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2022 DIGILAW 1359 (MAD)

D. Srinivasan v. S. Kannigadevii

2022-06-13

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree passed by the learned I Additional Subordinate Judge, Tiruchirapalli in A.S.No.55 of 2018, dated 06.11.2019 confirming the judgment and decree of learned Principal District Munsif, Tiruchirapalli in O.S.No.913 of 2012, dated 22.01.2018.) 1. The first defendant is the appellant herein. 2. The plaintiff had filed O.S.No.913 of 2012 before the Principal District Munsif Court, Tiruchirapalli for the relief of mandatory injunction directing the first defendant to remove the encroachment made on the 'B' Schedule property and the roof top of the temple situated in 'B' Schedule property. The plaintiff further prayed for permanent injunction restraining the defendants from any one encroaching the suit 'B' Schedule property by drawing pipeline on the floor or underneath causing hindrance to the house of the plaintiff and other co-sharers. The trial Court decreed the suit with regard to the prayer for mandatory injunction. However, dismissed the suit with regard to the prayer for permanent injunction. The first defendant filed A.S.No.55 of 2018 before the I Additional Sub Court, Tiruchirapalli. The learned Subordinate Judge was pleased to dismiss the appeal. As against the concurrent findings, the present Second Appeal has been filed by the first defendant. 3. The plaintiff has contended that the suit schedule properties and other properties were owned by her husband Saminathan and father of the first defendant and others. All the co-sharers entered into a registered partition deed on 14.12.1988 under Exhibit A10. According to the plaintiff, 'B' Schedule property was allotted to the share of the husband of the plaintiff and 'B' Schedule property was allotted to the share of the father of the first defendant. 4. The plaintiff has further contended that the 'F' Schedule property consisting of a family temple and a common lane having a width of 3 3/4 feet was retained as a common property in the said partition deed. 5. The plaintiff has further contended that the 'A' Schedule property in the present suit was the property allotted to the share of the first defendant's father. The present 'B' Schedule property is the common property allotted to all the sharers which was segregated as 'F' Schedule property in the partition deed. 5. The plaintiff has further contended that the 'A' Schedule property in the present suit was the property allotted to the share of the first defendant's father. The present 'B' Schedule property is the common property allotted to all the sharers which was segregated as 'F' Schedule property in the partition deed. The plaintiff has contended that the first defendant had encroached upon the 'B' Schedule property and he has covered the common lane hiding the view of the temple. The plaintiff has further contended that the first defendant has encroached the vacant site and made construction in the first floor. She further contended that the first defendant has put up a bore well and motor fitting in the middle of the lane and he is attempting to draw pipelines across the lane, both on the floor and underneath the floor. The plaintiff has further contended that the construction made by the first defendant is not only against the sentiments of the worshipers but also it causes hardship to other co-sharers. Hence, she prayed for mandatory injunction for removal of the encroachments in the 'B' Schedule property and for a permanent injunction in the said 'B' Schedule property. 6. The defendant filed a written statement contending that the plaintiff has also put up certain constructions in the common property in violation of the partition deed. The defendant further contended that he is exclusively entitled to the property in the 'B' Schedule. He further contended that he has put up the construction in the 'B' Schedule property, only after getting consent from all of the sharers. The defendant further contended that he had made improvements to the temple. According to the defendant, the other sharers have agreed for the defendant to put up a terrace over the lane which is also beneficial for worship in the temple. However, the defendant denied that he has made any constructions over and above the temple. 7. The trial Court after considering the oral and documentary evidence, arrived at a finding that 'F' Schedule property which consist of a family temple and a common lane which is shown as a common property in Exhibit A10 partition deed is the 'B' Schedule property in the present suit. 7. The trial Court after considering the oral and documentary evidence, arrived at a finding that 'F' Schedule property which consist of a family temple and a common lane which is shown as a common property in Exhibit A10 partition deed is the 'B' Schedule property in the present suit. The trial Court further found that in view of the admissions made by the first defendant in the deposition and the Commissioner's report, it is clear that the first defendant has encroached upon the common lane and he has put up an RCC roof. From the report of the Commissioner, the trial Court arrived at a finding that the first defendant has extended his property into the 'B' Schedule property and construct an RCC roof over and above the family temple. The trial Court further found that there is no evidence whatsoever to prove that the first defendant has made the constructions in the common property only after getting permission from the other cosharers. The trial Court has further found that any encroachment made by the first defendant in the common lane would certainly affect the right of the plaintiff and other co-sharers from entering into the family temple or the common pathway. However, the trial Court found that the action on the part of the first defendant to lay pipelines over and above the common lane or underneath the common lane can never be considered to be prejudicial to interest of the plaintiff or other co-sharers. In fact, the plaintiff has also drawn pipelines underneath the common lane. In view of the above said findings, the trial Court proceeded to grant a decree for mandatory injunction for removal of constructions made in the common lane as well as over and above the suit temple. However, the trial Court rejected the prayer for permanent injunction for not to put up any pipelines either underneath or above the common lane. 8. Though the prayer for permanent injunction was rejected by the trial Court, the plaintiff did not file any first appeal. The defendant filed first appeal challenging the granting of decree for mandatory injunction. 9. The First Appellate Court after independent appreciation of oral and documentary evidence, concurred with the findings of the trial Court. 8. Though the prayer for permanent injunction was rejected by the trial Court, the plaintiff did not file any first appeal. The defendant filed first appeal challenging the granting of decree for mandatory injunction. 9. The First Appellate Court after independent appreciation of oral and documentary evidence, concurred with the findings of the trial Court. The First Appellate Court also relied upon the deposition of the first defendant and the Commissioner's report to arrive at a finding that the first defendant has created encroachments over the family temple and has also disturbed the movement of the defendants by putting up certain constructions in the 'B' Schedule property. Based upon the said observations, the First Appellate Court dismissed the first appeal. As against the concurrent findings, the present Second Appeal has been filed. 