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2019 DIGILAW 141 (MAD)

Sivakumar v. G. Chandrasekaran

2019-01-10

R.THARANI

body2019
JUDGMENT : Heard, Mr.V.Meenakshi Sundaram, learned senior counsel for Mr.R.Murugan, learned counsel appearing for the appellant and Mr.S.Xavier Rajini, learned counsel appearing for the respondents. 2. This appeal is filed against the Judgment and Decree passed in A.S.No.14 of 2014 and A.S.No.24 of 2014 dated 06.11.2017 on the file of the learned II Additional Subordinate Judge, Nagercoil, Kanyakumari District modifying the Judgment and Decree passed in O.S.No.8 of 2011 dated 16.12.2013 on the file of the learned I Additional District Munsif, Nagercoil, Kanyakumari District. 3. The appellant herein is the defendant and the respondents herein are the plaintiffs in the suit. The respondents herein have filed a suit in O.S.No.8 of 2011 before the learned I Additional District Munsif, Nagercoil seeking for a prayer of permanent injunction restraining the defendant from dumping stones and sands over the plaint 'B' property in order to raise the level and for a mandatory injunction directing the defendant to remove the stones and sands from the southern most portion of the plaint 'B' schedule property. The learned I Additional District Munsif, Nagercoil has partly decreed the suit with condition that the plaintiffs shall approach the Municipality and to take steps to level or form road with provisions for drainage and water channel in the plaint 'B' schedule pathway individually or jointly within six months from the date of decree. 4. Against the Judgment and Decree, the appellant herein has filed an appeal in A.S.No.14 of 2014 and the defendant has filed an appeal in A.S.No.24 of 2014 before the II Additional Sub Judge, Nagercoil. The learned Sub Judge, Nagercoil has dismissed the appeal in A.S.No.14 of 2014 and has allowed the appeal in A.S.No.24 of 2014 by modifying the Judgment and Decree passed by the trial Court. The learned Sub Judge has granted the relief of permanent injunction in B schedule property and also granted a relief of mandatory injunction to remove sands and stones from the southern most portion of the plaint B schedule property. Aggrieved by this order, the appellant herein has filed the second appeal. 5. The case of the plaintiffs/respondents is that the plaintiffs are the absolute owner of A schedule property and the plaint B schedule property is a common pathway. Aggrieved by this order, the appellant herein has filed the second appeal. 5. The case of the plaintiffs/respondents is that the plaintiffs are the absolute owner of A schedule property and the plaint B schedule property is a common pathway. Originally the plaint A and B schedule properties and more area belonged to one Narayanan Nair who got 65 cents of land in old survey No.3282 co-related to New survey No. 761/2 of Vadasery Village. He had divided the property into western portion and eastern portion and the western portion was again divided into three plots. Out of the three plots, one plot with an extent of 7.810 cents of land and right of pathway in 695 sq. links were sold out to one Geetha on 03.11.1983. 6. The owner had set apart the plaint 'B' schedule property as a pathway for common enjoyment. Geetha has sold her right over the schedule properties to one Indira Devi on 14.09.1984. The said Indira Devi in turn has sold away her right to the plaintiffs' mother and they used the path way as a common path way. The plaintiff's mother constructed a house in the 'A' schedule property. The building was numbered as No.6/84B1 of Peruvilai Panchayat. The plaintiffs' mother has executed a sale deed on 17.09.2004 in favour of the second plaintiff in respect of northern side vacant portion of the plaint A schedule property. She has executed a settlement deed on 04.11.2004 in favour of the plaintiffs. After the settlement deed, the plaintiffs and their brothers are enjoying the house as co-owners. 7. The defendant has purchased the plot on the eastern side in the 65 cents and he has started construction work. He was also using B schedule property as a path way. On 22.12.2010, the defendant has attempted to raise the level of plaint B schedule property to a height of 4 feet with sand and stones and that was prevented by the plaintiffs. On 27.12.2010, the defendants has brought the stones and sands dumping the same in the southern most portion of the property to a height of 7 feet. If the level of the 'B' schedule property is raised, the ground of the plaint 'B' schedule property will be higher than that of the A schedule property. On 27.12.2010, the defendants has brought the stones and sands dumping the same in the southern most portion of the property to a height of 7 feet. If the level of the 'B' schedule property is raised, the ground of the plaint 'B' schedule property will be higher than that of the A schedule property. The rain water and drainage water of B schedule property and neighbouring house waste water and drainage water of the B schedule property will enter into A schedule property which will cause great hardship to the plaintiffs and it was prayed that the injunction restraining the defendant not to raise the level of B schedule property is to be granted and also a mandatory injunction to remove the sand and stones dumped in the southern most portion of the of B schedule property. 