Sagayanathan v. D.Lingappan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 07.10.2009CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANS.A.No.839 of 2009and M.P.No.1 of 2009Sagayanathan .... Appellant/Defendantvs.D.Lingappan .... Respondent/PlaintiffSecond Appeal filed against the Judgment and Decree, dated26.11.2007 passed in A.S.No.13 of 2007 on the file of the DistrictJudge, Nilgris, reversing the Judgment and Decree, dated 14.08.2007passed in O.S.No.55 of 2005 on the file of the Subordinate Judge ofNilgris at Udhagamandalam. For Appellant : Mr.Ramanujam for Mr.A.BobblieFor Respondent : Mr.M.JayaramanJUDGMENTThe Second Appeal has been preferred against the Judgment andDecree, dated 26.11.2007 made in A.S.No.13 of 2007 on the file of theDistrict Judge, Nilgris, reversing the Judgment and Decree, dated14.08.2007 made in O.S.No.55 of 2005 on the file of the SubordinateJudge, Nilgris at Udhagamandalam. 2. The defendant before the trial court is the appellant herein.It is seen that the suit was filed by the respondent herein, seekingmandatory injunction to remove the alleged encroachment made in "A"schedule property of the plaint and for permanent injunction againstthe defendant, his men etc., from parking vehicles in the allegedcommon road of 14 feet width described as "B" schedule of the suitproperty and also for costs.3. After the trial, the suit was dismissed by the trial courtwithout costs. Aggrieved by which, the plaintiff preferred an appeal.The appellate court, by its Judgment and Decree, dated 26.11.2007allowed the appeal, by reversing the Judgment and Decree passed bythe trial court and granted mandatory injunction, directing the https://hcservices.ecourts.gov.in/hcservices/ appellant / defendant to vacate the encroachment caused by him on thecommon road by erecting gate pillars and sliding gate which aredescribed in the schedule A and delineate in blue colour in Ex.C.2,sketch. Similarly, the appellant / defendant and his men etc., arerestrained by way of permanent injunction from blocking the free userof the 14 feet width road described in "B" schedule of property bythe plaintiff and his family members using the same. For removing theencroachment, one month time was granted by the first appellatecourt. Ex.C.2, sketch prepared by the Advocate-Commissioner, whichwas made part of the decree.4. In the Second Appeal, the following questions have beenraised as Substantial Questions of Law by the appellant :1. Whether the suit for mandatory injunctionis maintainable in the absence of any document toprove the width of the pathway ?2. Whether the first appellate court is rightin reversing the Judgment and Decree passed by thetrial court only relying on the Advocate-Commissioner's Report, Ex.C.1 ?3. Whether is not burden of proof solely onthe plaintiff to prove that there was a commonpathway measuring 14 feet width and has not thefirst appellate court erred in shifting the burdenon the defendant ?4. In the absence of any complaint ofencroachment by other land owners, has not thefirst appellate court erred in holding there is anencroachment ?5. In the absence of the title deed notmentioned the width of the common pathway is notthe burden proving the width of the common pathwayon the plaintiff ?6. Is not the appreciation of evidence bothoral and documentary of the appellate court isperverse ?4. Mr.Ramanujam, learned counsel appearing for the appellantchallenged the impugned Judgment and Decree on the ground that thesuit filed by the respondent / plaintiff, seeking mandatoryinjunction and permanent injunction, without a prayer for declarationof right is not legally sustainable and further contended that thefirst appellate court has solely relied on Ex.C.1, Advocate- https://hcservices.ecourts.gov.in/hcservices/ Commissioner's Report for decreeing the suit. Similarly, according tothe learned counsel, the 14 feet width of the common road was notestablished by the plaintiff and the burden cannot be shifted on theappellant, who was the defendant in the suit.5. Per contra, Mr.M.Jayaraman, learned counsel appearing for therespondent / plaintiff placed his arguments that the alleged pathwayhas been admitted, even in the sale deed, executed in favour of theappellant / defendant by his vendor as well as the appellant,similarly, the measurement in respect of the width of the road hasbeen established and therefore, according to the learned counsel forthe respondent / plaintiff, there is no need for seeking adeclaratory prayer in the instant case.6. It is seen that an Advocate-Commissioner was appointed toinspect the suit property and to file his report. As per the order ofthe court, he inspected the suit property to find out the allegedencroachment in the common road of 14 feet width. The Advocate-Commissioner's report was marked as Ex.C.1 and the sketch prepared bythe Govt. Surveyor has been marked