✦ High Court of India · 24 Sep 2025

High Court · 2025

Case Details High Court of India · 24 Sep 2025

Court

High Court of India

Decided

24 Sep 2025

Bench

Addl. District and Sessions XIV Asst.City Civil Additional District and Sessions XIV Assistant City Civil The learned Trial

Length

2,044 words

Acts & Sections

Code of Civil Procedure §100

SA No. 1212 of 2009IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24-09-2025CORAMTHE HONOURABLE DR.JUSTICE R.N.MANJULASA No. 1212 of 20091. S. KalavathyNo 12/1-s Vasantha Gounder Ist Street Ist Lane Ayanavaram Chennai- 23.Appellant(s)Vs1. N. Parameshwari(died)No 12/1-s Vasantha Garden Ist Street Ist Lane Ayanavaram Chennai- 23.2.S. NatarajanNo 12/1-2 Vasantha Garden Ist Street Ist Lane Ayanavaram Chennai- 23.3.DEVIKANo.12/1, Vasantha Garden 1st St., 1st Lane) Ayanavaram Chennai 234.SARANYANo.12/1, Vasantha Garden 1st St., 1st Lane) Ayanavaram Chennai 23 https://www.mhc.tn.gov.in/judis SA No. 1212 of 20095.HEMALATHAD/o S.Natarajan No.12/1, Vasantha Garden 1st St., 1st Lane) Ayanavaram Chennai 23[Rr 3 To 5 Brought On Record As Lrs Of The Deceased 1st Respondent Viz.,n. Parameshwari Vide Order Of Court Dated 25/09/2020 Made In Cmp.No.7368/2020 In Sa.No.1212/2009(dr.Gjj)]Respondent(s)PRAYER: This second appeal is filed under section 100 of CPC, against the judgmenet and decree passed by the learned Addl. District and Sessions Judge (Fast Track Court IV, Madras) in A.S.No.482/2005 on 24.01.2007 confirming the judgmenet and Decree passed by the learned XIV Asst.City Civil Judge, Madras in OS.No.1860/2001 on 10.12.2004.For Appellant(s):M/s. G. MohanranganFor Respondent(s):M/s.G.Krishnamurthy M.Rajendiran S.L.Venkatesan M.Aswin For Rr2 To 5JUDGEMENTThis second appeal has been preferred challenging the judgment and decree dated 24.01.2007 passed by the learned Additional District and Sessions Judge, Fast Track Court–IV, Chennai, in A.S. No.482 of 2005, confirming the judgment and decree dated 10.12.2004 passed by the learned XIV Assistant City Civil Judge, Madras, in O.S. No.1860 of 2001. https://www.mhc.tn.gov.in/judis SA No. 1212 of 20092. The appellant/plaintiff had filed the suit seeking relief of mandatory injunction and permanent injunction. The Trial Court, by judgement dated 10.12.2004 in O.S. No.1860 of 2001, dismissed the suit. The first appeal preferred by the plaintiff in A.S. No.482 of 2005, challenging the dismissal, was also dismissed on 24.01.2007, thereby confirming the decree of the Trial Court. Aggrieved by the same, the plaintiff has now filed the present second appeal.3. The short facts pleaded in the plaint filed by the plaintiff are as follows:The plaintiff purchased the suit property, being a vacant site, from the first defendant on 29.06.1995, and has been enjoying the same for the purpose of access to Vasantham Garden First Street. The plaintiff is entitled to the entirety of the house property bearing Door No.12/1 at No.12-1/2, situated in First Street, Vasantham Garden, Ayanavaram, Chennai. The present survey numbers are T.S. No.74/3 and 83/4 in Block No.9 of Chinna Chembarkkam Village, Perambur–Purasawalkam Taluk, Chennai, measuring an extent of 512 ½ sq.ft., which is the common pathway and constitutes the suit property.3.1. The plaintiff purchased the suit property from the first defendant on 29.06.1995, and the said property had earlier been purchased by the first defendant on 23.12.1993. After purchase, patta was transferred in the name of the plaintiff, and he has been in enjoyment of the property. The first defendant’s property lies adjacent to that of the plaintiff on the eastern side. The second https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009defendant is the husband of the first defendant. There exists a common pathway, measuring 3 ft. × 35 ft., leading to Vasantham Garden First Street and providing access to the plaintiff’s property, which is situated behind the suit property. The plaintiff’s property lies on the eastern side, while the first defendant’s property lies on the northern side. Both the plaintiff and the first defendant have been jointly enjoying the said pathway.3.2. When the defendants commenced reconstruction of their house, they extended the construction into the common pathway, which was objected to by the plaintiff. Since the defendants have no right to put up any construction in the suit property, the plaintiff has filed the present suit seeking a decree of mandatory injunction for removal of the construction already put up, and for permanent injunction