Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 4105 (MAD)

V. Gopal v. Shoba Ammal

2013-12-05

R.KARUPPIAH

body2013
Judgment : 1. The appellant herein who is the third party filed this Second Appeal against the judgment and decree dated 22.11.2000 made in A.S.No.19 of 2001 dated 15.02.2005 on the file of Subordinate Court, Ariyalur wherein confirmed the decree and judgment made in O.S.No.253 of 1993 dated 22.11.2000 on the file of Principal District Munsif Court, Ariyalur. 2. For the sake of convenience, newly impleaded party in the second appeal is referred as appellant and defendants 1 and 2 in the original suit is referred as respondents 1 & 2 and plaintiff in the original suit referred as third respondent herein. 3. The third respondent/plaintiff originally filed the suit for recovery of possession in respect of C.E.F.F1 portion with a superstructures and permanent injunction in respect of A.B.C1.E.F.D portion situated in entire ABCD portion in the plaint plan. Subsequently, amended the plaint and seeking mandatory injunction to remove the construction in the suit property. 4. Briefly, the case of the 3rd respondent/plaintiff is that ABCD lane shown in the plaint plan belongs to the 3rd respondent. The thirdrespondent had already filed a suit in O.S.No.563 of 1973 and obtained a decree for declaration in respect of ABCD lane and also mandatory injunction in respect of C.C1.E.F portion against one Munisamy Chettiar and Chandraammal. Aggrieved over the decree and judgment dated 08.11.1974, the appeal suit in A.S.No.473 of 1975 and second appeal in S.A.No.1125 of 1977 were filed but both were dismissed on 06.07.1976 and 12.07.1977 respectively. As per the decree, the vendors of the respondents 1 and 2 (i.e.,) the above said Munisamy Chettiar and Chandraammal have not removed the superstructure. In the above suit, relief of declaration of title was granted and respondents 1 and 2 have no right over the above said ABCD property. Now, the respondents 1 and 2 who are the husband and wife purchased the property with false recitals and attempted to encroach the suit property on the north of C1.B portion except C.C1.E.F portion, and demolished the superstructure from 06.07.1993 onwards, and constructed the superstructure in C.C1.E.F portion. The above said earlier proceedings are binding the respondents 1 and 2. Hence, the 3rd respondent filed the suit for the above said relief (i.e.,) recovery or possession and permanent injunction. The above said earlier proceedings are binding the respondents 1 and 2. Hence, the 3rd respondent filed the suit for the above said relief (i.e.,) recovery or possession and permanent injunction. During the pendency of the suit, the respondents 1 and 2 constructed several superstructures and encroached the suit lane and hence, amended the plaint and seeking mandatory injunction to remove the constructions. 5. The written statement and additional written statement are filed by the respondents 1 and 2. In the above said written statement, it is stated that the rough plan filed by the 3rd respondent is not true and correct, since the measurements, physical features, etc., are not properly described in the plaint. The respondents 1 and 2 are not aware of the decree passed in O.S.No.563 of 1973 and the appeals thereon. The 3rd respondent having failed to execute the decree obtained within three years and hence, the 3rd respondent is not entitled to get the same relief again since it is barred by limitation and the right if any has been extinguished. Therefore, the third respondent is not entitled to possession along with the construction. Since the 3rd respondent allowed the respondents 1 and 2/ and their vendors to remain in absolute possession and enjoyment of the suit properties, i.e., in C.C1.E.F portion and they had prescriptive title over the property. The respondents 1 and 2 and their predecessor – in- interest have been enjoying ABCD portion to have assess the western side of their house. The sale deed dated 30.06.1993 obtained by respondents 1 and 2 is true and genuine documents. Even at the time of foundation laid, no objection was raised by the 3rd respondent. The respondents 1 and 2 put up the construction within their limits after leaving a further space of about 3 feet adjacent to the north of the suit property and hence, there is no necessity to encroach or put up any construction in the suit property only for the convenient enjoyment of both the parties, left out vacant portion with consent of parties. The construction have been begun and lot of money has been spent over the same and after a long time, the suit has been filed. Hence, prayed for dismissal of the suit. The construction have been begun and lot of money has been spent over the same and after a long time, the suit has been filed. Hence, prayed for dismissal of the suit. In the additional written statement also, it is stated that only with the consent and for convenient use of both sides, the construction was made. All the constructions of door ways, pipelines, etc., have been put up only in the property of the respondents 1 and 2 property and also left the space for his use. Therefore, the 3rd respondent is estopped from questioning the same and also not entitled to mandatory injunction. 