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2018 DIGILAW 2514 (MAD)

M. Pathmanabhan v. M. Munusamy (Deceased)

2018-08-13

T.RAVINDRAN

body2018
JUDGMENT : 1. In this second appeal, challenge is made to the Judgment and Decree dated 14.09.2004 passed in A.S.No.259 of 2003 on the file of the VI Additional Judge, City Civil Court, Chennai, confirming the Judgment and Decree dated 21.01.2003 passed in O.S.No.4298 of 1996 on the file of the XIV Assistant Judge, in charge of III Assistant Judge, City Civil Court, Chennai. 2. The second appeal has been admitted on the following substantial questions of law: “1. Whether the courts below having decreed the suit for permanent injunction are right in dismissing the suit for mandatory injunction which is consequential in nature? 2. Whether the courts below are properly appreciated of the evidence on record as held by this Hon'ble Court in 1998 (2) Law Weekly page No.333? 3. Whether the Courts below are right in dismissing the suit for mandatory injunction since no photographs and advocate commissioner application filed?” 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. 3. Whether the Courts below are right in dismissing the suit for mandatory injunction since no photographs and advocate commissioner application filed?” 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Suffice to state that the appellant/plaintiff had laid the suit against the respondents for the reliefs of mandatory injunction and permanent injunction in respect of the plaint schedule property described as house, ground and premises bearing Door No.6/100A, Rajaji Street, G.K.M. Colony, Madras-82 of an extent of 2400 Sq.ft and comprised in R.S.No.153 of Ayanavaram Village and situate within the sub registration District of Perambur and Registration District of Madras and contending that he has been given the abovesaid property by Sri Kusuma Harinath Ex-Serviceman Association stating that the Ministry of Defence had allotted 139 Acres of defence land to the above said association and in turn, the above said association had given the above described property to him and thereupon, he had put up a construction over the said property and accordingly, enjoying the same and while so, it is his case that the defendants, without any authority, under the guise of the order passed in I.A.No.9694 of 1998 dated 15.07.1998 and taking advantage of the Court holidays, trespassed into the above said property and put up a masonry construction on the southern side of an extent of 15 feet by 10 feet despite the objections put forth by him and despite the above said order being set aside by the High Court in CRP No.2975 of 1998 dated 04.12.1998 and as the defendants had refused to demolish the unauthorised illegal construction put up by them as above stated in the suit property and also attempting to interfere with his possession and enjoyment of the suit property, accordingly, it is stated that he has been necessitated to lay the suit for appropriate reliefs. 5. 5. The defendants had resisted the plaintiff's suit, inter alia, contending that they are in occupation of plot No.6/100C a pond area, from the days of the first defendant's father, the deceased Mani and they had not encroached into the suit property as alleged in the plaint and further, also contended that plot No.6/100A, Rajaji Street, G.K.M. Colony, Madras-82 was allotted to V.Mani and the plaintiff's land site comes under Jawahar Nagar, 6th Main Road bearing Door No.25 and it is also stated that plot No.6/100B is occupied by one Panneer Selvam and as above stated, plot No.6/100C belongs to the defendants and accordingly, it is stated that the plaintiff, by giving a false address, has obtained service connection, tax assessment etc., and accordingly, prayed for the dismissal of the plaintiff's suit. 6. On the basis of the above said pleadings put forth by the respective parties, it is found that the plaintiff in order to substantiate his case has examined PW1 and marked Exs.A1 to A14 and the defendants had examined DWs1 to 3 and marked Exs.B1 to 32 and further, Exs.C1 to 5 were also marked. 7. The trial Court, on an appreciation of the abovesaid oral and documentary evidence adduced by the respective parties, held that the plaintiff has established himself to be in the possession of Plot No.6/100A and the defendants are in the possession of Plot No.6/100C and the plot No.6/100B is in the occupation of one Panneer Selvam and accordingly, holding that the defendants having no manner of right or interest over the plot No.6/100A i.e. the suit property and as the same continue to remain in the possession of the plaintiff, accordingly, held that the plaintiff is entitled to the relief of permanent injunction. However, the trial Court on the footing that the plaintiff has failed to establish the alleged encroachment said to have been made by the defendants in the suit property by taking out a commission for the local inspection of the suit property or by producing the necessary photographs and on that footing held that the plaintiff is not entitled to the relief of mandatory injunction and in toto, decreed the suit as prayed for as regards the relief