restraining the defendants from interfering with his peaceful enjoyment of the suit property.4.Short facts pleaded in the written statement of the defendants are as follows:The defendants have filed a written statement stating that the building was already in existence on the suit property prior to the year 1993. The suit has been filed only when the defendants commenced renovation and repair works on their building. The defendants further contended that the suit is barred by limitation and is therefore liable to be dismissed. https://www.mhc.tn.gov.in/judis SA No. 1212 of 20095. On the basis of the above pleadings, the trial Court has framed the following issues:1. jhth bghJ ghijapy; fpHg;g[wKs;s Rtw;wpYs;s $d;dyf;F nky; gpujpthjpfs;Fhpa jLg;g[ fl;o Mf;fpukpj;Js;shh; vd;w thjpapd; Tw;W rhpahdjh>2. bghJ ghijapy; gpujpthjpfs; Mf;fpukpj;J fl;oa[s;sjhf Twk; Fupa jLg;gpid mg;g[wg;gLj;j ntz;Lbkd thjp nfhUk; braYWj;Jf; fl;lis kw;Wk; epue;ju cWj;Jf; fl;lis ghpfhuk; rhpahd Kfhe;juj;jpd; ghy; js;Sgo bra;ag;gl;Ls;sjh>3.,k; nky;KiwaPL mDkjpf;fj; jf;fjh>6. During the course of trial, on the side of the plaintiff, two witness were examined as P.W.1 and 2, and Exs.A1 to A7 were marked. On the side of the defendant, one witness was examined as D.W.1 , and Exs.B1 to B12 were marked.7. After completion of the trial and upon consideration of the materials available on record, the Trial Court, by its judgement dated 10.12.2004 in O.S. No.1860 of 2001, dismissed the plaintiff’s suit. The plaintiff subsequently preferred the first appeal in A.S. No.482 of 2005, which was also dismissed on 24.01.2007, thereby confirming the Trial Court’s decree. Aggrieved by the same, the plaintiff has filed the present second appeal and it has been admitted on the following substantial questions of law: https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009"1.Whether it is imperative for the plaintiff to always seek for appointment of an Advocate Commissioner and the Court should rely on such report of the Advocate Commissioner alone to determine the issues raised in the plaint?2.Whether in a common passage, the Courts below have come to a proper conclusion about the date of construction of the first floor by the defendants and whether it was prior to the purchase of the plaintiff or after the purchase of the plaintiff?"8. The learned counsel for the appellant submitted that both the courts below failed to appreciate the evidence in a holistic manner and therefore, erroneously dismissed the suit. The learned Trial Judge, in particular, had held that the pathway is a common pathway and dismissed the suit, which, according to the appellant, is incorrect.9. The learned counsel for the respondent, on the other hand, submitted that the courts below rightly appreciated the evidence, especially the admission given by P.W.2 during her examination, and that the First Appellate Court had correctly upheld the findings of the Trial Court.DISCUSSION:10. The appellant/plaintiff who filed the suit has got the burden to prove that the defendant had encroached on the suit property in certain specific https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009measurements as alleged by him. Even in the particulars of the property details in the plaint, there is no specific description given as to the alleged unauthorised construction extended by the respondents/defendants for which the relief of mandatory injunction is claimed.11. It is all along the claim of the plaintiff that there is a common pathway, and the defendants, while raising the first floor of their property, had included the common pathway also in their building and thereby disturbed the plaintiff's enjoyment of air and light over the common pathway. On perusal of the judgement of the learned trial judge, it appears that the learned trial judge has framed a specific issue as to whether the defendant had extended his construction by encroaching upon the common pathway. On a thorough appraisal of Ex. A1 and A2 and Ex. B1 and B2, which are the title deeds of the parties, the learned trial Judge has rendered a finding that there is a common pathway between the plaintiff's land and the 1st defendant's land.12. However, in the evidence of PW.2, he has admitted that when he purchased the property from the first defendant, the first defendant had left 3 ft on the eastern side and 5 ft on the western side meant for a common pathway. While the plaintiff raised construction on her property, she had utilised the vacant land left on the eastern side and western side