8. The case of the defendant is that no such path way was provided by the original owner Narayanan Nair and the vendor of the plaintiffs' Indira Devi never used the schedule property as a path way. The plaintiffs' vendor has constructed the house too low from the main road to a depth of more than 3 feet. During rainy season, the plaintiffs house ground floor will be immersed to a height of more than 3 feet and they have to shift their household articles to the upstairs and the rain water used to stagnate in the ground floor for months together. Due to stagnation of water, there used to be bad odour, the plaintiffs never allowed the defendant and others to level the path way and to clean the path way because the path way was not used by them. It is stated that the plaintiffs are having other path way and the plaintiffs are obstructing the defendant from enjoying the path way and that the other persons who are using the path way were not impleaded as necessary parties. If the path way was levelled and maintained properly, the plaintiffs will also be benefited by that. It is prayed that the suit is to be dismissed. 9. If the path way was levelled and maintained properly, the plaintiffs will also be benefited by that. It is prayed that the suit is to be dismissed. 9. This Court by order dated 07.08.2018, has admitted the second appeal and has framed the following substantial questions of law, which are as follows: “(a) Whether the suit for permanent injunction and mandatory injunction in O.S.No.8 of 2011 on the file of I Additional District Munsif Court, Nagercoil, Kanyakumari District in respect of plaint B schedule common pathway filed by a co-owner against another co-owner is maintainable? (b) Whether the suit for permanent injunction and mandatory injunction in O.S.No.8 of 2011 on the file of I Additional District Munsif Court, Nagercoil, Kanyakumari District in respect of plaint 'B' schedule common pathway is maintainable without impleading other co-owners using the pathway?” Question No.1: 10. On the side of the appellant, it is stated that permanent injunction and mandatory injunction cannot be granted against a co-owner. It is stated that the common path way is not flat but it is only a slope and that the rain water and drainage water will enter the property of the plaintiffs and that the area was developed by a common vendor and there are so many houses using the common path way in the B schedule property and that the plaintiffs and the defendant are co-owners and that if an underground drainage system was erected, the problem will be settled and that the respondents are not ready to approach the municipality for construction of a drainage system and that the plaintiffs can reach their house through Perumal Road and that there is no necessity for the plaintiffs to use B schedule property and that the plaintiffs has not used the path way for a long time and that the plaintiffs is having his main gate on the northern side and he is having only a small gate in the B schedule property and that Perumal road is higher than the house level and their house is 3 ½ feet lower than the road by nature. It is stated that instead of simplifying the problem by approaching the municipality for construction of drainage and road facilities, the plaintiffs have filed the suit. It is stated that instead of simplifying the problem by approaching the municipality for construction of drainage and road facilities, the plaintiffs have filed the suit. It is stated that the plaintiffs and the defendant are co-owners of the B schedule property and that an injunction order against one co-owner cannot be granted. 11. On the side of the respondents, it is stated that the defendant have dumped sands and stones to a height of 7 feet along the southern most part of the property and that due these activities, entire water goes into the house of the plaintiffs and that right of the plaintiffs over the B schedule property was questioned by the defendant. In the written statement and now, he has stated that an injunction order cannot be given against the co-owner and that the Commissioner report reveals that B schedule property is used by the other owners by erecting gates in the B schedule property and that the Commissioner report reveals that there is stagnation of rain water in the A schedule property and that the Commissioner also has mentioned the dumping of stones and sands in the B schedule property. It is stated that all the co-owners were affected since the defendant has raised his house above the Thar Road. 3 ½ feet was raised in the B schedule property and that there is no chance for erecting any drainage system crossing the thar Road. It is further stated that even in the cross examination of D.W.1, D.W.1 has admitted that B schedule property is 3 ½ feet lower than the Road and that the defendant has raised his house 3 ½ feet higher than the B schedule lane and that he tried to raise the B schedule lane and that the defendant has no right over the B schedule property and that in Ex.B1, the right of the defendant over the path way is not stated and that he is having only a right of esment. 12. On the side of the respondents, it is stated that the plaintiffs have sold out the northern portion of his property to one Hari and the southern portion was settled to the children of the respondents and there is no possibility of access for the respondents except through the eastern side gate way. 12. On the side of the respondents, it is stated that the plaintiffs have sold out the northern portion of his property to one Hari and the southern portion was settled to the children of the respondents and there is no possibility of access for the respondents except through the eastern side gate way. It is stated that the defendant actually has no right over the B schedule property and both the lower Courts has passed concurrent findings regarding the removal of sands and stones which were dumped in B schedule property. 