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2013 DIGILAW 2571 (MAD)

Kandhathal v. Muthammal

2013-07-19

M.SATHYANARAYANAN

body2013
Judgment : The revision petitioner is the plaintiff in O.S.No. 2394 of 2000 on the file of the Court of I Additional District Munsif, Coimbatore, and it was filed for the following relief: (a) by granting mandatory injunction against the Defendants No.1 to 5 directing them to dismantle the East-West “KL” and North-South “KL” Wall constructed over the encroached suit pathway marked as “JKLMJ” in the Rough Sketch and in default, the plaintiff is at liberty to remove the said obstructed walls in the suit pathway and restore the plaint “B” Schedule pathway to its original position. (b) by granting permanent prohibitory injunction against the defendants No.1 to 5 restraining them and their men, agents, relatives, servants, hire lings, from in any way removing the underground pipeline of the plaintiff (e) by granting permanent restraining the Defendants from disturbing the peaceful possession and enjoyment of the suit property. (c) by direction the defendants No.1 to 5 to pay the costs of the suit to the plaintiff. and (d) by granting such other and further reliefs as this Honourable Court may deem fit and proper in the circumstances of the above case and render justice.” 2. The suit, after contest, was decreed on 17.02.2003. The defendants, aggrieved by the said judgment and decree preferred an appeal in A.S.No. 24 of 2004 on the file of the Court of Principal District Judge, Coimbatore and it was also dismissed on 28.04.2004. Thereafter, the plaintiff/decree holder levied execution in E.P.No. 344 of 2003 praying for the execution of the decree for mandatory injunction and also prayed for handing over possession of the portion after removal of the offending construction. 3. In the Execution Petition, an Advocate Commissioner was appointed and after visiting the property, he filed his report wherein he has stated that he has removed the obstructions upto 22 feet length 2½ feet height in the east-west on the south and on the north-south on the east and west 6.6 feet each side. The Commissioner has further stated that he has also removed the offending construction i.e., stones and woods and when he tried to take delivery and hand over the petition mentioned property, judgment debtors, all of a sudden obstructed taking delivery and handing over of the property and once again, dumped the removed articles in the same place. The Commissioner has further stated that he has also removed the offending construction i.e., stones and woods and when he tried to take delivery and hand over the petition mentioned property, judgment debtors, all of a sudden obstructed taking delivery and handing over of the property and once again, dumped the removed articles in the same place. Thereafter, the judgment debtors filed E.A.No. 387 of 2005 under Section 151 of C.P.C. stating that in the suit, there is no specific prayer for recovery of possession and therefore, prayer made in the execution petition with regard to the handing over of possession of the property, cannot be granted. The respondent therein/decree holder filed their counter affidavit stating that even as per the Advocate Commissioner’s report, the Commissioner had removed the offending obstructions but once again, the removed articles have been put back in the same place by the judgment debtors. Once a decree for mandatory injunction was executed, the plaintiff/decree holder should be made to put in possession. Therefore, the prayer made in the execution petition is sustainable. 4. The lower court, after taking into consideration the averments made in the petition as well as the counter statement held that in the decree passed in the suit, there is no specific prayer for delivery of possession and therefore, the prayer column in clause 10 of the execution petition needs to be amend and therefore, ordered amendment and directed the Advocate Commissioner to execute the warrant subject to the amendment made in clause 10 of the execution petition. The decree holder, challenging the vires of the said order dated 06.06.2006, has filed this revision. 5. Mr. C. Muthuselvam, learned counsel for the revision petitioner/decree holder would contend that the prayer bought for in the execution petition is in consonance with the decree passed by the trial Court for the reason that as per Clause A of the decree, a decree of mandatory against the defendants 1 to 5 was passed and they were directed to dismantle the East-West “KL” and North-South “KL” Wall constructed over the encroached suit pathway marked as “JKLMJ: in the Rough Sketch and in default, the plaintiff is at liberty to remove the said obstructed walls in the suit pathway and restore the plaint “B” Schedule pathway to its original position. Since the suit was decreed in consonance with the said prayer, the suit pathway is to be restore to its original position. Therefore, the prayer sought for in column 10 of the execution petition is perfectly sustainable. 