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2019 DIGILAW 1101 (MAD)

Sargunaraj v. R. Asaithambi

2019-04-12

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 09.04.2001 passed in A.S.No.29 of 1997 on the file of the V Additional City Civil Court, Chennai, setting aside the judgment and decree dated 26.08.1996 in O.S.No.9203 of 1993 on the file of the I Assistant City Civil Court at Chennai.) 1. In this second appeal, challenge is made to the judgment and decree dated 09.04.2001 passed in A.S.No.29 of 1997 on the file of the V Additional Judge, City Civil Court, Chennai confirming the judgment and decree dated 26.08.1996 passed in O.S.No.9203 of 1993 on the file of the First Assistant Judge, City Civil Court, Chennai. 2. For the sake of convenience, the parties are referred to as per the rankings in the trial court. 3. Suit for mandatory injunction. 4. The case of the plaintiff in brief is that he is an allottee of the Tamil Nadu Slum Clearance Board in respect of B-8, I Floor, Pushpa Nagar, I street, Nungambakkam, Madras 34 and is having 1/32 undivided share in the land and entitled to use the open space in and around the building along with co-allottees of the abovesaid premises. There are 32 tenements, out of which the defendants had encroached the open space illegally by interfering with the rights of the plaintiff who is having common undivided 1/32 share over the open space. There are 32 tenements, out of which the defendants had encroached the open space illegally by interfering with the rights of the plaintiff who is having common undivided 1/32 share over the open space. The defendants without any right or authority encroached upon the common amenity thereby infracting the common enjoyment of all, the allottees including the plaintiff and they had encroached 10 ft x 16 ft in front of their tenements by putting up construction and by raising wall over the compound wall and thereby preventing the co-allottees to have free ingress and engross into the suit property and as per G.O.Ms.No.897 dated 03.08.1990, the allottees are bound to maintain the tenements by forming a registered society and the same should be registered under the Tamil Nadu Societies Registration Act and accordingly the allottees of Pushpa Nagar, First Street formed an association under the name and style of “Valluvar Residents Welfare Association” and the same was registered, however unfortunately the abovesaid association is not taking any steps despite repeated demands from the members including the plaintiff to remove the encroachment made by the defendants in the common space and in fact, the second defendant is the sister of the Secretary of the abovesaid Association and she had also encroached into the common area with the connivance of the secretary and the 6th defendant who is the president of the abovesaid association also encroached into the common space in front of his tenement and similarly the vice-president of the association namely the 11th defendant had also encroached into open space in front of his house and thereby the association is not taking steps to remove the encroachment made in the common space and the chairman of the Tamilnadu Slum Clearance Board also issued the notice dated 12.04.1993 to the association stating that the open space area is left in the tenements for the common use of all the residents and not for any individual ownership and none of the allottees / occupants are permitted to build any temporary or permanent super structures in the open space. When the Slum Clearance Board had made a provision in its resolution No.38 dated 29.01.1991, for levying rate at Rs.25 per sq.ft, if the encroachment or addition made by the allottees are unobjectionable and the defendants had not taken any steps to regularize their encroachment as per the abovesaid resolution as they had encroached into the open space in entirety in front of the tenements and put up the construction over the compound wall without providing any space to move and hence according to the plaintiff, left with no other alternative, he has been necessitated to lay the suit in a representative capacity against the defendants. 5. The contesting defendants resisted the plaintiff's suit by contending that the suit laid by the plaintiff is not maintainable either in law or on facts and according to them when the registered association namely Valluvar Residents Welfare Association is in existence, the plaintiff has no locus standi to file the suit and accordingly the suit laid by the plaintiff in the representative capacity is liable to be rejected on that score alone and further according to them the suit laid by the plaintiff is barred under section 65 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and no Civil Court has the jurisdiction in respect of any matter which the Government or the prescribed authority empowered or by under the Act to determine and no injunction shall be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by under the abovesaid act and the defendants are the allottees of the Tamil Nadu Slum Clearance Board and continue to be in the possession and enjoyment of their respective tenements and the defendants denied that they had encroached the open space illegally by interfering with the rights of the plaintiff and the defendants never encroached the rights of the plaintiff or any other co-allottoees. The resolution No.38 dated 29.01.1991 recognized the enjoyment of additional construction if they are not affecting the water line, sewage line, by paying necessary fees, and the plaintiff has been given a separate access to the upstairs portion and therefore he has no right of way through the defendants' portion and accordingly it is contended that different access/way had been provided for the various tenements and accordingly the open space in front of the ground floor is being used by the tenements and the space on the rear side is meant for the use of the allottees of the first floor tenements. The defendants had put up the compound wall long back and also put up the shed with asbestos roof and enjoying the same over the period of 30 years and thereby the defendants have got the right of adverse possession over the space where they had put up construction and hence the suit is liable to be dismissed. 