13.The learned counsel appearing for the respondents relied on the Judgment passed by this Court in the case of S.Govindan v. S.Gopala Aiyengar reported in 1998 3 L.W. 400, which reads as follows : “Suit by one co-owner who is injured by the conduct of another co-owner-plea by defendant of unreasonable delay on the part of plaintiff, in approaching the Court, rejected-Objection that there is no prayer for declaration and hence, mandatory injunction cannot be granted, rejected” 14. A perusal of the records reveals that both the lower Courts have given concurrent findings and have granted the relief of mandatory injunction in favour of respondents herein. The appellant herein has admitted that the respondents are the co-owner. The contention of the appellant is that the co-owner cannot file a suit against an other co-owner for the prayer of injunction. One co-owner cannot prevent the other from enjoying the common property. If one co-owner prevents the other from enjoying the common property the affected co-owner can certainly approach the Court for a relief. A co-owner can enjoy his right over a common property without hindrance to the other co-owner. The plaintiff has not approached the Court to prevent the right of a co-owner but has approach the Court to retain his right. Hence, this question is decided in favour of the respondents. Question No.2: 15. On the side of the appellant, it is stated that the suit filed by the respondent is not valid as the respondents failed to implead the other co-owners. 16. On the side of the appellant, it is stated that the lower Courts have failed to frame an issue regarding the question of non jointer of necessary parties and that without the presence of other co-owners, the matter in issue cannot be decided. 16. On the side of the appellant, it is stated that the lower Courts have failed to frame an issue regarding the question of non jointer of necessary parties and that without the presence of other co-owners, the matter in issue cannot be decided. It is stated that the Commissioner report clearly reveals that there are houses along both sides of the B schedule property and that the Commissioner plan clearly reveals that the neighbours and other plot owners are also entitled to the common path way. P.W.2 has also given evidence that he is also having right over the B schedule property and that the plaintiffs and the defendant alone cannot decide anything regarding the B schedule property. 17. The learned counsel appearing for the appellant relied on the Judgment and decree passed by this Court in the case of L.Suresh and another v. Yasothammal and others, reported in 2014(2) MWN (Civil) 168, which reads as follows: “All co-sharers are necessary parties in suit for partition-Non-jointer of all legal heirs in suit for partition is fatal-plaintiff sought for partition of suit property without impleading necessary parties having interest and title over suit property-suit is bad for non-joinder of necessary parties.” 18. On the side of the respondents, it is stated that the B schedule property is a common property of all the neighbouring owners who are using the path way but only the defendant is negativing the claim of the plaintiff and only the defendant is trying to raise the level of the B schedule property thereby preventing the plaintiffs from enjoying the property. 19. On the side of the respondents, it is stated that all other co-owners are not preventing the respondents from enjoying their right of pathway and that only the appellant is dumping the soil and preventing the respondents from enjoying the property and by the act of the defendant/appellant, the respondents are not even able to open this gate. 20. The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of S.Nirmala v. Kanniammal and others, reported in 2017 (1) CTC 24 , which reads as follows : “Merely because other co-owners were not arrayed as plaintiffs, the same cannot be a ground to non-suit the plaintiff. 20. The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of S.Nirmala v. Kanniammal and others, reported in 2017 (1) CTC 24 , which reads as follows : “Merely because other co-owners were not arrayed as plaintiffs, the same cannot be a ground to non-suit the plaintiff. It is well settled that one of the co-owners can very well protect the property on behalf of other co-owners.” 21. The contention of the appellant in short is that the suit is bad for non-jointer of necessary parties. Admittedly there are other co-owners who are having right over the common path way in B schedule property. The other co-owners are not impleaded as parties in the suit. 22. The contention of the respondents is that only the appellant is raising the level of the B schedule property and only the appellant is dumping the stones and sands in the B schedule property thereby preventing the plaintiffs from enjoying the A schedule property and that the Judgment cited by the appellant are not applicable to this case and the Judgment cited is relating to a suit for partition but this suit is only an injunction suit and the person who prevents the right of other co-owners can alone be questioned and the contention of the appellant is not applicable to he facts of the present case. Hence, the second question of law raised by the appellant is unsustainable. 23. This second appeal is dismissed by confirming the order passed in A.S.No. 14 of 2014 and A.S.No. 24 of 2014 on the file of the learned II Additional Subordinate Judge, Nagercoil. No Costs. Consequently, connected miscellaneous petitions are closed.