6. In support of his submission learned counsel appearing for the petitioner placed reliance upon the following judgments. i) 1991 (1) LW 371 (Palaniammal vs. Pechimuthu & 3 Others) ii) 2000 (II) CTC 136 (Kaliammal vs. D.C. Arunachalam) iii) 2007 (3) CTC 529 (S. Sampoornam vs. P.V. Kuppuswamy) 7. Per contra, learned counsel for the respondent/judgment debtor would submit that the decree is only for mandatory injunction and there is no specific prayer for recovery of possession and since the said prayer was included in the execution petition, at the time of execution of delivery, it was obstructed by the judgment debtors and thereafter, they filed a petition for amending the said prayer and the lower Court has rightly taken into consideration, and allowed the application and thereby, ordered the trial Court to amend the decree suitably and permitted the Advocate Commissioner to execute the warrant in terms of the amended prayer and hence, prayed for the dismissal of the civil revision petition. 8. This Court paid its best attention to the rival submissions and perused the materials available on record. 9. In paragraph VI of the plaint it is averred as follows: “That being so, on the night of 24.10.2000, the defendants with rowdy elements came to the suit pathway and put up stone and mud well to 1a height of 1½ feet and covered with thatched leaves on KL and KJ Boundary of suit pathway and thereby encroached the whole pathway “JKLMJ”. When the plaintiff and her family members objected the illegal conduct of the defendants and their men, they threatened to kill them. Fearing for life, the plaintiff and their members become mute spectators. On the next day on 25.10.2000, the plaintiff has lodged a complaint before Thondamuthu Police against the Defendants seeking protection to their life and to remove the encroachment made by the Defendants in the suit pathway. Though, the said Police has issued Receipt, they have not taken any actions against the Defendants at the influence of the Defendants. The Police had advised the Plaintiffs to take suitable civil actions through Court of Law. Though, the said Police has issued Receipt, they have not taken any actions against the Defendants at the influence of the Defendants. The Police had advised the Plaintiffs to take suitable civil actions through Court of Law. The plaintiff produced photographs with negatives that were taken on 27.10.2000 to show the encroachment done by the Defendants in the suit pathway. Now, the Plaintiff is constrained to use the portion of the vacant site purchased by her husband to reach her house and the right to suit pathway is perfected by easement of necessity of the Plaintiff.” 10. A perusal of prayer (1) as stated above, would clearly disclose that a mandatory injunction was sought for against the defendants to dismantle the offending portion and to remove the same and thereafter, restore the plaint ‘B; schedule pathway to its original position and the said suit was decreed as prayed for and the challenge by the judgment debtor in appeal ended in dismissal and thereafter, the plaintiff levied execution and in clause 10, he prayed for handing over possession. In the execution petition, the Advocate Commissioner was appointed and he has stated that after removing the offending construction, he tried to hand over possession and it was obstructed by the judgment debtor and they also put back the removed articles on the suit property. 11. In 1991 (1) L.W. 371 (Palaniammal v. Pechimuthu & 3 others), the suit was filed praying for decree of injunction restraining the defendant from interfering with the plaintiff’s possession and for mandatory injunction for removal of the construction already made by the defendant. A contention was putforth that in the absence of any prayer of recovery of possession, the relief cannot be granted. Learned Judge rejected the said contention and has held as follows; “3. I do not agree with this contention. The sentence referred to above should not be torn away from the context and read independently of the rest of the plaint. The entire plaint must be read for understanding the aforesaid sentence. It is stated in the plaint clearly that the plaintiffs were in uninterrupted possession and enjoyment of the suit property from 1946, the date of purchase by Marudayi Ammal, the mother of the plaintiff. There is reference thereafter to the defendant giving trouble to the plaintiffs since 1974 when she purchased her property. It is stated in the plaint clearly that the plaintiffs were in uninterrupted possession and enjoyment of the suit property from 1946, the date of purchase by Marudayi Ammal, the mother of the plaintiff. There is reference thereafter to the defendant giving trouble to the plaintiffs since 1974 when she purchased her property. Then it is mentioned in the plaint that the plaintiffs preferred a police complaint against the defendant and after enquiry, the defendant was warned not to put up any construction I the plaintiff’s property, and an undertaking was also taken from the defendant to that effect. At that stage, the plaint refers to the putting up of construction by the defendant on 25-5-1977. It is stated that the defendant started the construction on that day and inspite of protest by the plaintiffs, the defendant went on constructing. The suit was filed on 13-6-1977 and an order of interim injunction was obtained by the plaintiffs immediately. The order was served on the defendant on 6-6-1977. Inspite of the order, the defendant proceeded with the construction and completed the same. In the cause of action paragraph it is stated by