6. In support of the plaintiff's case, P.Ws.1 to 3 were examined. Exs.A1 to A8 were marked. On the side of the defendants, D.W.1 was examined. Exs.B1 to B3 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the plaintiff's suit. Impugning the same, the present second appeal has been preferred. 8. At the time of admission of the second appeal the following substantial questions of law were formulated for consideration. 1. Whether the plaintiff has any locus standi to file the above suit without making the Slum Clearance Board as a party? 2. Whether the plaintiff has any authority to question any constructions put up by the defendants some 15 years before, if he is not affected of the same? 3. Is not the suit barred under Section 65 of the Tamil Nadu Slum Areas Improvement and Clearance Act 11 of 1971? 4. Is not Section 29 of the Tamil Nadu Slum Areas Improvement and Clearance Act 11 of 1971 invited in respect of Execution? 9. As could be seen from the materials placed on record, the plaintiff and the defendants are the allottees of the Tamil Nadu Slum Clearance Board and accordingly they are in the occupation and enjoyment of the various tenements as allotted to them by the Tamil Nadu Slum Clearance Board. 9. As could be seen from the materials placed on record, the plaintiff and the defendants are the allottees of the Tamil Nadu Slum Clearance Board and accordingly they are in the occupation and enjoyment of the various tenements as allotted to them by the Tamil Nadu Slum Clearance Board. The grievance of the plaintiff is that the defendants had occupied the common space earmarked for the common enjoyment of all the allottees of the Tamil Nadu Slum Clearance Board and accordingly by way of the abovesaid encroachment committed by the defendants, the plaintiff and other co-allottees are prevented from enjoying the common space and thereby their access to their tenements is being hindered and accordingly it is stated that the plaintiff has been necessitated to lay the suit for necessary reliefs. 10. The defendants had disputed the case of the plaintiff contending that they had not committed any encroachment in the open space as alleged by the plaintiff and accordingly it is also stated by them that they had put up certain super structures in the space available in the front area of their tenements and the same cannot be complained of by the plaintiff or any other co-allottees and by way of the same, the plaintiff's access to his tenement is not obstructed in any manner and further also pleaded by the defendants that on account of their long, continuous possession and enjoyment of the space where they had put up their construction, they had prescribed title to the said space by way of adverse possession and accordingly prayed for the dismissal of the plaintiff's suit. Further according to the defendants the suit laid by the plaintiff is barred under section 65 of the Tamil Nadu Slum Areas [Improvement and Clearance ] Act, 1971 and furthermore, it has also been pleaded by the defendants that the plaintiff is not entitled to maintain the suit in the representative capacity and according to them only the association formed by the allottees is entitled to lay the suit, if any, against the alleged encroachment and furthermore it is also putforth by them that the suit laid by the plaintiff is barred under section 29 of the abovesaid Act and accordingly prayed for the dismissal of the plaintiff's suit. 11. 11. Though from the plaint averments as well as the case projected by the plaintiff, it is found that the Valluvar Residents Welfare Association had been formed by the allottees, however it is the grievance of the plaintiff that the said association has not taken any appropriate steps to remove the encroachment made in the common area by the defendants despite repeated demands and requests and according to the plaintiff, even the association office bearers as well as their relatives who are the defendants had committed the encroachment in the common area and put up the construction and accordingly the association has not evinced interest in taking any action with reference to the same and therefore he has been necessitated to lay the suit against the encroachers namely the defendants in the representative capacity. 