K.Ekambaram v. M.Balasubramanian ... RespondentPRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside
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S.A.No.480 of 2021mandatory injunction has filed the above second appeal challenging the concurrent judgment and decree of the Courts below.2.The facts of the case are briefly set out hereinbelow and the parties are referred to in the same ranking as before the Trial Court.FACTS OF THE CASE: 2.1.It is the case of the plaintiff that the rear portion of the house and premises bearing Door No.19-3/5-C2 in Thirumetrali Street, Pillayarpalayam, Kancheepuram, belongs to him. The front portion of the house belongs to his wife viz., B.Anjalam. The defendant has been living in his house with his family members. The defendant is the owner of the house bearing Door No.5A in the very same street. His house is situated on the eastern side of the plaintiff's house. The plaintiff had got the property by virtue of a partition deed dated 14.02.1992 amongst himself and his brother and his mother. His 2/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021wife purchased the other two shares from his brother and mother under the sale deeds dated 29.09.1985 and 08.02.2005. 2.2.The plaintiff would submit that there is a common passage infront of the plaintiff's house measuring a width of 9 feet in north-south. This passage is the access to reach his house. The said passage is common to both the plaintiff and defendant and also to the person owning a property between these two properties bearing Door No.5B. It is the only passage available to reach the plaintiff's house and he has no other alternative pathway. The common passage has been referred to in the earlier deeds of the plaintiff as well as in the partition deed between the plaintiff and his uncles Arumugam and Manickavelu dated 25.05.1977.2.3.Earlier, the Mutheeswarar Temple, Kancheepuram, has filed a suit claiming the right over this passage against the plaintiff and the defendant and another in O.S No.1129 of 2004 on the file of the Additional District Munsif Court, Kancheepuram. Ultimately, the 3/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021suit was compromised and a compromise decree came to be passed on 28.08.2007. The compromise decree had a plan annexed therewith, in which, the common passage has been described as 'ABCDE' and the plaintiff's right to use it as the common passage cannot be disputed by the defendant. 2.4.While so, owing to recent enmity, the defendant attempted to obstruct the common passage in the month of May 2009. Despite the objection raised by the plaintiff, the defendant put up a ramp to a length of 16 feet east-west, to a breadth of 4 feet and to a height of 2 feet in the common passage viz., 'ABCDE' in the plan. By reason of this construction, the width of the passage has reduced to 5 feet from 9 feet. This is nothing but an encroachment into the passage. That apart, the defendant had put up 2 sunshades at the lintel level projecting to a length 16 feet and breadth of 4 feet and projecting 5 feet into the common passage. This is also an obstruction into the common passage and the ramp has been described as 'AFGH' in the plaint plan and 4/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021sunshades described as 'IJKL' and 'MNOP' in the plaint plan. The sunshades as well as ramp are hindering the free movement in the common passage. Since the defendant was refusing to remove the same, the plaintiff has come forward with the present suit for injunction. 2.5.The defendant had filed a written statement denying the averments contained in the plaint. He would, however, admit to the compromise decree in O.S No.1129 of 2004. He would submit that the construction put up by him does not project into the common way. 2.6.The written statement does not categorically deny/controvert the averments contained in the plaint about the encroachment into the common passage by putting up the ramp as well as sun shades. However, the defendant prayed for the dismissal of the suit for injunction.5/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021TRIAL COURT:3.The learned Additional District Munsif, Kancheepuram, had framed the following issues for trial in the above suit. “1.Whether the plaintiff is entitled for possession and enjoyment of common passage described as ABCDE in the plaint?2.Whether the plaintiff is entitled for permanent injunction restraining the defendant from in any way interfering with his possession in the common passage as prayed for?3.Whether the construction of ramp and sunshade by the defendant are in the common passage as alleged by the plaintiff?4.Whether the plaintiff is entitled for mandatory injunction directing the defendant to remove the ramp and sunshades as prayed for?5.To what reliefs?”4.The plaintiff has examined himself as P.W.1 and marked 6/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 202110 documents as Exs.A1 to A10 on his side. The defendant has examined himself as D.W.1 and marked Exs.B1 to B6. 