the plaintiffs that the cause of action arose on 25-5-1977 when the defendant began construction, and on 14-6-1977 when the defendant violated the order of interim injunction was made by the court and encroached upon the plaintiff’s property. Thus the prayer in the plaint for injunction and mandatory injunction should be read along with the other averments made in the plaint. If the entire plaint is read, it is clear that the plaintiffs have rushed to the court as soon as the defendant started construction. It is not as if the defendant encroached upon the property and squatted on the same for some time, and thereafter began to construct thereon. The encroachment itself was by commencement of the construction on the disputed property. Hence, there is no necessity for the plaintiff to seek a declaration of their title or recovery of possession. If the impugned construction is removed, the plaintiffs will be certainly in possession as the property is adjacent to their admitted property and it is really part of the same. The courts below have taken the correct view on a reading of the plant and hence that there is no necessity to pray for any declaration or recovery of possession. If the impugned construction is removed, the plaintiffs will be certainly in possession as the property is adjacent to their admitted property and it is really part of the same. The courts below have taken the correct view on a reading of the plant and hence that there is no necessity to pray for any declaration or recovery of possession. Hence this contention of learned counsel for the appellant fails.” 12. In 2000 (2) CTC 136 (Kalaiammal and another v. D.C. Arunachalam and 6 others), a decree was obtained by the plaintiff declaring the right to use the cart track and also to restrain the defendants by means of permanent injunction from interfering with the plaintiff’s right and possession and thereafter, the decree holder alleged that the decree has not been obeyed and the judgment debtors are causing obstruction to the cart track, and the execution petition was filed and appointment of Advocate Commissioner was also sought for, for removing all types of obstruction caused in the suit property. The contention putforth on behalf of the judgment debtor is that the decree for permanent prohibitory injunction issued to the Commissioner for removal of obstruction, cannot be ordered. In paragraph No. 16 of the said judgment, it has been held as follows: “ When Court declares that plaintiff is entitled to make use cart track, various rights flow from that. It recognises plaintiffs’ right to make use of the same and also recognises that plaintiffs can use the same without any obstruction from any source and when defendants cause obstruction, prohibitory injunction is also given direction them not to disturb the right of plaintiffs in making use of the same. If that is the effect of the decree, can it be said that plaintiffs while asking for issue of commission to remove obstruction are not entitled to apply for the same since there is no mandatory direction against defendants. I do not think that the interpretation given by learned counsel for petitioners is correct. Plaintiffs are only making use of the cart track as they were using and are entitled to use it without any obstruction. It is that part of the decree they are enforcing against the defendants. Along with the same, there is also a decree for injunction. Plaintiffs are only making use of the cart track as they were using and are entitled to use it without any obstruction. It is that part of the decree they are enforcing against the defendants. Along with the same, there is also a decree for injunction. When both these reliefs are granted to plaintiffs, argument of learned counsel for petitioners that so long as there is no mandatory injunction against defendants, application under Rule 32 (5) is not maintainable cannot be accepted.” 13. In the above said judgment, learned judge has also placed reliance upon in AIR 1983 P & H 174 (Bagicha Sing V. Suba Singh), where paragraph No. 19, it has been held as follows: “9. A reading of the aforesaid leaves no manner of doubt that even in a declaratory decree, direction can be given for compliance of all matters which are necessary consequences of the declaratory decree. Even those direction have been held to be executable up to the higher Court. I fail to understands how a decree for permanent injunction restraining the defendants not to interfere in plaintiff’s possession, cannot be executed by having possession delivered back to the decree- holder, which in term flows from sub- rule (5). Here again if the executing Court cannot have the possession restored, it means the remedy for getting back possession is by filing another suit for possession which practice has to be avoided by Courts under the rule laid down by Full Bench as quoted above. Accordingly, I am of the opinion that the three cases referred to on behalf of the judgment-debtors are no longer good law and I do not find any impediment in my way to order restriction of possession in the interest of justice even apart from Sub-rule (5). The Supreme Court in Krishan Murari Lal Sengal’s Cases, AIR 1977 SC 1233 ordered the compliance of declaratory decree without reference to any rule but on the larger principles of justice and compliance of a decree. Similarly, even if Sub-rule (5) does not come to the aid of the decree-holder, on general principles, I am of the firm opinion that the executing Court or this Court was the jurisdiction to order that the possession of the land in dispute be restored to the decree-holder.” 