12. As could be seen from the copy of G.O.Ms.No.897 dated 03.08.1990 marked as Ex.A3, it is found that the maintenance of the tenements should be the responsibility of the allottees and therefore the allottees together should ensure that the tenements are maintained as per the rules. In fact, the Chief Engineer, Slum Clearance Board has sent a communication dated 12.04.1993 to the Chairman, Valluvar Residents Welfare Association marked as Ex.A2, whereunder also it has been mentioned that all the 32 occupants of the tenements have 1/32 share of individual land in the scheme and the open space left is for the common use of all the residents and not for any individual ownership and none of the occupants are permitted to build any temporary and permanent structures in the open space as per the development control rules of MMD. It is thus found that other than the tenements allotted to each allottee, they are not entitled to put up any construction either temporary or permanent in the open space left for the common enjoyment of all the allottees and in such view of the matter, if any such allottee, contravenes the abovesaid direction or rule and put up any unauthorised construction in the open space meant for the common usage of all the allottees and as the allottees together are directed to maintain the tenements as per the G.O marked as Ex.A3 as above referred to, in such view of the matter, the plaintiff being one of the allottees, accordingly had come forward with the suit in the representative capacity complaining that the defendants had encroached into the common space and put up certain constructions there on and resultantly the same had hindered or prevented their enjoyment of the common space and hence putforth that the appropriate reliefs have been claimed against the defendants. In this connection, as rightly found by the Courts below, the plaintiff and his witnesses examined as P.Ws.1 to 3 have tendered clear evidence that the defendants had encroached into the common space and put up the construction and thereby caused hindrance, inconvenience to them in the enjoyment of their respective tenements. Furthermore, as rightly found by the Courts below, the defendants in their written pleas have not in specific denied that they had not put up the construction in the open space and on the other hand, the argument has been putforth by the defendants that the front space and the rear space available in front and rear portion of the tenements is meant for the use and enjoyment of the ground floor and first floor occupants respectively. However no such order or G.O had been projected by the defendants to establish that the front space and the rear space of the tenements are to be enjoyed as putforth by them and in such view of the matter, it is found that the defendants with a view to conceal or give a justification for the encroachment committed by them in the open space have come forward with the new theory without any proof or materials pointing to the acceptability of the same. Thus it is found that the defendants had committed encroachment in the open space and put up certain constructions which had caused hindrance in the enjoyment of the tenements by the plaintiff and others and accordingly it is found that as rightly determined by the Courts below the plaintiff had been necessitated to lay the suit against the defendants for appropriate reliefs. Inasmuch as the association formed by the residents had not evinced interest to take appropriate action against the encroachment committed by the defendants as abovenoted, left with no other alternative, it is found that the plaintiff had chosen to lay the suit against the defendants in the representative capacity for obtaining the reliefs prayed for. As against the order permitting the plaintiffs to sue the suit in the representative capacity, no challenge has been made by the defendants in any manner known to law. 13. The main contention put forth by the defendants is that the suit laid by the plaintiff is not maintainable in the light of the section 65 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971. However as rightly determined by the Courts below section 65 of the abovesaid act does not have any application to the present case. The plaintiff by way of this suit is not invoking the jurisdiction of the Civil court for deciding the matters which the Government or the prescribed authority under the abovesaid Act are enjoined to do or determine and on the other hand after the allotment of the tenements to the allottees, inasmuch as, the defendants without any authority had encroached into the common space meant for the common usage of the allottees, in such view of the matter, it is found that the plaintiff had been necessitated to lay the suit against the defendants. Furthermore as determined by the Courts below, the plaintiff by way of this suit is not seeking for any injunction in respect of any action taken or to be taken by any authority under the abovesaid Act in pursuance of any power conferred by or under the abovesaid Act. Furthermore as determined by the Courts below, the plaintiff by way of this suit is not seeking for any injunction in respect of any action taken or to be taken by any authority under the abovesaid Act in pursuance of any power conferred by or under the abovesaid Act. The present suit has been laid by the plaintiff only to stop the encroachment committed by the defendants in the open space meant for the common usage of the allottees and to remove the encroachments put up by the defendants in the common space so as to enable the plaintiff and other allottees to use the tenements allotted to them freely without any inconvenience or hindrance. In the light of the above position, it is found that, as correctly determined by the Courts below, section 65 of the abovesaid Act does not have any applicability to the present case and on that footing the defendants cannot be allowed to putforth the contention that the plaintiff's suit is not maintainable. 14. The defendants' counsel during the course of arguments has also putforth that the plaintiff's present suit is not maintainable inasmuch as the plaintiff has not obtained the previous permission of the prescribed authority for instituting the lis as provided under section 29 of the abovesaid Act. However, the present suit is not laid by the plaintiff for instituting any proceedings for the eviction of the occupant of the building or land and in such view of the matter, as above noted, when the present suit has been laid by the plaintiff only to remove the encroachment committed by the defendants in the common space without entitlement, in such view of the matter, section 29 of the abovesaid Act also would have no applicability to the present case and on that score the defendants cannot be allowed to contend that the plaintiff's suit is not maintainable. 