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2022 DIGILAW 482 (MAD)

P. Chinnadurai v. T. Subbuthai

2022-02-24

R.VIJAYAKUMAR

body2022
JUDGMENT : R. VIJAYAKUMAR, J. Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree, dated 26.02.2021 passed in A.S. No. 236 of 2017 on the file of the Sub Court, Thiruchendur reversing the judgment and decree, dated 23.01.2015 passed in O.S. No. 87 of 2012 on the file of the District Munsif Court, Srivaikundam. 1. The plaintiff is the appellant herein. 2. The plaintiff filed O.S. No. 87 of 2012 before the District Munsif Court, Srivaikundam, for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule properties. The suit was decreed by the trial Court. The defendant filed A.S. No. 236 of 2017 before the Sub Court, Thiruchendur. The learned Subordinate Judge was pleased to allow the appeal and dismiss the suit. As against the same, the plaintiff has filed the above Second Appeal. 3. The plaintiff has contended that the suit schedule properties originally belonged to his father Pitchandi and he died intestate. After his death, the property devolved upon the plaintiff and his sister Deivakani. His sister Deivakani was married off with jewels and other materials and hence she has given up her right in the suit schedule properties. Hence, the plaintiff is the absolute owner of the suit schedule properties. According to the plaintiff, the defendant's property is located on the Western side. The plaintiff had applied for building plan permission under Exhibit A3 on 02.06.2000 for the construction of a compound wall on the Northern side of his property and he had completed the said construction. According to the plaintiff, the houses of both the plaintiff and the defendant are facing Northwards. The plaintiff has further contended that the husband of the defendant had disturbed the possession of the plaintiff in the year 2007. Hence, the plaintiff issued a legal notice under Exhibit A6 on 09.05.2008. For the said legal notice, the defendant's husband sent a reply notice on 26.05.2008 under Exhibit A7. As per the said reply notice, the defendant has alleged that the plaintiff has encroached upon 2 feet into the property of the defendant and has put up a compound wall. Thereafter on 10.06.2012, when the defendant attempted to interfere with the possession of the property, the plaintiff is constrained to file the present suit. 4. As per the said reply notice, the defendant has alleged that the plaintiff has encroached upon 2 feet into the property of the defendant and has put up a compound wall. Thereafter on 10.06.2012, when the defendant attempted to interfere with the possession of the property, the plaintiff is constrained to file the present suit. 4. The defendant filed a written statement contending that the plaintiff's house is located on the Western side and the defendant's house is located on the Eastern side and both the houses are facing Northwards. According to the defendant, the plaintiff has encroached upon the defendant's property for an extent of 2½ feet on the Western side of the defendant's property. The defendant further contended that the plaintiff had encroached upon 2 feet into the defendant's property and constructed a North-South Wall in the year 2008. Though a reply notice was sent by her husband under Exhibit A7, for removal of the same, so far the defendant has not removed the said North-South Wall. Hence, the contentions of the plaintiff about the disturbance of his possession are not factually correct. 5. The trial Court relied upon the deposition of DW-1 to arrive at a finding that the defendant has admitted the title of the plaintiff with regard to the house property and the dispute is only relating to the vacant site on the Eastern side of the plaintiff's property. The defendant has also admitted in her cross-examination that the plaintiff has constructed a compound wall after obtaining permission from the Panchayat. The defendant had also deposed that they have also put up a compound wall on their Western side in the year 1999. Based upon the deposition of DW-1, the trial Court arrived at a finding that there is a compound wall separating the plaintiff and the defendant's property and the defendant is making a claim of 2½ feet beyond the compound wall into the plaintiff's property. Based upon the said findings, the trial Court decreed the suit as prayed for. 6. The First Appellate Court relied upon the Commissioner's report to arrive at a conclusion that the plaintiff has encroached into the 2 feet lane of the defendant's property and rejected the prayer for permanent injunction on the ground that the plaintiff has not come to Court with clean hands. As against the same, the present Second Appeal has been filed. 7. As against the same, the present Second Appeal has been filed. 7. The Second Appeal was admitted on the following substantial questions of law: “(a) Whether the First Appellate Court is correct in holding that the Plaintiff/Appellant herein encroached 2 feet on the eastern side of S. No. 736/27 on the basis of Exhibits C1 to C3 is correct, when the Commissioner's report only can culled out the lie and location of the property and not the encroachment? (b) Whether the First Appellate Court is correct in reversing the judgment and decree of the trial Court, more particularly by overlooking the admissions made by DW-1? (c) Whether the First Appellate Court is correct in the approach of marking additional evidence of Exhibits B7 to B12 without following Order 41, Rule 28 of the Civil Procedure Code, more particularly when the Plaintiff endorsed no objection only for receiving documents and it is well settled law that receiving documents and marking the same is two different stage? (d) When there is no counter claim by the Respondent/Defendant for removing the alleged encroachment made by this Appellant/Plaintiff, whether the First Appellate Court is correct in reversing the judgment and decree of the trial Court by analyzing the case projected by the Respondent/Defendant as center point of controversy?” 8. Though the respondent has been served, the respondent has neither appeared in person nor through counsel. 9. The learned Counsel for the appellant contended that the First Appellate Court has erroneously come to a conclusion that the North-South compound Wall of the plaintiff has been constructed only in the year 2012. He pointed out that under Exhibit A6, the plaintiff issued a legal notice not to disturb his possession over the vacant Eastern side of his property. For the said notice, the defendant's husband had issued a reply notice under Exhibit A7 contending that the plaintiff has already constructed a North- South compound wall on his Eastern side, thereby, encroaching 2 feet into the property of the defendant. Hence, it is clear that the North-South compound wall on the Eastern side of the plaintiff's property was constructed way back in the year 2008. Though the defendant has contended that they would initiate separate action for removal of the compound wall in the written statement, no such legal proceedings were initiated. 