5.The learned Judge, ultimately, found that the passage 'ABCDE' in the plaint plan was a common passage and the defendant had encroached into the said common passage. Therefore, the suit was decreed as prayed for. LOWER APPELLATE COURT:6.Challenging the same, the defendant has filed a appeal in A.S.No.39 of 2015 on the file of the Principal Sub Court, Kancheepuram. The learned Judge, by the judgment and decree dated 15.10.2019, has dismissed the appeal and confirmed the judgment and decree of the Trial Court.7.Challenging the same, the defendant has filed the above second appeal. 7/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 20218.This matter has come up for admission on 04.08.2021 and this Court has directed the production of Exs.A6 and A9. Thereafter, the matter has come up for admission today under the caption “adjourned admission”.9.Heard the learned counsel for the appellant and perused the materials available on record.DISCUSSION:10.The learned counsel appearing on behalf of the appellant would submit that the defendant has put up a ramp only in the front portion of his property and the allegation that the defendant has encroached into the common passage is totally incorrect. Further, he would submit that owner of the other property has not been impleaded and the suit is bad for non joinder. In fact, in the grounds of appeal, the defendant would question the very compromise decree by stating that the temple cannot compromise the suit with the private 8/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021individuals. That apart, he would submit the plaintiff's ingress or egress has not been curtailed in any fashion. Therefore, he would submit that the judgment and decree of the Courts below have to be re-appreciated.11.Ex.A6 is the compromise decree passed in the earlier suit O.S.No.1129 of 2004. The plaintiff, the defendant and four others were the defendants in the said suit. The temple and the private individuals have entered into a compromise, whereunder, it was stated that the property described as 'ABCDE' in the plan has to be used by the defendants in that suit as well as the devotees. The portion marked as 'EFGHCDEHI' would be exclusively used by the defendants and it belongs only to them and it was their private way. The rough plan attached to this compromise decree which was signed by all the parties would show that the pathway measuring 9 feet east-west from the points 'AB' to the points 'DC' which measured 40 feet in length was common to the defendants as well as devotees to the temple. However, 9/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021the portion extending from the points 'EFDCGHI' measuring 9 feet in width and 69 feet in length i.e., 27 feet east-west on the north and south at the points 'EFGH' and 42 feet north-south at the points 'FCHI' was the exclusive pathway of the defendants therein which included the plaintiff and the defendant herein. 12.The plan would show that the defendant's property is the first property south of the points 'ABCI'. The first defendant therein is the defendant in the present suit. The middle portion has been allotted to the second defendant Natrajan in the said suit who has not been impleaded in the present suit. The extreme western portion below the points 'GH' has been allotted to the defendants 3 to 6 therein who are the plaintiff and the plaintiff's wife and 2 others. Therefore, from the plan, it is clear that the passage measuring 9 feet in length to an extent of 42 feet ending in points 'FH' has been shown as common passage for all the defendants in the suit O.S.No.1129 of 2004. The passage which is delineated as 'EFGH' is shown to be the exclusive property of 10/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021the plaintiff and his wife and 2 others. Both the Courts below, relying upon the photographs that have been produced on the side of the defendant have found that the ramp as well as sunshades were all projecting into the common passage. Since the compromise decree and the plan which has been marked as Exs.A6 and A9 clearly describe the common passage, taking note of the fact that the construction has been put up in this portion, there is definitely an encroachment on the part of the defendant. Both the Courts below have also concurrently observed as above in their judgment and decree. I see no reason to hold otherwise. 13.The appellant/defendant has not made out any substantial question of law that this Court is bound to answer and accordingly, this second appeal stands dismissed. Consequently, the connected C.M.P. stands closed. No costs. 19.01.2024Index: Yes/NoSpeaking order/non-speaking orderssa11/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021To1. The Additional District Munsif, Kancheepuram.2.The Principal Sub Judge, Kancheepuram. 3.The Section Officer, V.R.Section, High Court, Madras. P.T.ASHA, J.,ssa 12/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021 S.A.No.480 of 2021 19.01.202413/13