10. The Second Appeal has been admitted on the following substantial questions of law: (i) Whether the Courts below were right in granting Decree for mandatory injunction, overlooking the fact that the plaintiff has acquiesced with the construction of the stair case and digging of borewell by the first defendant over the suit common lane? (ii) Whether the Courts below were right in granting Decree for mandatory injunction, when the plaintiff herself was shown to encroach the portion of the suit partition?" 11. The learned Counsel appearing for the first defendant/appellant had contended that the entire burden is upon the plaintiff to establish that some constructions have been put up over and above the temple. He further contended that all the constructions that have been put up above the common lane in 'B' Schedule property have been put up only after obtaining consent from the other co-sharers. The learned Counsel had further contended that the family temple was in a dilapidated condition and the other co-sharers requested him to renovate the temple. Hence, he renovated the temple and hence, the contention of the plaintiff that an RCC roof has been laid over and above the temple, extending the house of the first defendant is not factually correct. He further contended that already the first defendant had initiated proceedings as against the plaintiff for encroaching upon the common lane. Only as a counter blast to the said suit, the present suit has been filed by the plaintiff. He further contended that already the first defendant had initiated proceedings as against the plaintiff for encroaching upon the common lane. Only as a counter blast to the said suit, the present suit has been filed by the plaintiff. The learned Counsel for the appellant had further contended that when the plaintiff has already encroached over the common lane, the decree for mandatory injunction cannot be granted in favour of such a person. He further contended that the plaintiff has simply alleged that the first defendant has encroached over 'B' Schedule property without giving any specific measurements. When the constructions were admittedly put up by the first defendant in the year 2010, the present suit has been laid only in the year 2012. The decree for mandatory injunction, especially as against the co-sharer should not have been issued, when the plaintiff has been dormant for more than two years. Hence, the main contention of the learned Counsel for the first defendant/appellant is that when the plaintiff herself has made encroachments by putting up construction in the common lane, she would not be entitled to the equitable relief of mandatory injunction. Hence, he prayed for allowing the Second Appeal. 12. Per contra, the learned Counsel for the respondents had contended that the first defendant has already initiated a suit as against the defendant for the alleged encroachments made by the defendant. Any encroachment made by the plaintiff shall not give license to the first defendant to make encroachments in the suit schedule properties. He further contended that the first defendant has admitted that the present 'B' Schedule property is the 'F' Schedule property in the registered partition deed marked as Exhibit A10. When the suit temple is located in the present 'B' Schedule property which is common to all the co-sharers, the first defendant is not entitled to extend his property over and above the said temple by putting up an RCC roof. This certainly is an encroachment made by the first defendant. The contention of the defendant that he has only covered the temple with an RCC roof is absolutely false, since there is a gap between the temple roof and the RCC roof created by the first defendant. This certainly is an encroachment made by the first defendant. The contention of the defendant that he has only covered the temple with an RCC roof is absolutely false, since there is a gap between the temple roof and the RCC roof created by the first defendant. He further contended that the first defendant has made constructions in the common lane and he has also put up a stair case to reach the first floor namely, the place over and above the temple. The constructions made by the defendant have also been admitted by him in his deposition. That apart, all the constructions have been noted down by the Advocate Commissioner in his report. Further, the Courts below have concurrently found that the plea of the defendant that he has put up construction only after obtaining permission from the other co-sharer is false. When the construction is an encroachment over the common property and the construction is not after obtaining permission from the other cosharers, the decree for mandatory injunction passed by both the Courts below cannot be disturbed. Hence, he prayed for dismissal of the Second Appeal. 13. I have given an anxious consideration to the submissions made on either side. 14. There is no dispute between the parties that there was a registered partition deed among the co-sharers under Exhibit A10 on 14.12.1988. It is also not in dispute that in the said partition deed, the family temple and a lane were reserved as a common property as 'F' Schedule property. Hence, it is evident that the co-sharers would not be entitled to encroach upon or disturb the usage of the common property by the other co-sharers. 15. Even as admitted by the first defendant in his deposition, it is clear that the first defendant who has been allotted a property adjacent to the family temple, has extended his property over and above the family temple. This is also confirmed by the report of the Advocate Commissioner. Hence, it is clear that the common property has been encroached upon by the first defendant. From the Commissioner's Report, it is also clear that the first defendant has created an aerial encroachment connecting two of his properties which are located on either side of the common lane. This is also confirmed by the report of the Advocate Commissioner. Hence, it is clear that the common property has been encroached upon by the first defendant. From the Commissioner's Report, it is also clear that the first defendant has created an aerial encroachment connecting two of his properties which are located on either side of the common lane. In the common lane, the first defendant has put up a stair case to reach the first floor which extends over and above the family temple. Hence, it is clear that all these encroachments in 'B' Schedule property have been made only over the family temple and the common lane. 16. Though the defendant has pleaded that all these constructions were made only with the consent of the other co-sharers, the first defendant has neither produced any documents nor examined any one of the co-sharers to prove that such constructions were made only after getting consent from the other co-sharers. When the defendant admits that the suit 'B' Schedule property is a common property and he has put up constructions in the said property, the plaintiff would be certainly entitled to a decree for mandatory injunction. 17. The Courts below after careful analysis of the oral and documentary evidence have arrived at a finding that the first defendant has encroached upon the family property namely 'B' Schedule property. I do not find any infirmity or illegality in the decree passed by the Courts below granting mandatory injunction for removal of the said encroachments. 18. In the light of the above said discussions, both the substantial questions of law are answered as against the appellant. The judgment and decree of the Courts below are confirmed. The Second Appeal stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.