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2018 DIGILAW 3222 (MAD)

Mayandi Moopanar v. Muniyandi

2018-09-25

S.RAMATHILAGAM

body2018
JUDGMENT S. Ramathilagam, J. This Second Appeal has been preferred challenging Judgment and Decree of Sub-Court, Srivilliputtur in A.S. No.73 of 2005, dated 29.03.2007 partly modifying the Judgment and Decree of the Principal District Munsif Court, Srivilliputtur in O.S. No.276 of 2001, dated 28.09.2004. 2. The suit in O.S. No.276 of 2001 was filed by the plaintiff for the relief of declaration and mandatory injunction. 3. The brief facts of the plaint averments are discussed hereunder :- The plaint schedule property and other properties originally belong to the father of the plaintiff, by name Kalimuthu and the said Kalimuthu obtained the scheduled property by way of partition deed, dated 15.07.1974. Hence, the plaint schedule property and other properties had been in enjoyment of the plaintiff as well as his brothers and their wives. The survey number of the first schedule property is No. 1155 and the house of the plaintiff is bearing No.196. In survey No.1155, there are 2 houses and in the Western side of the house, the brother of the plaintiff is residing. The North-South extension of the plaint 1st and 2nd schedule properties is 45 feet in which constructed portion is 44 + feet. Further, in the Northern side of the first and second schedule properties, the plaintiff is entitled to + feet and it is shown as the 3rd schedule property. Further, in the 3rd schedule property, there is an exclusive pathway of the defendant. So, the Northern wall of the first schedule property belongs to the plaintiff and he has been maintaining his Northern wall through the 3rd schedule property. It is the averment in the plaint that the defendant encroached the 3rd schedule property and put up a cement platform. This came to light by the plaintiff while taking the measurement through Municipality. Hence, the plaintiff has filed the suit for declaration and for mandatory injunction to remove the encroachments. 4. The defendant has filed his written statement denying the averment in the suit. The defendant denied the measurement of the first and second schedule properties as 45 feet and he also denied the description of the property in the partition deed, dated 15.07.1974. He further states that the door way of the defendant's house is facing the said pathway which lies on the Northern side of the first and second schedule properties. The defendant denied the measurement of the first and second schedule properties as 45 feet and he also denied the description of the property in the partition deed, dated 15.07.1974. He further states that the door way of the defendant's house is facing the said pathway which lies on the Northern side of the first and second schedule properties. The defendant further states that only to avoid stagnation of water in the pathway during rainy season, he has put up a cement platform. When the demand of the plaintiff was to open the doorway facing the said pathway, the defendant denied and hence the plaintiff has filed the suit. The defendant also states that he has no objection for permitting the plaintiff to use the pathway and hence he pleads for dismissal of the suit. 5. Based on the pleadings, the trial Court has framed the following issues :- (1) Whether the plaintiff has right and title over the plaint 3rd schedule property? (2) Is there any encroachment in the plaint 3rd schedule property? (3) Whether the plaintiff is entitled for mandatory injunction? (4) Is the plaintiff entitled for the relief of declaration and recovery of possession? (5) What are all the other relief’s and costs the plaintiff is entitled for? 6. The trial court decreed the suit by granting a relief of declaration and permanent injunction. Aggrieved by the same, the defendant has filed an appeal in A.S. No. 73 of 2005. The First appellate Court, while confirming the decree of declaration granted by the trial court, set aside the decree in so far as it relates to mandatory injunction on the ground that the platform was constructed by the defendant only to prevent water from stagnating during the rainy season and therefore, no prejudice will be caused to the plaintiff by reason of construction of such a platform by the defendant. Aggrieved by the same, the plaintiff is before this Court with this second appeal. 7. Heard the counsel for the appellant and the respondent. In the Memorandum of Grounds of appeal, the appellant has raised question of law which are as follows:- "1. Whether the first appellate Court is right in denying the relief of mandatory injunction when it was found that the plaintiff has proved his title in the suit property. 2. 7. Heard the counsel for the appellant and the respondent. In the Memorandum of Grounds of appeal, the appellant has raised question of law which are as follows:- "1. Whether the first appellate Court is right in denying the relief of mandatory injunction when it was found that the plaintiff has proved his title in the suit property. 