S.A.No.480 of 2021mandatory injunction has filed the above second appeal challenging the concurrent judgment and decree of the Courts below.2.The facts of the case are briefly set out hereinbelow and the parties are referred to in the same ranking as before the Trial Court.FACTS OF THE CASE: 2.1.It is the case of the plaintiff that the rear portion of the house and premises bearing Door No.19-3/5-C2 in Thirumetrali Street, Pillayarpalayam, Kancheepuram, belongs to him. The front portion of the house belongs to his wife viz., B.Anjalam. The defendant has been living in his house with his family members. The defendant is the owner of the house bearing Door No.5A in the very same street. His house is situated on the eastern side of the plaintiff's house. The plaintiff had got the property by virtue of a partition deed dated 14.02.1992 amongst himself and his brother and his mother. His 2/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021wife purchased the other two shares from his brother and mother under the sale deeds dated 29.09.1985 and 08.02.2005. 2.2.The plaintiff would submit that there is a common passage infront of the plaintiff's house measuring a width of 9 feet in north-south. This passage is the access to reach his house. The said passage is common to both the plaintiff and defendant and also to the person owning a property between these two properties bearing Door No.5B. It is the only passage available to reach the plaintiff's house and he has no other alternative pathway. The common passage has been referred to in the earlier deeds of the plaintiff as well as in the partition deed between the plaintiff and his uncles Arumugam and Manickavelu dated 25.05.1977.2.3.Earlier, the Mutheeswarar Temple, Kancheepuram, has filed a suit claiming the right over this passage against the plaintiff and the defendant and another in O.S No.1129 of 2004 on the file of the Additional District Munsif Court, Kancheepuram. Ultimately, the 3/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021suit was compromised and a compromise decree came to be passed on 28.08.2007. The compromise decree had a plan annexed therewith, in which, the common passage has been described as 'ABCDE' and the plaintiff's right to use it as the common passage cannot be disputed by the defendant. 2.4.While so, owing to recent enmity, the defendant attempted to obstruct the common passage in the month of May 2009. Despite the objection raised by the plaintiff, the defendant put up a ramp to a length of 16 feet east-west, to a breadth of 4 feet and to a height of 2 feet in the common passage viz., 'ABCDE' in the plan. By reason of this construction, the width of the passage has reduced to 5 feet from 9 feet. This is nothing but an encroachment into the passage. That apart, the defendant had put up 2 sunshades at the lintel level projecting to a length 16 feet and breadth of 4 feet and projecting 5 feet into the common passage. This is also an obstruction into the common passage and the ramp has been described as 'AFGH' in the plaint plan and 4/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021sunshades described as 'IJKL' and 'MNOP' in the plaint plan. The sunshades as well as ramp are hindering the free movement in the common passage. Since the defendant was refusing to remove the same, the plaintiff has come forward with the present suit for injunction. 2.5.The defendant had filed a written statement denying the averments contained in the plaint. He would, however, admit to the compromise decree in O.S No.1129 of 2004. He would submit that the construction put up by him does not project into the common way. 2.6.The written statement does not categorically deny/controvert the averments contained in the plaint about the encroachment into the common passage by putting up the ramp as well as sun shades. However, the defendant prayed for the dismissal of the suit for injunction.5/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021TRIAL COURT:3.The learned Additional District Munsif, Kancheepuram, had framed the following issues for trial in the above suit. “1.Whether the plaintiff is entitled for possession and enjoyment of common passage described as ABCDE in the plaint?2.Whether the plaintiff is entitled for permanent injunction restraining the defendant from in any way interfering with his possession in the common passage as prayed for?3.Whether the construction of ramp and sunshade by the defendant are in the common passage as alleged by the plaintiff?4.Whether the plaintiff is entitled for mandatory injunction directing the defendant to remove the ramp and sunshades as prayed for?5.To what reliefs?”4.The plaintiff has examined himself as P.W.1 and marked 6/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 202110 documents as Exs.A1 to A10 on his side. The defendant has examined himself as D.W.1 and marked Exs.B1 to B6. 