of permanent injunction and however, dismissed the plaintiff's suit in respect of the prayer for mandatory injunction. Aggrieved over the same, the plaintiff has preferred the first appeal. Aggrieved over the same, the plaintiff has preferred the first appeal. At this juncture, it has to be noted that as regards the grant of the relief of permanent injunction in favour of the plaintiff, it is found that the defendants have not preferred any independent appeal or cross objection in the first appeal preferred by the plaintiff. The first appellate Court also on the footing that the plaintiff has not specifically described the property alleged to have been encroached by the defendants as claimed in the plaint and further, the plaintiff also having failed to take out a commission to establish the case of the alleged encroachment made by the defendants into the suit property and also not marked any photographs pertaining to the same, on the abovesaid reasonings, concurred with the refusal of the relief of mandatory injunction as determined by the trial Court and thereby, dismissed the first appeal preferred by the plaintiff. Impugning the same, the present second appeal has been laid. 8. Inasmuch as the plaintiff has been held to be in the possession and enjoyment of the suit property as above described and accordingly, the Courts below had held that the plaintiff is entitled to seek the relief of permanent injunction and accordingly it is seen that the defendants have no right or interest in any manner in respect of the suit property. As above noted, it is also the determination of the Courts below that the defendants are in the occupation of only plot No.6/100C and not the suit property. 9. Originally, the suit has been laid by the plaintiff only for the relief of permanent injunction. However, according to the plaintiff, inasmuch as the defendants, taking advantage of the order obtained by them in I.A.No.9694 of 1998 dated 15.07.1998, had encroached into the suit property on the southern side and put up a masonry construction of an extent of 15 feet by 10 feet despite his objections and accordingly, it is his case that he has been necessitated to amend the plaint for including the relief of mandatory injunction for the removal of the abovesaid unauthorised and illegal construction put up by the defendants in the suit property. Accordingly, it is found that the plaintiff, while seeking the relief of mandatory injunction has specifically mentioned in the said relief column that the same is with reference to the unauthorised and illegal construction put up by the defendants in the suit property as above described of an extent of 15 feet length and 10 feet breadth on the southern side. Thus, it is found that according to the plaintiff, the defendants have encroached into the southern side of the suit property of an extent of 15 feet length and 10 feet breadth and put up the unauthorised and illegal construction despite his objections and thereby, he had been necessitated to seek the relief of mandatory injunction. 10. No doubt, the plaintiff has not separately described the schedule of property as regards the relief of mandatory injunction sought for by him. However, as rightly put forth, when the unauthorised and illegal construction put up by the defendants in the suit property had been described by the plaintiff in the relief para as that of an extent of 15 feet length and 10 feet breadth on the southern side of the suit property and when the suit property has been described clearly and there is no dispute as regards the same and even further, when the Courts below had held that the plaintiff is in the occupation and possession of the suit property and accordingly, also granted him the relief of permanent injunction, which relief has not been challenged by the defendants till date, it is seen that as rightly argued by the plaintiff's counsel, considering the description of the property with reference to which the relief of mandatory injunction is sought to be enforced has been set out by the plaintiff in the relief para, in my considered opinion, the failure of the plaintiff in describing the abovesaid property separately in a schedule would not in any manner disentitle the plaintiff to obtain the relief of mandatory injunction. Equally, it is found that when the plaintiff has been held to be in the possession and enjoyment of the suit property and when the defendants are not shown to have any title or right in respect of the suit property and they are found to be in the possession of only plot No.6/100C, it is seen that the defendants are not entitled to encroach into the suit property and put up any unauthorised and illegal construction over the same. However, according to the plaintiff, the defendants had preferred an application in I.A.No.9694/1998 and the abovesaid interlocutory application has been preferred by the defendants in the suit laid by the plaintiff to grant them permission to repair and change the roof of their premises bearing Door No.6/100C Rajaji Street, G.K.M. Colony, Madras-82. When the suit has been laid by the plaintiff in respect of the suit property bearing plot No.6/100A Rajaji