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2019 DIGILAW 2039 (MAD)

Sethuramalingam v. Mariappa Konar

2019-08-06

R.PONGIAPPAN

body2019
JUDGMENT : Aggrieved over the concurrent findings made in O.S.No.179 of 1996 on the file of the learned District Munsif, Kovilpatti and in A.S.No.239 of 1998 on the file of the learned Subordinate Judge, Kovilpatti, the appellant, who is the defendant in the suit filed this second appeal. 2. Before the trial Court, the plaintiffs, namely, respondents 1 to 3 herein, filed the suit as against the defendant/appellant herein, seeking the following reliefs: (i) for declaration, declaring that the suit second schedule property is the absolute property of the plaintiff; (ii) to grant injunction, restraining the defendant from interfering with their enjoyment of the suit second schedule property; and, (iii) to grant mandatory injunction, directing the defendant to remove the construction made in the second item of the suit property. 3. The learned District Munsif, Kovilpatti, by Judgment and Decree dated 12.08.1997, held that the plaintiffs have proved their cases and ultimately, granted a decree in favour of the plaintiffs as prayed for. 4. Aggrieved over the said findings, the appellant herein filed an appeal in A.S.No.239 of 1998 before the learned Subordinate Judge, Kovilpatti. The learned Subordinate Judge, Kovilpatti, in its Judgment dated 04.02.1999, confirmed the findings arrived at by the learned District Munsif, Kovilpatti and dismissed the appeal in entirety. 5. Feeling aggrieved over the same, the appellant/defendant is before this Court with this second appeal. 6. For the sake of convenience, the parties are referred to as, as described before this Court. 7. The averments made in the plaint, in short, are as follows: (i) In earlier, on 20.06.1919, the suit property was purchased by Arunachala Konar, who is the paternal grandfather of the first plaintiff. The said Arunachala Konar died, after leaving one Mahalinga Konar and Karuppa Konar as his legal heirs. Thereafter, the said Karuppa Konar died in the year 1965, after leaving the second plaintiff as his legal heir. Subsequently, in the year 1969, the said Mahalinga Konar also died after leaving the first and third plaintiffs as his legal heirs. (ii) The plaintiffs' house is situated on the northern side of a vacant site of one Madasamy Konar and a pathway. In the suit first item of the property, the plaintiffs, by putting up the waste materials, enjoyed the same. The first item of the property is a vacant site. (ii) The plaintiffs' house is situated on the northern side of a vacant site of one Madasamy Konar and a pathway. In the suit first item of the property, the plaintiffs, by putting up the waste materials, enjoyed the same. The first item of the property is a vacant site. By taking advantage of the fact that the plaintiffs are residing in outstation, the defendant, on 15.05.1996, encroached the property measuring to an extent of 12 feet on the southern side of the first item of property and constructed a wall. Even after complaining the same before the Police, the defendant did not obey the instruction given by the police officer. Hence, the suit. 8. The averments made in the written statement, in short, are as follows: The plan appended with the plaint is not having any correct measurement. On the eastern side of the first item of the property, there is no pathway as alleged by the plaintiffs. The said Arunachala Konar was not having any absolute right in the suit first item of the property. Without mentioning the measurement in respect of the land, the suit filed by the plaintiffs is not maintainable. It is not correct to say that the first schedule property is a vacant land. It is not correct to say that the defendant dug a pit in the B schedule property and constructed a house. The report and plan filed by the Advocate Commissioner proved that the alleged wall was constructed in three different stages. At the time of filing the suit, the construction made by the defendant was entirely completed. The land pertaining to the defendant was purchased by him with due consideration. In the year 1968 itself, the defendant constructed the wall and in the year 1991, the said wall was raised by further five feet. Therefore, the relief prayed by the plaintiffs is barred by limitation. Hence, the suit is liable for dismissal. 9. Based on the above pleadings, the learned District Munsif, Kovilpatti, framed necessary issues and tried the suit. 10. Before the trial Court, on the side of the plaintiffs, two witnesses were examined as P.W.1 and P.W.2 and three documents were marked as Exs.A1 to A3. On the side of the defendant, the defendant himself examined as D.W.1 and produced two documents as Exs.B1 and B2. 10. Before the trial Court, on the side of the plaintiffs, two witnesses were examined as P.W.1 and P.W.2 and three documents were marked as Exs.A1 to A3. On the side of the defendant, the defendant himself examined as D.W.1 and produced two documents as Exs.B1 and B2. The report and plan filed by the Advocate commissioner were marked as Exs.C1 to C4. 11. Having considered all the materials placed before the Court, the learned District Munsif, Kovilpatti, came to a conclusion that the plaintiffs have proved their cases and ultimately, granted a decree in favour of the plaintiffs. 12. In the appeal filed by the defendant, the same was confirmed by the First Appellate Court. Aggrieved over the said concurrent findings, the appellant/defendant is before this Court with this second appeal. 13. At the time of admitting the Second Appeal, this Court formulated the following substantial questions of law. “(i) Whether the Courts below are wrong in not applying the principles of acquiscence? (ii) Whether the Courts below are wrong in not taking into consideration the measurement given in the defendant/appellant's documents in fixing his property?” Substantial Question of Law Nos: I and II 14. Both the Courts below have concluded the suit by holding that the defendant encroached the plaintiffs' property to an extent of 1 feet and 8 inches. The said conclusion is mainly based on the averments made in the plan and report filed by the Advocate Commissioner, which were marked before the trial Court as Exs.C1 to C4. Apart from the said document, during the time of trial, the plaintiffs produced a title deed dated 20.06.1990, i.e. Ex.A1, which stands in the name of Arunachala Konar, who is the paternal grandfather of the plaintiffs. With respect to the said document, P.W.1 has stated that Ex.A1 is the earliest document for proving the fact that the 'A' schedule property was purchased by his grandfather of the plaintiff. According to the plaintiffs, the property, measuring to an extent of 24.3/4 feet in south-north and 13.3/4 in east-west, was purchased by the paternal grandfather of the plaintiffs. 