2. Whether the first Appellate Court is right in refusing the relief of consequential injunction especially when the defendant is in illegal occupation of the cement platform." 8. From the pleadings and the documents filed by both sides, it was observed that the suit property is stated as 3rd schedule in the plaint, which is a vacant site. This 3rd schedule property is having an area on the Northern side of the plaint first schedule property to maintain the Northern wall of the plaintiff's house in Door No.196. The 3rd schedule property is 1/2 foot in width in 17feet in length. The measurement of the property is as found in Ex., A1, Partition deed, wherein the plaint schedule properties bearing house Nos. 196 and 197 were allotted to plaintiff's father Kalimuthu Moopanar. The measurement of the property given in the said deed is that East West 38 + feet, North South 24 feet in the first schedule property and 20 feet East West in 21 feet North South in the 2nd schedule property. Ex. A4, Survey sketch also shows that the first and second schedule properties comprised in Survey No.1155. Hence, the issue has to be ascertained as to whether there is any space on the Northern side of the plaintiff's house, which he states as 3rd schedule property, that is his exclusive property. A Commissioner was appointed to visit the suit schedule property and he has also filed his report and plan marked as Exs. C1 to C4. The Commissioner has stated that the measurement of 45 feet from Point ''J" in the report and it goes 1 + feet further North of the plaintiff's northern wall. From the partition deed, it was observed that the Southern boundary is described as the house of one Narayanan Moopanar. As per Ex.A6 is the SRO copy of the sale deed executed by Lakshmiammal in favour of Muniyandi. By way of Ex.A6, the defendant has purchased 17 feet East West and 13 feet North-South. From the partition deed, it was observed that the Southern boundary is described as the house of one Narayanan Moopanar. As per Ex.A6 is the SRO copy of the sale deed executed by Lakshmiammal in favour of Muniyandi. By way of Ex.A6, the defendant has purchased 17 feet East West and 13 feet North-South. From the report of the Commissioner, it was clear that the plaintiff has left + foot on the northern side of his wall. The East West extension of 3rd schedule property is given as 17 feet. Hence, as per the document and the measurement taken by the Commissioner, the 3rd schedule property is available at the Northern side of the plaintiff’s 1st and 2nd schedule properties. The Commissioner has also noted in his report that there is a cement platform annexing the plaintiff's Northern wall. As already observed the plaintiff has right over the + feet North-South and 17 feet East-West on the Northern side of his house and this cement platform put up by the defendant is + feet vacant area. Hence, it is clear that the defendant has encroached in the plaintiff's property. Hence, as per the document filed by both the plaintiff and the defendant and as per the measurement of the Commissioner and his report, indicating that there is an encroachment by the defendant in the plaintiff's Northern side of the property, it was held that the plaintiff is entitled to the suit claim. When it was observed that the plaintiff is entitled for the 3rd schedule property, he is also entitled for the relief of declaration declaring that the 3rd schedule property is the exclusive property of the plaintiff. The defendant, who has constructed the cement platform in the 3rd schedule property states that he has constructed the same only to prevent the stagnation of water and that was not objected by the plaintiff and further the construction of cement platform in the 3rd schedule is only a support to the plaintiffs Northern wall and in no way it causes interference to the plaintiff's enjoyment of the 3rd schedule property. 9. When the case of the plaintiff is that the defendant has encroached in the 3rd schedule property it is also admitted by the appellant/defendant that the right of the plaintiff to maintain the wall is through the 3rd schedule property. 9. When the case of the plaintiff is that the defendant has encroached in the 3rd schedule property it is also admitted by the appellant/defendant that the right of the plaintiff to maintain the wall is through the 3rd schedule property. Hence, in view of the evidence and documents filed before the trial Court, it is clear that there is an encroachment in the 3rd schedule property by the appellant/defendant, which is also admitted by the appellant, The plaintiff is entitled for the relief of mandatory injunction and also to remove the cement platform. 10. Hence, in view of the above findings, the decree and judgment of the trial Court regarding the relief of mandatory injunction, the Second Appeal is dismissed by confirming the decree and judgment of the trial Court. No costs. Consequently, connected miscellaneous petitions are also closed.