14. Similarly, even if Sub-rule (5) does not come to the aid of the decree-holder, on general principles, I am of the firm opinion that the executing Court or this Court was the jurisdiction to order that the possession of the land in dispute be restored to the decree-holder.” 14. Learned judge, ultimately held though the defendants have not asked for removal of obstruction by means of mandatory injunction, there is no prohibition in the plaintiff getting the claim of removal when the decree declares their right to make use of the cart track without any obstruction and the execution petition is filed only to see while clearing the obstruction, the defendants do not cause any further obstruction. 15. In 2007 (3) CTC 529 (Sampoornam. S v. P.V. Kuppuswamy), the judgment debtor in the suit for specific performance filed the appeal. The suit was filed for the relief of specific performance and for delivery of possession, whereas the decree was granted only for execution of the sale deed. Therefore, the question arises for consideration is when the reliefs of specific performance and possession was prayed for and the suit was decreed only for execution of the sale deed, whether it will not amount to the rejection of the relief of possession and in which case, can the execution court go beyond the decree and grant a decree of possession. Learned judge found that the suit for specific performance has been decreed and the consequences should be, there shall be a sale deed in accordance with the agreement of sale which in turn amounts to granting the relief of possession and it cannot and should not be construed as the explicity rejection of relief of possession. 16. In paragraph No.6 of the plaint, the plaintiff would over that on the night of 24.10.2000, the defendants with rowdy elements came to the suit property and put up stones and mud wall and also encroached the whole pathway ‘JKLMJ’ and on 25.10.2000, the plaintiff lodged a police complaint seeking protection to their life and about the encroachment to the suit pathway. In the suit prayer, the plaintiff prayed for mandatory injunction to dismantle the wall constructed over the encroached suit pathway and to remove the obstruction and restore the B-schedule property to its original position. 17. In the suit prayer, the plaintiff prayed for mandatory injunction to dismantle the wall constructed over the encroached suit pathway and to remove the obstruction and restore the B-schedule property to its original position. 17. The suit has been decreed as prayed for and the appeal preferred by the judgment debtor was also dismissed. In clause 10 of the Execution Petition, the plaintiff/ decree holder prayed for possession. The judgment debtor filed the application praying for deletion of the said prayer for the reasons that there is no decree for recovery of delivery of possession and it was also accepted by the lower Court and the petition came to be allowed. 18. As held in the above decisions, the prayer for permanent injunction and mandatory injunction should be read along with other averments made in the plaint as there is allegation of encroachment made in the suit property as mentioned in the description of the property and hence, there is no necessity for the plaintiff to seek declaration or title or possession of the suit property. When the offending obstruction is removed, the plaintiff will be certainly in possession of his property. 19. The effect of the decree for mandatory injunction obtained by the revision- petitioner/ decree holder is that once the offending construction is dismantled and removed, the plaint pathway is to restored to its original position which means the plaintiff is entitled to the said pathway and in consonance with the said decree, the plaintiff in clause 10 of the execution petition has made such a prayer. 20. In the considered opinion of the Court, the reason assigned by the lower Court that in the suit decree, there is no specific relief of delivery of possession and such a prayer is to be deleted, cannot be accepted on the face of the reason that the effect of the decree for restoration of the plaint pathway to its original possession means that the plaintiff is entitled to use the same. The ratio laid down in the above said decisions is also to that effect. 21. In the result, the Civil revision petition is allowed. The fair and decretal order made in E.A.No. 387 of 2006 in E.P. No. 344 of 2003 dated 06.06.2006 is set aside and the prayer made in Clause 10 of the execution petition is capable of execution. 21. In the result, the Civil revision petition is allowed. The fair and decretal order made in E.A.No. 387 of 2006 in E.P. No. 344 of 2003 dated 06.06.2006 is set aside and the prayer made in Clause 10 of the execution petition is capable of execution. Since the execution petition is of the year 2003, the trial Court is directed to give atmost importance and make every endeavour to dispose of E.P., within three months from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2007 is closed.