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2016 DIGILAW 3676 (MAD)

Vayapuri v. Kodiyan

2016-10-25

G.JAYACHANDRAN

body2016
JUDGMENT : G. JAYACHANDRAN, J. 1. The representative suit filed by the residents of Chetty Street, Vazhkai Village, Nagapattinam District, seeking permanent injunction against the defendants in respect of their peaceful enjoyment and possession of the suit schedule property as pathway and mandatory injunction to remove the fencing put up by the defendants on the either side of the pathway was dismissed by the trial court. The appellate court reversed the judgement and decree. Hence, the present second appeal by the defendants. 2. The case of the plaintiffs was that the defendants 1 and 4 who are the owners of the S.F. No. 175/12 and 175/13 have annexed to their land the pathway which is running East to West on the Northern side of Chetty Street thereby preventing the right of way enjoyed by the residents of Chetty Street to reach the Allikulam (a water body). 3. The trial court on the basis of evidence let in by the rival parties has held that admittedly the suit land is a natham porambokku. The fourth defendant has purchased a tiled house with vide Ex A-5 on 5.5.1972 wherein, one of the boundary to the house is mentioned as west of the street. In Ex A-1 the survey map the West of the suit pathway is shown in dotted line. Therefore, the trial court concluded that the street mentioned in Ex A-5 is the pathway in dispute. However, relying upon the Advocate Commissioner's report -Ex B-7 and sketch - Ex B-6 filed in the earlier suit in O.S 195/1994, the trial court held that the pathway had been closed by the defendants much prior to the suit. Admitting it, the plaintiffs have given a representation - Ex A-3 dated 18.04.1994, to the Nannillam Tahsildar to remove obstructions and permit the Chetty Street residents to use the suit land as pathway. Whileso, much after this representation, the suit has been filed seeking injunction as if plaintiffs are in continuous enjoyment of the pathway. For the said reason, the trial court held that, "though it has been proved on the side of the plaintiffs that there is a pathway, it has not been proved that on the date of filing of the suit, it was used by them. So the plaintiff could not get the decree as prayed for". 4. For the said reason, the trial court held that, "though it has been proved on the side of the plaintiffs that there is a pathway, it has not been proved that on the date of filing of the suit, it was used by them. So the plaintiff could not get the decree as prayed for". 4. Aggrieved by the dismissal of the suit, the plaintiffs preferred appeal before the District Court, Nagapattinam. Whereas, the defendants aggrieved by the finding regarding the existence of pathway preferred cross objection in the appeal. The First Appellate Court, on consideration and re appreciation of the evidence, reversed the judgment the trial court and allowed the suit granting permanent and mandatory injunction in favour of the plaintiffs on the ground that the dismissal of the suit that the plaintiff have not proved that the pathway was not in actual usage on the date of filing the suit is unacceptable. Further, held that the defendants 1 and 4 have unauthorisedly occupied and enjoying the pathway which has to be used by the villagers. The cross objection filed by the defendants was dismissed. 5. The second appeal is directed against the judgment and decree of the first appellate court reversing the judgment and decree of the trial court. This court has admitted the second appeal on the following Substantial questions of Law:- "(1) Whether the suit for mandatory injunction is maintainable in the absence of prayer for declaration of the respondents 1 to 4, right over the suit property? (2) Whether the suit is bad for nonjoinder of necessary party namely the Government of Tamil Nadu who is the admitted owner of the suit property?" 6. The learned counsel for the appellants relying upon Ex B-4 " B Memo" dated 25.7.1975, Ex B-1 petition submitted by the residents of Chetty Street to the Tahsildar alleging closure of pathway, Ex B-6 and Ex B-7 the sketch and advocate commissioner's report respectively filed in their suit for injunction against the defendants 2, 3 and 5 contented that the plaintiffs who seek equitable relief of injunction has not come with clean hands. Suppressing and ignoring the facts such as the defendants are in enjoyment and possession of the disputed portion of the suit property ever since 1975 the revenue authorities have issued B Memo to that effect and the civil court decree (Ex B-8) granting injunction in favour of defendants 1 and 4 relying upon commissioner report and sketch duly marked as Ex B-7 and B-6 respectively, the suit has been filed. While the trial court has rightly found that the plaintiffs are not in enjoyment or possession of the property and dismissed the suit, the appellate court overlooking the overwhelming evidences let in by the defendants had erroneously allowed the suit for mandatory injunction without any plea or relief of declaration. 7. Per contra, the counsel for the respondents relying upon the judgment rendered in Palaniammal v. Pechimuthu, ( 1991 (1) MLJ 31 ) contented that, it is not necessary in this case to seek declaratory relief since the land is admittedly a porambokku land owned by the Government and no dispute over the title. The dispute is only regarding the use and enjoyment of the property as pathway which is prevented by the defendants by putting up fence on either side. 8. In Palaniammal v. Pechimuthu case (cited supra), it was contented by the learned counsel for the appellant that, it is admitted by the plaintiffs in paragraph No. 6 of the plaint that the defendants had already trespassed into the suit property. Therefore without prayer for declaration of title and recovery of possession, the suit for bare injunction and mandatory injunction is not maintainable. 