did not at any point of time conceded the ownership of the disputed portion to the Defendant. 9. It is to be borne in mind that the parties cannot be said to be acquiesced in the claim of others unless they are fully cognizant of their right to dispute them. If a party relies on the principles of acquiescence, then it must be shown that the person acquiescing was aware of the matter in which he acquiesced and of the effect of such acquiescence. In the present case, no finding of acquiescence or waiver can be founded as it is evidently clear that both the parties were labouring under some sort of mistake about their respective rights in regard to the portion in which the pillar had been erected and the Plaintiff had never accepted the right of the Defendant to the said portion. No plea of acquiescence has been raised by the Plaintiff and nothing is indicated from the evidence warranting application of principle of acquiescence. In my opinion, no acquiescence or waiver on the part of the Defendant could be inferred. 10. No plea of acquiescence has been raised by the Plaintiff and nothing is indicated from the evidence warranting application of principle of acquiescence. In my opinion, no acquiescence or waiver on the part of the Defendant could be inferred. 10. That apart, plea of acquiescence was not taken by the Plaintiff/Appellant at any stage before Trial Court, nor taken in grounds of cross appeal before the first appellate court and the same has been raised for the first time at the arguments stage in the Second Appeal. The plea of acquiescence is not a pure question of law and it could not be permitted to be raised at any stage of the proceedings. Therefore, I am unable to countenance the arguments advanced by the learned counsel for the Appellant in this regard. 11. The other contention raised by the learned counsel for the Appellant is that in view of the admission made by the Defendant in the Written Statement that oral license was granted to the predecessor of the Plaintiff for erecting pillar on an undertaking that the same should be removed as and when the new construction is put up or alteration is made, the first appellate court ought to have granted a decree for permanent injunction. 12. At the outset, it has to be pointed out that the Plaintiff/Appellant has not raised the necessary pleading in his plaint. Throughout the proceedings both in the Trial Court and in the first appellate court, the case of the Plaintiff was that the pillar was constructed by his father within the limits of their property and assertively claimed ownership to the pillar and the portion on which the pillar stood. The Plaintiff had failed to plead and prove by positive evidence that the licensee, the Plaintiffs father acting upon the license executed work of a permanent character and incurred expenses so as to attract Section 60(b) of the said Act. 13. It is well settled that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of pleadings, evidence if any produced cannot be considered. It is also well settled that no party should be permitted to travel beyond its pleading. 13. It is well settled that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of pleadings, evidence if any produced cannot be considered. It is also well settled that no party should be permitted to travel beyond its pleading. In the present case, though the Defendant stated that his vendor has given permission for the construction of the pillar, but the contention of the Plaintiff was that no such license was granted. In fact, the Plaintiff while he examined himself as PW.1, has denied the suggestion that the structure was put up on permission granted by the Defendants vendor. The said portion of his evidence is extracted below:- "It is not correct that the suit pillar was erected by my father with the permission of the Defendants previous title holder to remove same when required by the owner for his construction. I deny that the Defendant is the owner of the land on which the suit pillar stands." 14. That apart, the Appellant/Plaintiff has filed cross objection in the Cross Appeal 5/2000 challenging the findings of the Trial Court that the Plaintiff is a licencee under the vendor of the Defendant in so far as the subject matter of the suit is concerned. In fact, one of the grounds raised in the said cross appeal is that there is no tangible evidence before the trial court to establish that the Plaintiff is a licencee under the vendor of the Defendant. In the written statement filed by the Defendant, she claims that she being the owner of the suit pillar, she had got every right to demolish the pillar. The surveyors report supports the case of the Defendant and he has measured the property twice once at the instance of the Defendant and again on the objection made by the Plaintiff after giving due notice to both the parties. DW.2, the Deputy Surveyor of Survey Department has given evidence to the effect that the suit pillar comes within the boundaries of the Defendants property. 15. DW.2, the Deputy Surveyor of Survey Department has given evidence to the effect that the suit pillar comes within the boundaries of the Defendants property. 15. On consideration of entire evidence and the plea made by the parties, the first appellate court has found that the Appellant/ Plaintiff had failed to establish her case of ownership to the suit pillar and the portion on which the said pillar is erected and rightly dismissed the suit by setting aside the Judgment and Decree of the Trial Court. I do not find any reason to interfere with the said findings of the first appellate court. Accordingly, the substantial questions of law are answered against the Appellant. 16. In he result, this Second Appeal is dismissed. However, n the circumstances of the case, there will be no order as to costs.