15. The learned Advocate Commissioner, after measuring the suit property, has stated in his report that the said measurement is available in the suit property. He specifically stated that the defendant has encroached the property measuring to an extent of 1 feet and 8 inches. 15. The learned Advocate Commissioner, after measuring the suit property, has stated in his report that the said measurement is available in the suit property. He specifically stated that the defendant has encroached the property measuring to an extent of 1 feet and 8 inches. The First Appellate Court as well as the trial Court have clearly held that since the defendant has not raised any objection in respect of the report filed by the Advocate Commissioner, it has been concluded that the report filed by the Advocate Commissioner is a true one. 16. Of course, before the trial Court, only after filing the Commissioner's report, the defendant had filed his written statement. Further, he has not filed any objection to the report filed by the Advocate Commissioner and he has not taken any steps to examine the Advocate Commissioner as a witness. Even though the suit property was not measured by utilizing the services of the surveyor, it is necessary to see, whether there is any objection on the side of the defendant or not. If there is no objection on the side of the defendant, it can be presumed that the report filed by the Advocate Commissioner is a true one. As already stated above, by relying upon the report submitted by the Advocate Commisioner, the Courts below have come to the conclusion that the defendant had encroached the suit property, measuring an extent of 1 feet and 8 inches. Hence, I am of the considered opinion that the said findings arrived at by the Courts below are hold good and therefore, no interference is necessary in this aspect. 17. The learned counsel appearing for the appellant would contend that since the wall constructed by the defendant in the encroached portion is actually constructed in the year 1968. So, the principle of acquisance is necessary for the disposal of this second appeal. 18. In this regard, the learned counsel appearing for the respondents would contend that the report filed by the Advocate Commissioner discloses the fact that the wall under dispute is constructed recently. So, the question of acquisance does not arise for disposal of this appeal. 19. It is true that this Court, under Section 40 of the Specific Relief Act, is having the power to award damages for the newly constructed area. So, the question of acquisance does not arise for disposal of this appeal. 19. It is true that this Court, under Section 40 of the Specific Relief Act, is having the power to award damages for the newly constructed area. In this aspect, the learned counsel appearing for the appellant relied upon the Judgments of this Court reported in AIR 1981 Madras 220 (R.S.Muthuswami Gounder vs. A.Annamalai and others), AIR 1977 Madras 342 (S.Palanivelu vs. K.Veradammal), AIR 1936 Madras 687 (Nidamarti Jaladurga Prasadarayudu vs. Ladooram Sowcar and another). 20. In all cases cited supra, this Court held that instead of giving the relief of mandatory injunction, damages can be awarded which entails no inconvenience to either parties. However, applying the said principles with the case on our hand, the plaintiffs herein have not claimed the relief of damages. At this juncture, it is relevant to see the provisions of Section 40(2) of the Specific Relief Act, which reads as follows: “40(2). No relief for damages shall be granted under this Section unless the plaintiff has claimed such relief in his plaint.” So, if the relief prayed by the plaintiffs is allowed in their favour, the same is against the provisions of Section 40(2) of the Specific Relief Act. 21. So far as the principle of acquisance is concerned, two things are required to raise such an equity; first that the person expending the money supposes himself to be building on his own land; and, secondly, that real owner at the time of expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. In fact, if a stranger builds on may land knowing it to be mine, there is no principle of equity which would prevent any claiming the land with the benefit of all the expenditure made on it. 22. In this case, the Courts below have held that the said wall is constructed by the defendant recently and thereby, the question of awarding compensation does not arise in this aspect. It is to be noted that the Advocate Commissioner has stated in his report that the said wall was constructed in three stages. Further, it is very clear that the report filed by the Advocate Commissioner proves the fact that the said wall was not in finishing stage. It is to be noted that the Advocate Commissioner has stated in his report that the said wall was constructed in three stages. Further, it is very clear that the report filed by the Advocate Commissioner proves the fact that the said wall was not in finishing stage. Even though it was claimed by the defendant that the first part of the wall was constructed in the year 1960, no relevant document has been produced on the side of the defendant to prove the same. Even in Ex.B1, the extent of wall has also not been mentioned. In the said circumstances, for the mistake committed by the defendant, damages cannot be ordered. Accordingly, substantial question Nos.1 and 2 is answered in favour of respondent. 23. In the result, the Second Appeal is dismissed, confirming the Judgment and Decree dated 04.02.1999 made in A.S.No.239 of 1998 on the file of the learned Subordinate Judge, Kovilpatti. No costs.