5.The learned Judge, ultimately, found that the passage 'ABCDE' in the plaint plan was a common passage and the defendant had encroached into the said common passage. Therefore, the suit was decreed as prayed for. LOWER APPELLATE COURT:6.Challenging the same, the defendant has filed a appeal in A.S.No.39 of 2015 on the file of the Principal Sub Court, Kancheepuram. The learned Judge, by the judgment and decree dated 15.10.2019, has dismissed the appeal and confirmed the judgment and decree of the Trial Court.7.Challenging the same, the defendant has filed the above second appeal. 7/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 20218.This matter has come up for admission on 04.08.2021 and this Court has directed the production of Exs.A6 and A9. Thereafter, the matter has come up for admission today under the caption “adjourned admission”.9.Heard the learned counsel for the appellant and perused the materials available on record.DISCUSSION:10.The learned counsel appearing on behalf of the appellant would submit that the defendant has put up a ramp only in the front portion of his property and the allegation that the defendant has encroached into the common passage is totally incorrect. Further, he would submit that owner of the other property has not been impleaded and the suit is bad for non joinder. In fact, in the grounds of appeal, the defendant would question the very compromise decree by stating that the temple cannot compromise the suit with the private 8/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021individuals. That apart, he would submit the plaintiff's ingress or egress has not been curtailed in any fashion. Therefore, he would submit that the judgment and decree of the Courts below have to be re-appreciated.11.Ex.A6 is the compromise decree passed in the earlier suit O.S.No.1129 of 2004. The plaintiff, the defendant and four others were the defendants in the said suit. The temple and the private individuals have entered into a compromise, whereunder, it was stated that the property described as 'ABCDE' in the plan has to be used by the defendants in that suit as well as the devotees. The portion marked as 'EFGHCDEHI' would be exclusively used by the defendants and it belongs only to them and it was their private way. The rough plan attached to this compromise decree which was signed by all the parties would show that the pathway measuring 9 feet east-west from the points 'AB' to the points 'DC' which measured 40 feet in length was common to the defendants as well as devotees to the temple. However, 9/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021the portion extending from the points 'EFDCGHI' measuring 9 feet in width and 69 feet in length i.e., 27 feet east-west on the north and south at the points 'EFGH' and 42 feet north-south at the points 'FCHI' was the exclusive pathway of the defendants therein which included the plaintiff and the defendant herein. 12.The plan would show that the defendant's property is the first property south of the points 'ABCI'. The first defendant therein is the defendant in the present suit. The middle portion has been allotted to the second defendant Natrajan in the said suit who has not been impleaded in the present suit. The extreme western portion below the points 'GH' has been allotted to the defendants 3 to 6 therein who are the plaintiff and the plaintiff's wife and 2 others. Therefore, from the plan, it is clear that the passage measuring 9 feet in length to an extent of 42 feet ending in points 'FH' has been shown as common passage for all the defendants in the suit O.S.No.1129 of 2004. The passage which is delineated as 'EFGH' is shown to be the exclusive property of 10/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021the plaintiff and his wife and 2 others. Both the Courts below, relying upon the photographs that have been produced on the side of the defendant have found that the ramp as well as sunshades were all projecting into the common passage. Since the compromise decree and the plan which has been marked as Exs.A6 and A9 clearly describe the common passage, taking note of the fact that the construction has been put up in this portion, there is definitely an encroachment on the part of the defendant. Both the Courts below have also concurrently observed as above in their judgment and decree. I see no reason to hold otherwise. 13.The appellant/defendant has not made out any substantial question of law that this Court is bound to answer and accordingly, this second appeal stands dismissed. Consequently, the connected C.M.P. stands closed. No costs. 19.01.2024Index: Yes/NoSpeaking order/non-speaking orderssa11/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021To1. The Additional District Munsif, Kancheepuram.2.The Principal Sub Judge, Kancheepuram. 3.The Section Officer, V.R.Section, High Court, Madras. P.T.ASHA, J.,ssa 12/13 https://www.mhc.tn.gov.in/judis S.A.No.480 of 2021 S.A.No.480 of 2021 19.01.202413/13