6. The Trial Court has framed three issues on the above said pleadings. On the side of the 3rd respondent/plaintiff, one witness was examined as PW1 and marked 9 documents as Ex.A1 to Ex.A9. On the side of the respondents 1 and 2 /defendants 1 and 2, one witness was examined as DW1 and marked two documents as Ex.B1 and Ex.B2 and four court documents were marked as C1 to C4. 7. The Trial Court has discussed the above said oral and documentary evidence and finally granted mandatory injunction and directed the respondents 1 and 2 to remove the superstructure except C.C1.E.F portion in the ABCD lane within three months and decreed the suit accordingly. Aggrieved over the above said decree and judgment passed by the trial court, the respondents 1 and 2 / defendants 1 and 2 preferred the first appeal in A.S.No.19 of 2001 and the first appellate court has held that the third respondent has failed to prove his case and respondents 1 and 2 have proved that they are not encroached the suit property as contended by third respondent and finally set aside the decree and judgment passed by the trial court. 8. The 3rd respondent herein, who is the plaintiff in the original suit and respondents 1 and 2 herein who are the defendants 1 and 2 in the above said suit have not filed any Second Appeal. But the appellant herein, who is third party in the suit namely, V. Gopal filed a CMP. 8. The 3rd respondent herein, who is the plaintiff in the original suit and respondents 1 and 2 herein who are the defendants 1 and 2 in the above said suit have not filed any Second Appeal. But the appellant herein, who is third party in the suit namely, V. Gopal filed a CMP. No.18596 of 2005 seeking permission to file petition to grant leave to file the second appeal against the judgment and decree made in A.S.No.19 of 2001, on the ground, he had filed O.S.No.197 of 2002 for partition and separate possession against the 3rd respondent herein and his brother and the above said suit was ultimatley compromised on 13.09.2002 in which the suit property was allotted to his share and hence, filed the petition to grant leave to file second appeal. 9. This court has passed an order on 02.12.2005 and leave was granted and this Court has admitted the second appeal on the following substantial questions of law: i. When the identity of the suit property is not in dispute, still is the Subordinate Judge right in reversing the decision of the trial court and dismissing the suit? ii. When the defendants having not denied the encroachment, still is the Subordinate Judge right in dismissing the suit? 10. It is not in dispute that the 3rd respondent herein already filed a suit in O.S.No.563 of 1973 and seeking relief of declaration in respect of entire suit property, namely, ABCD portion and also seeking mandatory injunction in respect of C.C1.E.F portion and the suit was decreed as prayed for by the 3rd respondent herein in the above said suit as against the predecessor of the present respondents 1 and 2 / defendants 1 and 2. The first appeal and second appeal preferred against the above said judgment and decree were also dismissed. It is also not in dispute that the 3rd respondent herein has not filed any execution petitions to remove the superstructure as per reliefs granted in the above said suit. The 3rd respondent herein has also not proved or contended that after the above said decree, the predecessor of the respondents 1 and 2 have removed the superstructure as per direction in the above said previous suit. 11. The 3rd respondent herein has also not proved or contended that after the above said decree, the predecessor of the respondents 1 and 2 have removed the superstructure as per direction in the above said previous suit. 11. The 3rd respondent herein who is plaintiff in the previous suit filed this suit again for the same reliefs of recovery of possession and permanent injunction and subsequently, seeking relief of mandatory injunction to remove the superstructure in the suit property. The learned counsel appearing for the respondents 1 and 2 would submit that even though declaration and mandatory injunction granted in favour of 3rd respondent herein in the previous suit regarding entire property namely ABCD, the 3rd respondent has failed to execute the decree of mandatory injunction in respect of C.C1.E.F portion in the plaint plan. 12. The learned counsel appearing for the respondents 1 and 2 also pointed out that even prior to the earlier suit, there are superstructure namely windows, mudwall and thatched roof about 2 feet between B, B1 line as shown in the earlier Commissioner's plan, but the 3rd respondent herein has failed to execute the above said mandatory injunction to remove the above said superstructure and now it is barred by limitation. Further, the learned counsel appearing for the respondents 1 and 2 submitted that the other construction in the suit property constructed during the pendency of the suit is only with the consent of the 3rd respondent herein and therefore, the 3rd respondent is not entitled to the relief sought for in this