on her side for the purpose of constructing staircases and sunshades. PW.2 is none other than the husband of PW.1, who is the plaintiff herein; his evidence would reveal that the plaintiff https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009has utilised the space left for air and light by raising construction of her house. At the time when the plaintiff raised her construction, the adjacent property on the northern side was vacant, and hence the plaintiff could have got the air and light facility easily.13. It appears that the owner of the northern side built his house in the vacant site, and thereafter the plaintiff filed a suit saying that the defendants had encroached upon the common pathway and extended their construction by obstructing the air and light facility enjoyed by the plaintiffs. The learned trial Judge had appreciated the above admission given in the evidence of PW.2 and had stated that the plaintiff, having consumed the whole of the vacant site, cannot claim that the defendants have occupied the common pathway.14. When the appellant/plaintiff has raised the specific allegation that the 1st defendant extended the first floor of his building by obstructing the plaintiff's right to air and light in the common pathway, it is obligatory on her part to prove the said fact. An appointment of a commissioner in this type of case, in order to visit the site and file a report with the surveyor's plan, which reduced much of the oral evidence. Without the report of the commissioner with regard to the physical features of the property, the court cannot presume on its own about the constructions and their position in the suit property. 15. The plaintiff has not filed any application for seeking appointment of a commissioner for visiting the suit property and filing its report. Apart from https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009that, the husband of the plaintiff, PW.2, himself has admitted in his evidence that the vacant site meant for a common pathway has been utilised by them by raising constructions like staircases and some sunshades. It appears from the evidence of PW.2 that the plaintiff has obstructed air and light passing through the common pathway by raising his own constructions. Having done so, he cannot claim further space from the adjacent owner by saying that his enjoyment of air and light is getting obstructed.16. As the nature of the suit is based on the application on the part of the plaintiff to seek for the appointment of an advocate commissioner, the failure on the part of the plaintiff can only be construed as withholding the best evidence for the appreciation of the court. Even though the court can also look upon the other evidence, the other evidence available on record is not favourable to the case of the plaintiff. From the building plans of the respective parties, the court can ascertain the time during which they have raised their construction. However, that alone cannot determine whether on the ground the constructions are made only in accordance with the approved plan or whether the constructions have been erected by the plaintiff by including the common pathway. 17. As the plaintiff who had come to the court for seeking a relief, and that too for the relief of a mandatory injunction, has got a duty to prove before the court that a property within the specific measurement has been encroached upon by the defendants. The plaintiff has failed to establish the same. The https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009evidence available on record, including the admission of the plaintiff's side witness, namely PW.2, would only disprove the case of the plaintiff. Hence, I don't find any perversity in the appreciation of the evidence by the trial court for dismissing the suit. The first appellate court has rightly appreciated the reason given by the trial court and has chosen to dismiss the suit. Hence, the substantial questions of law are answered against the appellant.In the result, this second appeal stands dismissed. No costs. The connected miscellaneous petitions, if any, are also closed.24-09-2025Index:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/Nojrs https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009SA No. 1212 of 2009To1. The Addl. District and Sessions Judge (Fast Track Court IV, Madras) 2.The XIV Asst.City Civil Judge, Madras https://www.mhc.tn.gov.in/judis SA No. 1212 of 2009R.N.MANJULA J.jrsSA No. 1212 of 2009 24-09-2025

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