High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 16.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.956 of 19951.V.Ranga Durai2.K.Sundarsan Pattar3.Smt.K.Ranganayagi... Appellants/PlaintiffVs.1.S.Jayalakshmi2.R.Sundaram... Respondents/DefendantsPRAYER: Second Appeal under section 100 of code of Civil Procedure againstthe Judgment and decree dated 17.04.1995 rendered in A.S.No.26 of 1994 onthe file of the First Additional Subordinate Judge, Coimbatore, reversingand decree and the judgement dated 30.11.1993 rendered in O.S.No.2290 of1989 on the file of Third Additional District Munsif of Coimbatore. For Appellants : M/s.S.Subbiah Manickavel For Respondents : M/s.V.Raghavachari for M/s.K.Moorthy M.Karunanidhi for R1&2J U D G M E N TThe plaintiffs in the Trial Court are the appellants in the SecondAppeal. Originally the suit was filed for permanent injunction againstthe defendants from interfering with the enjoyment of the suit property byputting up septic tank or by laying underground pipe and thereafterincluded the relief of mandatory injunction to remove the constructionstated to have been made by the defendants in the portion marked asA,B,C,D,E,F,G,D. The suit property itself is a lane measuring East West45 cubits on the Eastern side and North to South 3 cubits and the propertysituated in Karamadai Village, Mettupalayam, Coimbatore District. 2. The plaintiffs claim to be the owners of the suit propertyobtained by way of registered partition deed, dated 24.02.1954 marked asEx.A.1. The first defendant has purchased the house situated immediatelyon the Southern side of the suit property and they have no right of way oraccess through the suit property, which is a passage exclusively for theplaintiffs. Taking advantage of the fact that the suit properties are thevacant land, the defendants have attempted to interfere and subsequently https://hcservices.ecourts.gov.in/hcservices/ they have also put up the septic tank and laid down underground pipe inspite of an order of injunction and therefore, the mandatory injunctionwas also claimed. 3. On the other hand, the defendants’ case is that the suit lane isa common lane for both plaintiffs as well as the defendants. Due to theinjunction order, they are not using the suit lane. It is also the caseof the defendants that even before their purchase, which was on 26.10.1979marked as Ex.B.5 the predecessors in title of the defendants have alsobeen using for a long time as a common passage and the defendantsthemselves who were the tenants were using the same as a common passage toreach their portion. It is also the case of the defendants that thedefendants have never prevented the plaintiffs from using the suitproperty to reach their property. It is also their case that they havelaid the pipe line only after obtaining permission from the Panchayat andthey have also left sufficient space for the purpose of plaintiffs toreach their place. The defendants have also stated that after filing ofthe suit, they have not put up any construction. They also denied thatthey have made any encroachment. It is also the case of the defendantsthat the plaintiffs have filed earlier suit in O.S.No.2095 of 1984 inrespect of the same property and it was held on 15.02.1985 in the saidsuit marked as Ex.B.4 that the plaintiffs are not the owners of theproperty. The copy of the plaint as well as the written statement andalso Commissioner’s report in the said suit have been marked as Exs.B.1,B.2 and B.3. Therefore, according to the defendants, the suit is hit byprinciples of res judicata. After appreciation of the entire evidence andalso documents, the Trial Court has decreed the suit. On the appeal filedby the defendants in A.S.No.26 of 1994, the First Appellate Court hasreversed the finding of the Trial Court by dismissing the suit. It is asagainst the said judgement and decree of the First Appellant Court. theplaintiffs have filed the Second Appeal. 4. While admitting the Second Appeal, the following substantialquestion of law was framed by this Court: "Whether the judgement of the Lower Appellate Court is vitiatedby its failure to apply the correct principles of law andconsider the entire evidence on record?"5. The contention raised by the learned counsel for the appellantsis that when once the Appellate Court has come to a conclusion byreferring the contents of Ex.A.1 relating to the suit property that thesuit lane mentioned is in conformity with the actual lane now inexistence, the further statement that there is no encroachment based onthe photographs Ex.B.13 and B.14 and therefore, mandatory injunctioncannot be granted, is a clear contradiction. He would also submit thatwhile the learned First Appellate Judge on reference to the defendant’sdocument under Ex.B.6 dated 18.04.1950 and B.5 dated 26.10.1979 has cometo a definite conclusion that there is an excess construction on the https://hcservices.ecourts.gov.in/hcservices/ defendant’s site, has chosen to decide against the plaintiff on the basisthat excess construction was admittedly on the defendant’s side and itdoes not tally with the extent of encroachment stated in the plaint. Hewould also submit that the defendants themselves have taken acontradictory stand. While in the original written statement thedefendants have chosen to state that the suit property is a commonpassage, in the additional written statement they have even denied it as acommon passage. He would also fairly submit that however the AdvocateCommissioner’s report marked as Ex.C.1 and C.2 does not speak anythingabout the encroachment or identify the extent of encroachment. 6. On the other hand, Mr.V.Raghavachari learned counsel appearingfor the respondents would submit that it has been the definite case of thedefendants that the plaintiffs have no title. He would submit that it isnot as if in the additional written statement the defendants have deniedthe suit property as a common passage. 