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2024 DIGILAW 603 (MAD)

Harak Chand J. Golecha v. Babulal B. Tater

2024-03-07

V.LAKSHMINARAYANAN

body2024
JUDGMENT : (Prayer: Appeal filed under Section 100 of C.P.C. against the judgement and decree dated 24.06.2011 passed by the learned VII Additional City Civil Judge, Chennai in A.S.No.27 of 2010, confirming the judgment and decree dated 24.08.2009 passed by the learned XI Assistant City Civil Judge, Chennai in O.S.No.6711 of 2007.) 1. The second appeal arises out of the judgment and decree of the court of Principal District Judge at Salem in A.S.No.54 of 2011 dated 06.09.2012 in reversing the judgment and decree of the court of Subordinate Judge at Attur in O.S.No.88 of 2004 dated 15.09.2006. 2. The appellant before me is the defendant in the suit. 3. For the sake of convenience, the parties will be referred to as per their ranks in the original suit. 4. The plaintiff cameforward with OS.No.204 of 2002 for the relief of declaration, prohibition injunction and mandatory injunction. He alleged that the defendant had encroached upon his property and had put up construction and encroachment. The plaintiff had purchased the property on 07.03.1998. The extent of the property purchased was 2270 sq. ft. The plaintiff's vendor had retained 1510 sq. ft. As per the sale deed, a passage was provided from the Dharapuram Municipality road to have access to the plaintiff's property. The extent of the property was 46 feet North-South and 7 1/2 in breadth (East-West). The defendant is none else than the neighbour of the plaintiff. Since he had put up construction on the southern compound wall of the plaintiff and on the east west to an extent of 31 1/2 feet. He was constrained to file a suit for the aforesaid relief. The defendant on receipt of summons entered appearance and pleaded that the compound wall was within the boundary line of the defendants. As per the document, the plaintiff is entitled to only 6 feet and in fact, the owner, KS who had alienated the property in favour of the defendant had retained 1 1/2 feet. Since the plea was that the plaintiff had only 6 feet and the compound wall was 7 1/2 i.e., 1 1/2 the property of the defendant, the defendant pleaded that he has got every right to repair, maintain and white wash the well. He pleaded that there is no encroachment and prayed for dismissal of the suit. 5. Since the plea was that the plaintiff had only 6 feet and the compound wall was 7 1/2 i.e., 1 1/2 the property of the defendant, the defendant pleaded that he has got every right to repair, maintain and white wash the well. He pleaded that there is no encroachment and prayed for dismissal of the suit. 5. On the basis of the above pleadings, the trial court framed the following issues: The plaintiff entered the witness box and examined one other witness, on this side. The defendant alone entered the witness box in order to substantiate his case. 6. The plaintiff filed Ex.A1 and Ex.A2 and the defendant filed only one document i.e., Ex.B1. Finding that the case requires report and plan of the Advocate Commissioner, the Commissioner was appointed for the purpose of inspecting the suit property. After inspection, he submit the plan and report i.e., Ex.C1 to Ex.C6. 7. After a detailed analysis of the merits of the case, the trial court came to the conclusion that the boundaries had been distinctly demarcated by constructing the compound wall and there is no question of encroachment by the party. Therefore, it granted the relief of declaration in favour of the plaintiff. However, it did not give a finding on the ownership of the Wall. Therefore, the relief of mandatory injunction having been denied by the learned Trial Judge, the plaintiff preferred an appeal in A.S.No.52 of 2008. It is pertinent to point out here that though the defendant could have preferred an appeal as against the declaration, he did not do so. Therefore, that portion of the decree has attained finality even before the trial court. as against the rejection of the prayer of prohibitory injunction and mandatory injunction, an appeal was filed before the lower appellate court which granted the relief of prohibitory injunction and dismissed the relief of mandatory injunction. Aggrieved by the same, the defendant is on appeal before me. As against the denial of mandatory injunction, the plaintiff had preferred cross objection in Cross Objection No.117 of 2013. 