as Ex.C.2. As per the Advocate-Commissioner's Report, 14 feet width common road is passing throughR.S.Nos.939/1 and 513/1A3 of Kothagiti Town. In the sketch, Ex.C.2,it is seen that the properties on the west of the 14 feet common roadare house sites (plots) belonging to various persons. It is not indispute that the entire property originally belonged to one commonvendor.7. Learned counsel appearing for the respondent drew theattention of this Court to the sketch, Ex.C.2 and pointed out thatthe width of the road is 14 feet and the road runs approximately fromsouth to north, only nearby the appellant's / defendant's property,the width of the road has been reduced. It has been established byExs.C.1 and C.2 that everywhere the width of the road is 14 feet,only nearby the appellant's / defendant's property, the width wasfound only 11.5 feet and 12.6 feet, therefore, there is anencroachment in the road, as shown in the sketch. 8. Learned counsel appearing for the appellant / defendantargued that the Advocate-Commissioner has stated that there is anencroachment by the appellant / defendant, which cannot be decided bythe Advocate-Commissioner and he also disputed the Advocate-Commissioner's Report and sketch. The main contention raised by thelearned counsel appearing for the appellant is that the Advocate-Commissioner has not measured the property belongs to the defendant,though he measured only the alleged 14 feet road.9. However, learned counsel appearing for the appellant has notdisputed the fact that the appellant /defendant had not filed anyobjection to the Advocate-Commissioner's Report, Ex.C.1 and the https://hcservices.ecourts.gov.in/hcservices/ sketch Ex.C.2. It is not in dispute that the Advocate-Commissionerhad inspected the property and prepared the sketch with the help ofGovernment Surveyor, Kothagiri and therefore, it is not open to theappellant now to dispute the measurement taken by the Surveyor andthe physical features found by the Advocate-Commissioner. 10. The next question raised by the learned counsel appearingfor the appellant is that the defendant's property was not measuredby the Advocate-Commissioner with the help of surveyor. But,admittedly the court below had directed the Advocate-Commissioner toinspect the suit property and to file a report with measurements. Asper the Advocate-Commissioner's Report and the sketch, Ex.C.2,prepared by Government shows that the Surveyor has measured the suitproperty. It is seen that on the southern extremity, club road isdescribed, nearby the club road, the common road is abutting one tealand, measuring 43.6 feet on the west, 30 feet on the east, whereinthe width of the road at the said place is stated as 14 feet.Similarly, the road in front of the next plot on the north is alsoshown as 14 feet width. Subsequently, the vacant site of thedefendant's property was shown wherein the width is stated as 12.6and 11.5 feet. Except nearby the appellant's / defendant's property,in all other parts of the common road, the width is 14 feet.11. Beyond the suit property, there are 3 other plots, includingthe appellant's property, where the width of the common road is 14feet and therefore, it is clear that only nearby the defendant'sproperty the width of the road is shown as 12.6 feet and 11.5 feet.Ex.A.9 is the copy of the registered sale deed, dated 27.06.1997executed in favour of one R.Shankar by E.Franklin, wherein theeastern boundary is shown as 14 feet cart-track. The sale deed, dated19.01.1999 executed by Dr.R.Shankar in favour of D.Lingappa, therespondent herein was marked as Ex.A.1, wherein the eastern boundaryis stated as 14 feet width motorable common road. The reply notice,dated 10.02.2005 issued by the appellant to the respondent is markedas Ex.A.7, wherein it is clearly stated as follows :"The access to this property is mentioned in yournotice is through the 14 feet width common privateroad. The fact that this access is common has alsobeen conceded to by your client. That being soyour client cannot claim to have any special rightto the usage of the said road, in derogation ofthe right granted to all the purchasers, under thedocuments of purchase."In the reply notice, the appellant herein has admitted that thewidth of the common private road is 14 feet and further, in thecross-examination of the appellant, who was examined as D.W.1 hasadmitted that as per Ex.A.7, the width of the common road is 14 feet. https://hcservices.ecourts.gov.in/hcservices/ Similarly, he has admitted the fact that one Franklin was theoriginal owner of the entire property, that was purchased by theappellant, respondent and others. There is no dispute that the suitprivate common road is on the eastern side of the property purchasedby the parties to the suit / appeal and its width is 14 feet.12. It is a settled proposition of law that admission need noproof. In the instant case, the