7. A reference to the additional written statement filed by thedefendants would show that the defendants have maintained that the suitproperty is a common passage. 8. He would submit that a reference to the plaint shows that thereis no specific mention about the extent of encroachment alleged to havebeen made. According to him, when a suit for mandatory injunction isfiled the duty is cast on the plaintiffs to come out clearly to the exactextent of encroachment. He would further submit that inasmuch as theplaintiff’s title is disputed unless the title of the plaintiff isdeclared, the suit for injunction is not maintainable for which he wouldrely upon the Judgement of this Court reported in 2001(1) LW 724. Hewould also rely upon the Judgement of this Court reported in AIR 1987Madras 102 and contended that the plaintiff has to independently establishhis right and title based on his pleadings. He would also submit thateven assuming that there is encroachment by putting up the septic tank andwater pipe line, the plaintiff having allowed the said construction to goon, cannot be permitted to pray for the relief of mandatory injunction, byrelying upon the judgement of Rajasthan High Court reported in AIR 1974Rajasthan 144. 9. A reference to the pleadings as rightly pointed by the learnedcounsel for the respondents show that the plaintiffs have not come forwardwith definite extent of encroachment stated to have been made by thedefendants. It is also seen under Ex.C.1 and C.2 Commissioner’s reportthat there is no whisper about any encroachment stated to have been madeby the defendants. 10. On the other hand, the learned Advocate Commissioner hasspecifically stated about the septic tank and construction as follows: "8. The Respondents/Plaintiffs' counsel asked me to take note ofthe condition of the East-west AB wall. I found it to be very https://hcservices.ecourts.gov.in/hcservices/ old one. The Petitioners/Defendants counsel asked me to notewhether any Septic Tank or any construction is situated in thevacant portion between points A1 C2 C3 D E F G and I, I found nosuch septic tank or any construction is situated in between thesaid points. I also saw a sun shade with a breadth of 2 feetrunning over the walls between points DEF and G. I also notedthat no door numbers were seen over the Petitioners/Defendants 3doors D1 D2 and D3."11. Therefore, neither the plaint nor the Advocate Commissioner’sreport states anything about the extent of encroachment stated to havebeen made by the defendants and in view of the same, as correctly found bythe learned First Appellate Judge there is no question of any mandatoryinjunction decree which can be passed in such circumstances. In thisregard, it is relevant to point out that Order VII Rule 8 of Code CivilProcedure specifically states that when the plaintiff is seeking relief onvarious claims it must be with the distinct grounds. The said provisionis as follows: "8. Relief founded on separate grounds.- Where the plaintiff seeks relief in respect of several distinctclaims or causes of action founded upon separate and distinctgrounds, they shall be stand as far as may be separately anddistinctly."12. It is more relevant in cases of suit for mandatory injunctionfor more than one reason namely, that even ultimately if the Court come toa conclusion and decree for mandatory injunction is passed unless thespecific extent of encroachment distinctively stated execution itselfwould become impossible, with result the decree will become a nugatory. 13. It is further clear that as far as the defendants are concernedin the original written statement as well as additional written statementthey have stated that the suit property is a common passage and they donot deny the right of using by the plaintiff themselves. 14. On the other hand, it is the case of the plaintiffs that theyare the exclusive owners based on the documents, namely, Ex.A.1 dated24.02.1954. On the other hand, the defendants have also relied upon thedocument under Ex.B.5 dated 26.10.1979 apart from the judgement in anothersuit filed by the plaintiff themselves in O.S.No.2095 of 1984 dismissingthe claim of the plaintiff marked as Ex.A.4. In such circumstances evenassuming that the decision in the said Civil Court is not relating to thepresent suit property, the filing of the suit for bare injunction and alsomandatory injunction without having the title declared on the factualsituation wherein both the parties are relying upon the documents is notmaintainable. 15. The First Appellate Court has also correctly found that in thepresence of earlier judgement in O.S.No.2094 of 1984 filed by theplaintiffs marked as Ex.B.4 rejecting the claim of the plaintiffs to have https://hcservices.ecourts.gov.in/hcservices/ right over the suit property, the principle of res judicata appliesagainst the present suit. As also correctly found by the learned FirstAppellate Judge, the Trial Court has proceeded only based on the documentsand evidence of the defendants instead of appreciating that the plaintiffswho are seeking a decree for injunction as well as the mandatoryinjunction have neither pleaded their case specifically nor proved thesame especially in the circumstance that the Advocate Commissioner’sreport itself is not in favour of the plaintiffs. 16. In view of the above, the substantial question of law framed bythis Court is answered in favour of the respondents and the judgement anddecree of the First Appellate Court is confirmed setting aside thejudgement of the Trial Court and the Second Appeal stands dismissed. Nocost. nbjSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1. The I Addl. Subordinate Judge, Coimbatore2. The III Addl. District Munsif, Coimbatore.3. The Section Officer, VR Section, HighCourt Madras.+1 cc to Mr.S.Subbiah, Advocate Sr.24914.+1 cc to Mr.K.Moorthy, Advocate Sr.No.25038.TEJ(CO)dcp/30.05.2007S.A.No.956 of 1995