8. This Court originally ordered notice regarding admission in the matter on 12.09.2013. Ms.Jeenath Begam entered appearance on behalf of the respondents. Thereafter, after hearing both sides, the second appeal was admitted on 22.03.2022 on the following substantial questions of law: Mr. 8. This Court originally ordered notice regarding admission in the matter on 12.09.2013. Ms.Jeenath Begam entered appearance on behalf of the respondents. Thereafter, after hearing both sides, the second appeal was admitted on 22.03.2022 on the following substantial questions of law: Mr. Sridharan would submit that the lower appellate court had not assign any reason for granting the relief of prohibitory injunction and this resulted because of an improper of the oral and documentary evidence, especially the Advocate Commissioner's report. This requires me to look at Ex.B1 on the basis of which the defendant had purchased the property. Under Ex.B1, the schedule reads north by the house of the plaintiff and the east by six feet passage leading to the house of the plaintiff. Apart from that, the advocate commissioner report Ex.C1 to Ex.C6 when perused shows that the possession of the plaintiff tallies with the property that he has purchased over the property. Under Ex.C3, it is noted that the defendant has fixed PVC tubes coming from the toilet which had been constructed on the northern side of this property annexing the wall of the plaintiff as the boundary. Therefore, this makes it clear that the plaintiff is entitled to declare that based on the sale deed that had been executed under … and prohibitory injunction that had been granted does not requires any interference with. Consequently, the judgment and decree in A.S.No.52 of 2008 stands confirmed. 9. Now turning to the Cross Objection, though the court below found that the wall as well as the extent under occupation of the plaintiff is justified. It had denied the mandatory injunction on the ground that the plaintiff had not given any police complaint prior to the presentation of the plaint. It is not necessary in all cases that the party should approach the police for the relief of civil dispute. Having come to the conclusion and rightly the boundaries will prevail over the extent, the court below ought to have granted the relief of mandatory injunction directing the removal of roof which rests on the plaintiff's wall and for the pipeline that had been by the defendant on the wall. This is very obvious that if there is sewage leak from the pipeline, it would result in … of the plaintiff. It is not a business of the one neighbour to create a situation .. is into other neighbours property. This is very obvious that if there is sewage leak from the pipeline, it would result in … of the plaintiff. It is not a business of the one neighbour to create a situation .. is into other neighbours property. Only such situation, seek for mandatory injunction to ensure the nuisence. Therefore, I am of the view that the denial of mandatory injunction after having granted declaration and prohibitory injunction is not justified. Consequently, cross objection No.117of 2013 stands allowed. The denial of porition of mandatory injunction is set aside. Consequently, the suit will stand decreed as prayed for. At this stage, Mr.A.K.Sriram submitted that his client is given sufficient time, will remove the pipelines as well as the roof which rests on the plaintiff’s compound wall. The request seems reasonable. I am immediately for the purpose of execution. On instruction from his client, who is present before the court, he undertakes to remove the roof and pipeline within a period of three months from the date of receipt of a copy of this Order. The said undertaking is recorded. 10. The respondent in the.. is granted three months time to ensure the encroachment made by him on the wall pipeline of the plaintiff are removed. In case, it is not done within a period of three months, the plaintiff will be at liberty to move an execution proceeding to ensure that the encroachments are removed. In the result, of the above discussion: 11. S.A.No.823 of 2013 is dismissed. 12. Cross Objection No.117 of 2013 stands allowed. 13. The judgment and decree of the court of Subordiante Judge, Dharapuram in A.S.No.52 of 2008 in confirming the judgment and decree of the learned District Munsif at Dharapuram in O.S.no.204 of 2002 dated 21.10.2008 insofar as had granted the relief of declaration and prohibitory injunction stands confirmed. Since the cross objection has been allowed, the denial of mandatory injunction is set aside. Consequently, the suit will stand decreed as prayed for. Three months time is granted to the defendant to remove the encroachments. 14. AS the parties are neighbours, I am not inclined to impose any costs.