9. In answer to this contention, the Learned Judge has held that, "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 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 plaintiffs to seek declaration of their title or recovery of possession." 10. In the case on hand, the history of encroachment is traced way back to 1975. In an earlier suit in O.S.195/1994 the court appointed commissioner had visited the suit property and noted down old fence on either side of the disputed pathway. In the case on hand, the history of encroachment is traced way back to 1975. In an earlier suit in O.S.195/1994 the court appointed commissioner had visited the suit property and noted down old fence on either side of the disputed pathway. Ex B-1 representation of the plaintiffs, Ex B-4 'B' Memo, Ex B-6, Ex B-7 and Ex B-8 are documents which indicates that the defendants have encroached the suit pathway not after filing of the suit or soon before filing of the suit. The alleged encroachment could not be taken as a recent encroachment which does not warrants relief of declaration. Therefore, the judgment cited by the respondent is not applicable to the facts of this case. 11. One peculiar fact in this case which requires consideration is that, pending appeal the appellants/defendants have taken out two applications which are pending consideration of this court. C.M.P. 11751/1996 is filed for stay of all further proceedings pending disposal of the second appeal. C.M.P. 11750/1996 is to receive additional document namely the patta issued to the appellants/defendants in respect of the disputed land. In the affidavit filed in support of these petitions, the first appellant has stated that, pending first appeal the Government has issued patta to him on 07.01.1996 for the suit property with new survey number. He on a bonafide belief that the production of patta will not be useful for deciding the appeal, failed to inform about the grant of patta in his favour to his counsel who conducted the first appeal. Having lost in the appeal, on advice, he has sought leave of this court to accept the patta issued in his name as additional evidence. The respondents herein in its counter filed in response to C.M.P. 11751/1996 had denied any knowledge about the issuance of patta to the appellants in respect of the suit property. 12. The courts below for the point whether the Government is a necessary party to the suit, has held that, the suit property is natham porambokku and no relief is claimed against the Government to affect the suit for non-joinder of necessary party. 12. The courts below for the point whether the Government is a necessary party to the suit, has held that, the suit property is natham porambokku and no relief is claimed against the Government to affect the suit for non-joinder of necessary party. The First Appellate Court has gone further and held that the Government of Tamil Nadu need not be impleaded as a party to this suit because the right for the usage of the suit pathway to the plaintiffs is a right given by the Government, that no individual could deny the said right, and so the reliefs prayed for by the plaintiffs against the defendants 1 and 4 could be granted. 13. Had the first appellate court been put to notice of the patta granted on 7.1.1996 in favour of the appellants it is highly doubtful whether the first appellate court would have made the above observation regarding non joinder of Government. Further, the conclusion on the cross objection made by the appellants regarding the nature of the disputed property would have varied. 14. No doubt, the document sought to be relied on by the appellants is subsequent to the disposal of the suit and issued pending appeal. Same was not been produced at the earliest point of time. The explanation for not producing it before the first appellate court does not fall within the parameter set under Order 41 Rule 27 of CPC. However, issuance of patta pendente lite if proved to be true, then the character of the land in dispute changes from natham porambokku to patta land. This will have serious bearing on both the substantial question of law namely failure to seek declaratory relief and non-joinder of the Government as a party. The suit being a representative suit filed for the right of pathway, this court is of the opinion that rendering judgment ignoring the subsequent development will lead to severe miscarriage of justice. 15. Hence to render complete justice for the parties, the judgments and decrees of the courts below are liable to be set aside. This court in exercise of the power under Or 41 Rule 23(A) C.P.C., finds fit to remand the case back to the trial court for the parties to agitate their right over the suit property with liberty to adduce additional evidences both documentary and ocular, if so advised. 16. This court in exercise of the power under Or 41 Rule 23(A) C.P.C., finds fit to remand the case back to the trial court for the parties to agitate their right over the suit property with liberty to adduce additional evidences both documentary and ocular, if so advised. 16. In the above said circumstances, the Second Appeal is allowed. The judgments and decrees of the courts below are set aside. The case is remanded back to the trial court for fresh consideration and the parties are at liberty to adduce additional evidences both documentary and ocular, if so advised. Consequently, connected miscellaneous petitions in CMP. Nos. 11750 and 11751 of 1996 are closed. No order as to costs.