Street, G.K.M. Colony, Madras-82 and when the suit pertains to the reliefs as regards the premises bearing Plot No.6/100A, Rajaji Street, G.K.M. Colony, Madras-82 and accordingly, when the plaintiff is not seeking any relief as regards the property comprising in Plot No.6/100C, it is seen that there is no need for the defendants to prefer such an application for seeking any permission to repair and change the roof in their property, particularly, in the suit laid by the plaintiff. But, unfortunately it is found that the trial Court has entertained the said application and it is the case of the plaintiff in the plaint, that taking advantage of the said order, in the guise of effecting repair and change of roof in their premises bearing Door No.6/100C, the defendants had unlawfully and illegally encroached into the suit property on the southern side and put up the masonry construction of an extent of 15 feet length and 10 feet breadth, in respect of which, according to the plaintiff, he had been necessitated to seek the relief of mandatory injunction. 11. It is found that the abovesaid interlocutory application preferred by the defendants was entertained by the trial Court. 11. It is found that the abovesaid interlocutory application preferred by the defendants was entertained by the trial Court. Impugning the same, the appellant/plaintiff preferred CRP No.2975 of 1998 and this Court holding that when the subject matter of the suit is only with reference to the Door No.6/100A, there is no question of entertaining any application with respect to the property bearing Door No.6/100C, Rajaji Street, G.K.M. Colony, Madras-82 and accordingly, holding that the lower Court has no jurisdiction to entertain such an application in the suit laid by the appellant/plaintiff, allowed the civil revision petition filed by the appellant and thereby, dismissed the interlocutory application filed by the defendants in I.A.No.9694/1998. It is stated by the plaintiff's counsel that the Courts below had failed to take note of the abovesaid material facts and when according to the plaintiff, only in the guise of the order obtained in I.A.No.9694/1998, the defendants had encroached into the property of the plaintiff and put up the unauthorised construction and thereby, the plaintiff having been necessitated to seek the relief of mandatory injunction, on the assessment of the abovesaid facts, the Court should have granted the relief of mandatory injunction also in favour of the plaintiff. The above argument seem acceptable. 12. The Courts below had not rejected the relief of mandatory injunction sought for by the plaintiff on the footing that the defendants had not encroached into the suit property and put up the unauthorised construction. On the other hand, the three factors, which weighed with the courts below for negativing the relief of mandatory injunction, are, firstly, the plaintiff has failed to describe the encroached property as a separate schedule in the plaint for enabling the plaintiff to execute the relief of mandatory injunction, if granted, by way of execution, secondly, the plaintiff has failed to establish the case of the mandatory injunction by producing the necessary photographs and thirdly, the plaintiff has failed to establish his case by taking out a commission. However, as rightly put forth by the plaintiff's counsel, there is no need on the part of the plaintiff to establish the alleged encroachment made by the defendants into the suit property by producing the photographs or taking out the commission, when the materials placed by the plaintiff and available on record are more than sufficient to establish the theory of encroachment projected by the plaintiff and when the plaintiff has been held to be entitled to the possession and enjoyment of the suit property and when the defendants are found to be not entitled to the suit property in any manner and furthermore, when the plaintiff had been granted the relief of permanent injunction against the defendants, accordingly, it is contended that the plaintiff having established that the defendants under the guise of the order obtained in I.A.No.9694/1998 had encroached into the suit property and thereby, invaded into the right of the plaintiff, accordingly, it is stated that the Courts below should have granted the relief of mandatory injunction as prayed for. The reasonsings of the Courts below that the plaintiff has not given the encroached property in the plaint schedule and thereby, is not entitled to obtain the relief of mandatory injunction as such cannot be made applicable to the case at hand. As above noted, the plaintiff has clearly averred in the plaint that the defendants had encroached into the suit property on the southern side of an extent of 15 feet length and 10 feet breadth and thereby, put up unauthorised and illegal construction in the suit property and when according to the plaintiff's case, the abovesaid encroachment had been made by the defendants on the strength of the order passed in I.A.No.9694 of 1998 and when it is found that the abovesaid order had been set aside by this Court in CRP No.2975 of 1998, it is seen that the plaintiff has prima