15. The argument has been put forth by the defendants that the Slum Clearance Board has passed the resolution for permitting the additional construction put up by the defendants by collecting necessary fees with reference to the same and accordingly it is contended that they had not committed encroachment as such. 15. The argument has been put forth by the defendants that the Slum Clearance Board has passed the resolution for permitting the additional construction put up by the defendants by collecting necessary fees with reference to the same and accordingly it is contended that they had not committed encroachment as such. However there is no material on the part of the defendants that with reference to the encroachments committed by them in the open space, the same had been recognized by the Tamil Nadu Slum Clearance Board and the payments had been collected from the defendants with reference to the same by the Board. When as above noted, the defendants are not entitled to put up any construction whatsoever, in the common space earmarked for the common enjoyment of all the allottees and when the plaintiff has established by placing acceptable and reliable materials, as found by the Courts below, that the defendants had put up the constructions in the common space and thereby hinder the free ingress and engross of the plaintiff and other allottees to the respective tenements and the defendants are not lawfully permitted to put up such constructions in the common space and they should enjoy the same only in common with the other allottees, in such view of the matter, the contention putforth by the defendants that their additional constructions put up in the area had been regularized by the Tamil Nadu Slum Clearance by collecting necessary payments, without any proof or material with reference to the same, does not merit any acceptance. 16. The argument has been putforth that the plaintiff's suit is not maintainable without adding the Tamil Nadu Slum Clearance Board as a party to the lis. 16. The argument has been putforth that the plaintiff's suit is not maintainable without adding the Tamil Nadu Slum Clearance Board as a party to the lis. However, when the plaintiff is seeking the reliefs as against the defendants qua the encroachment committed by them in the common space earmarked for the common usage of all the allottees including the plaintiff and as abovenoted, the Tamil Nadu Slum Clearance Board itself had directed that the common space should not be encroached into by the allottees by putting up temporary or permanent construction and they should be enjoyed in common, in such view of the matter, considering the nature of the suit and the reliefs sought for, the Tamil Nadu Slum Clearance Board is not a necessary party for the lis and therefore the abovesaid argument put forth by the defendants for resisting the plaintiff's suit is rejected. 17. The defendants knowing fully well that they have no authority to put up the constructions in the common space and unable to sustain that the said constructions had the approval or permission of the Tamil Nadu Slum Clearance Board or the other agencies of the Government accordingly raised the plea of adverse possession for justifying their encroachment made by them in the common area. However, with reference to the abovesaid plea of adverse possession, no acceptable and reliable material has been projected by the defendants for holding that they had been in the possession and enjoyment of the common space by encroaching into the same for more than the prescribed period openly, continuously, and uninterruptedly and by exhibiting the Animus possidendi to the knowledge of one and all including the plaintiff and other co-allottees and in such view of the matter, the abovesaid plea of adverse title projected by the defendants has been rightly rejected by the Courts below and no interference is called for with reference to the same. 18. The counsel for the respondent in support of his contentions placed reliance upon the decision of this Court dated 14.03.2014 in W.P.No.5 of 2013 [A.Suseela Vs. The Chairman-cum-Managing Director, Tamil Nadu Slum Clearance Board, Chennai and another] The principles of law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand. 19. The counsel for the respondent in support of his contentions placed reliance upon the decision of this Court dated 14.03.2014 in W.P.No.5 of 2013 [A.Suseela Vs. The Chairman-cum-Managing Director, Tamil Nadu Slum Clearance Board, Chennai and another] The principles of law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand. 19. In the light of the above discussions, it is found that the Courts below had rightly analyzed the materials placed on record both orally and documentary in the correct perceptive and determined the pros and cons of the same, both factual-wise and legal-wise and rightly held that the plaintiff is entitled to seek and obtain the reliefs prayed for. The judgment and decree of the Courts below are not shown to be suffering from any perversity or not shown to be illogical or irrational. Therefore the judgment and decree of the Courts below do not warrant interference. The substantial questions of law formulated in the second appeal are accordingly answered against the defendants and in favour of the plaintiff. 20. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.