10. Hence, it is clear that the North-South compound wall on the Eastern side of the plaintiff's property was constructed way back in the year 2008. Though the defendant has contended that they would initiate separate action for removal of the compound wall in the written statement, no such legal proceedings were initiated. 10. The learned Counsel for the appellant further contended that the defendant is now making a claim of 2 feet beyond the North-South compound wall into the property of the plaintiff. He further contended that even assuming that the compound wall has been constructed into the property of the defendant, the defendant should have initiate legal action within a period of 3 years from the date of said construction. No such legal action has been initiated by the defendants. That apart, the period of limitation for seeking recovery of possession of the property has also expired, when the same is calculated from the year 2008 onwards. Hence, viewed from any angle, the defendant did not have any right beyond North- South compound wall. In fact, it is not the contention of the defendant that the windows on their western wall have been obstructed by the construction of the compound wall. 11. The learned Counsel for the appellant further contended that the East-West compound wall on the Northern side of the property was constructed in the year 2005, after obtaining permission from the local authority under Exhibit A3. The said compound wall has been constructed touching the Western wall of the defendant's house. Hence, even in the year 2000, the claim of the defendant to enter into the plaintiff's property was disputed and a compound wall was constructed. That apart, the North-South compound wall was constructed in the year 2008 inside the plaintiff's property. Though the defendant claims 2 feet on the west of the said compound wall, he has not initiated any action whatsoever. 12. The learned Counsel for the appellant further contended that the First Appellate Court without considering the title and possession of the plaintiff has erroneously gone into the issue of encroachment of the plaintiff into the defendant's property, when the defendant has neither raised a counter claim nor filed an independent suit claiming the said 2 feet and alleged encroachment by the plaintiff. Hence, he prayed for allowing the Second Appeal. 13. I have carefully considered the submission on the side of the appellant. Hence, he prayed for allowing the Second Appeal. 13. I have carefully considered the submission on the side of the appellant. 14. It is not in dispute that the plaintiff's property is located on the Western side and the defendant's property is located on the Eastern side. Both the properties are facing the road on the Northern side. The plaintiff has obtained building plan approval in the year 2000 for the construction of a compound wall, abutting the road on the Northern side. The said wall was constructed touching the Western wall of the defendant's house property. The said application for approval was also attested by the husband of the defendant. Hence, the plaintiff's action of stopping any ingress into his property was not objected to by the defendant at that point of time. 15. In the year 2008, the plaintiff has chosen to construct a compound wall between his property and the defendant's property. The said compound wall is in the North-South side direction touching upon the Western wall of the defendant. After construction of the said compound wall, there was some disturbance from the defendant and hence, the plaintiff issued a notice under Exhibit A6. In the reply notice issued under Exhibit A7, the defendant's husband has specifically claimed that the plaintiff has encroached into the property of the defendant for an extent of 2½ feet. According to the defendant, she had 2½ feet on the Western side of her property in order to carry out repair and maintenance of their Western wall. Though the construction was completed in the year 2000 and the defendant objected to the said construction, they did not initiate any legal action either for removal of the compound wall or for recovery of possession of the alleged 2 feet on the Western side of the compound wall. 16. The defendant in her written statement has categorically claimed that she will initiate separate action for removal of the encroachment. However no such action was initiated pending suit and it is clear that the period for claiming mandatory injunction has been barred by limitation. The period for recovery of possession of the alleged encroachment has also expired. 16. The defendant in her written statement has categorically claimed that she will initiate separate action for removal of the encroachment. However no such action was initiated pending suit and it is clear that the period for claiming mandatory injunction has been barred by limitation. The period for recovery of possession of the alleged encroachment has also expired. Hence, the First Appellate Court was not right in going into the question, whether the plaintiff has encroached over the defendant's property, when the defendant has neither filed a counter claim nor filed an independent suit with such a prayer. 17. In view of the above said discussion, the substantial questions of law are answered as follows: “(i) The First Appellate Court had erred in holding that the plaintiff has encroached 2 feet on the Eastern side of Survey No. 736/27 for prayer for removal of the same. (ii) The first defendant has categorically admitted that she is not making any claim beyond the wall of the plaintiff. Hence, the First Appellate Court had erred in over-looking the deposition of DW-1. (iii) The First Appellate Court has also erred in receiving Exhibits B7 to B12 as additional documents without following Order 41, Rule 28. The consent is only for receiving the documents and the Court should follow the procedure contemplated under Order 41, Rule 28 for making the documents. (iv) The First Appellate Court is erred in arriving at a finding that both the plaintiff and the defendant should maintain the common wall. The finding of the First Appellate Court is perverse because there is no dispute in the present suit with regard to any common wall.” 18. In view of the above said discussion, the judgment and decree of the First Appellate Court is set aside. The judgment and decree of the trial Court is restored. Therefore, the Second Appeal stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.