facie established the encroachment made by the defendants into the suit property and when the area of encroachment has been clearly outlined by the plaintiff in the relief column itself, in such event, there is no need for the plaintiff to bring out any separate schedule as such, as regards the encroached area of the suit property in the plaint. Therefore, the reasonings of the Courts below that the plaintiff has failed to describe the encroached area as a separate schedule in the plaint and therefore, he is not entitled to the relief of mandatory injunction as such cannot be countenanced. When the plea of encroachment projected by the plaintiff has been brought home in the face of the abovesaid materials placed on record, as rightly argued there is no need to further buttress the same by taking out a commission or by producing the photographs with reference to the same. If really, the defendants had put up the construction in their property bearing Door No.6/100C, there would have been no need for the plaintiff to lay the suit against the defendants for the reliefs prayed for. On the other hand, inasmuch as the defendants attempted to interfere with the plaintiff's possession and enjoyment of the suit property, accordingly, it is seen that the plaintiff had been necessitated to institute the suit against the defendants. Not only that, it is further seen that the plaintiff had also levied the suit against the first defendant's father Mani and another for the relief of permanent injunction on the footing that they had attempted to interfere with his possession and enjoyment of the suit property and in the said suit also, the plaintiff had been granted the relief of permanent injunction as prayed for. It is thus found that all along, the first defendant's father and thereafter, the defendants had been continuously attempting to interfere with the plaintiff's possession and enjoyment of the suit property and accordingly, at one stage of the matter, they had encroached into the suit property on the southern side of a particular extent as stated by the plaintiff and put up the unauthorised construction. In such view of the matter, it is found that the plaintiff, on the basis of the materials placed on record, has clearly made out that the defendants had encroached into the suit property and put up the unauthorised construction and in this connection, the evidence adduced by the plaintiff examined as PW1 and the other materials placed on record by him are found to be sufficient and when the plaintiff has set out the area of encroachment made by the defendants in the suit property in the prayer column very clearly, in my considered opinion, the same is sufficient for identifying the area of encroachment made by the defendants and there is no need to bring out the same in a separate schedule in the plaint. Further, as put forth by the plaintiff's counsel, considering the evidence of DW3, when it has been admitted by him that only on the strength of the order obtained in I.A.No.9496 of 1998, the roofing has been put up, it is found that as rightly projected by the plaintiff, the defendants had encroached into the suit area of the specific extent as stated in the plaint and in such view of the matter, when the plaintiff is found to be entitled to the suit property and the Courts below had also granted the relief of permanent injunction in his favour, the reasonings of the Courts below for not granting the relief of mandatory injunction being found to be unsustainable as above discussed, in my considered opinion, the Courts below should have also granted the relief of mandatory injunction in favour of the plaintiff as prayed for. 13. In the light of the above discussions, the Courts below had erred in holding that the plaintiff is not entitled to the relief of mandatory injunction on the footing that no photograph had been filed and commission application had not been taken by him with reference to the same. When the plaintiff has established the encroachment made by the defendants into the suit property, on the materials already available on record and as above pointed out, there is no need for the plaintiff to buttress the same by marking the photographs and taking out commission as determined by the Courts below. When the plaintiff has established the encroachment made by the defendants into the suit property, on the materials already available on record and as above pointed out, there is no need for the plaintiff to buttress the same by marking the photographs and taking out commission as determined by the Courts below. In such view of the matter, it is found that the Courts below had not properly appreciated the evidence on record in the right perspective and thereby, erroneously declined the relief of mandatory injunction as prayed for by the plaintiff. The substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendants. In conclusion, the Judgments and Decrees of the Courts below declining the relief of mandatory injunction are set aside and resultantly, the plaintiff is also granted the relief of mandatory injunction as prayed for in O.S.No.4298 of 1996. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.