appellant / defendant has admittedthat he purchased his land from the said common vendor, Franklin asthat of the respondent herein. In Exs.A.1 and A.9, eastern boundaryis stated as 14 feet cart-track. The appellant / defendant hascategorically admitted in his reply notice and in his cross-examination that the width of the common road is stated in thedocuments as 14 feet. He has not filed any objection to the Advocate-Commissioner's Report and the sketch prepared by the GovernmentSurveyor and marked as Ex.C.2.13. When there is a clear admission and clinching evidence, tosupport the findings of the courts below with regard to the right ofthe plaintiff, who is the respondent herein, I am of the view thatdeclaratory prayer is not mandatory. In otherwise, when the right ofthe claimant is established, without any cloudy circumstances,seeking relief of mandatory injunction or prohibitory injunction,based on the admitted right is legally maintainable. Only if there isany cloudy or suspicious circumstances with regard to the right of aperson claiming mandatory injunction or prohibitory injunction,declaration of such right would be a pre-requisite. As admissionneeds no proof, I am of the view that the declaratory prayer is notmandatory, though the present suit is for mandatory injunction,hence, the suit is legally maintainable, accordingly, the allegedsubstantial questions of law 1, 2 and 3 are answered against theappellant and in favour of the respondent.14. Learned counsel appearing for the appellant cited thedecision, Lakshmipathy vs. Madras Gymkhana Club, reported in 1996-IIMLJP 573,wherein this Court has held as follows :"To get mandatory injunction, whether permanent ortemporary, plaintiff should be specific that therewas a breach of obligation, and certain acts arenecessary to restore the status quo. Learned counselfor the appellant was at pains to substantiate hiscase that there was an obligation on the part of thedefendant-Club, towards the plaintiff. If there isno obligation, the question of granting anymandatory injunction does not arise."As per this decision, it is clear that to get mandatory injunction,whether permanent or temporary, plaintiff should be specific that https://hcservices.ecourts.gov.in/hcservices/ there was a breach of obligation. In the instant case, it is not indispute that the appellant, respondent and others purchased theproperties from a common vendor, Franklin. In the sale deeds,admittedly, the eastern boundary is stated as 14 feet width commonroad and therefore, there is a clear implied obligation on the partof the appellant, respondent and other persons having right in theroad in maintaining the road without any encroachment. Theencroachment made by the appellant clearly established that there isa breach of obligation by the appellant herein.15. In the instant case, it cannot be decided that the firstappellate court has shifted the burden on the appellant / defendant,since the finding of the court below is supported by evidence, whichcannot be construed as a perverse finding.16. The respondent / plaintiff has averred in the pliant thatthe cause of action for filing the suit arose at Kothagiri in thefirst week of April 2004, when the defendant erected gate pillars andsliding gate by encroaching into the common road and subsequentlywhen the defendant failed to vacate the said encroachment, despitethe police complaint, dated 13.04.2004 and the legal notice, dated17.01.2005 and therefore, the appellant cannot raise any substantialquestion of law that in the absence of any complaint of encroachmentby the other land owners, the court below has held that there is anencroachment. The respondent / plaintiff being an aggrieved party onaccount of the breach of obligation by the appellant / defendant, hehas caused of action to file the suit. It is not mandatory on thepart of the plaintiff to file the suit by impleading other persons,having similar rights to use the common road, since he hasindependent right, as per his sale deed.17. On the aforesaid circumstances, I answer the allegedsubstantial questions of law 4, 5 and 6 against the appellant and infavour of the respondent and hold that there is no real substantialquestion of law to be decided in the Second Appeal, since the Courtbelow has reversed the Judgment of the trial court, only based on theevidence, as per law and decreed the suit as prayed for. Hence, theSecond Appeal is liable to be dismissed.18. In the result, the Second Appeal is dismissed with costs.Consequently, connected M.P.No.1 of 2009 is also dismissed. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrartsvn https://hcservices.ecourts.gov.in/hcservices/ To1. The District Judge, Nilgris2. The Subordinate Judge, Nilgris.+1 cc to Mr.M.Jayaraman, Advocate, SR.No.51937+1 cc to Mr.A.Bobblie, Advocate, SR.No.52497 Judgment in S.A.No.839 of 2009NG {CO}TP/6.11.2009.