suit. 13. As rightly pointed out by the learned counsel appearing for the respondents 1 and 2, the 3rd respondent has not filed any execution petition to remove the superstructure found in C.C1.E.F portion in the plaint plan as relief granted in the earlier suit. The 3rd respondent has not proved or not contended that the vendors of the third respondent themselves removed the superstructure found in C.C1.E.F portion. Therefore, the 3rd respondent has failed to execute the decree of the mandatory injunction granted to him within the period of limitation and hence, the 3rd respondent is not entitled to mandatory injunction or recovery of possession in respect of C.C1.E.F portion in the plaint plan. 14. The learned counsel appearing for the respondents 1 and 2 admitted that during the pendency of the suit, some of the superstructures were constructed. 14. The learned counsel appearing for the respondents 1 and 2 admitted that during the pendency of the suit, some of the superstructures were constructed. But the case of the respondents 1 and 2 is that they constructed the superstructures only with the consent of the 3rd respondent. Admittedly, there is no documentary evidence to prove that during the pendency of the suit, the 3rd respondent herein has given a consent to the respondents 1 and 2 to construct superstructure in the suit property except the oral testimony of interested witness, no other evidence to prove the same as rightly pointed out by the learned counsel appearing for the appellant. Already declaration and mandatory injunction granted by the competent Civil Court in favour of 3rd respondent. In the above said circumstances, the respondents 1 and 2 have no right to construct any superstructures during the pendency of the suit. Therefore, as rightly pointed out by the learned counsel for the appellant, the alleged superstructures constructed by the respondents 1 and 2 during the pendency of the suit is illegal. 15. The learned counsel for the respondents 1 and 2 would submit that even prior to the earlier suit in O.S.No.563 of 1973, there are superstructures namely windows, mudwall with the length of 37½ feet and thatched roof with eves protrude about 2 feet on the southern side in B, B1 line as shown in Ex. A8, earlier Commissioner's plan and report, but the 3rd respondent has not taken any steps to remove the above said superstructures even though the relief of mandatory injunction was granted in the earlier suit and now the above said relief of mandatory injunction is barred by limitation. In the above said circumstances, the learned counsel for the respondents 1 and 2 submitted that the 3rd respondent herein or the appellant herein are not entitled to mandatory injunction in respect of the above said superstructures found in B, B1 line in the earlier commissioners report and plan. 16. A perusal of oral and documentary evidence adduced on either side, particularly, Ex.A8, Commissioner's report and plan filed by the Commissioner in the earlier suit would reveal that in B, B1 line, there are superstructures even prior to the decree and judgment of earlier suit. 16. A perusal of oral and documentary evidence adduced on either side, particularly, Ex.A8, Commissioner's report and plan filed by the Commissioner in the earlier suit would reveal that in B, B1 line, there are superstructures even prior to the decree and judgment of earlier suit. As contended by the learned counsel for the respondents 1 and 2, the third respondent failed to execute the decree for mandatory injunction to remove the above said superstructures and now it is barred by limitation. 17. From the above discussion, it is clear that the appellant or third respondent herein are not entitled to mandatory injunction or recovery of possession in respect of C.C1.E.F portion in this plaint plan and also in respect of the superstructures found in B,B1 line in Ex.A8, Commissioner's report and plan filed in earlier proceedings. But the 3rd respondent is entitled to mandatory injunction in respect of other portion in the suit property. 18. But the courts below have not properly considered the earlier proceedings and the oral and documentary evidence adduced in this case and also not considered the superstructures were constructed and available even prior to previous suit as already discussed, and therefore, the above said findings of both the courts below are not correct and perverse finding. 19. Therefore, the third respondent/plaintiff in the suit is not entitled to the relief of mandatory injunction in respect of C.C1.E.F portion in the plaint plan and superstructures found in B, B1 line in Ex.A8 but entitled to the reliefs only in respect of other portion and the substantial questions of law answered accordingly. In the result, the second appeal is partly allowed and the suit is dismissed in respect of C.C1.E.F portion in the plaint plan and superstructures found in B, B1 line in Ex. A8 Commissioner's Report and the suit is decreed in respect of other portion. Three months' time is granted to remove the superstructure and handover the possession to the appellant from the date of receipt of a copy of this order. No order as to costs.