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Judges : K.P.RADHAKRISHNA MENON
KUNNATHU AUTOMOBILES - Appellant
Versus
MUTHU AYYAN CHETTIAR - Respondent
Case No : S.A. No. 266 of 1980-A
Decided On : 01/28/1986
Advocates Appeared :
V.P. Mohankumar; For Appellant M.K. Narayana Menon; For Respondent
acquiescence - Property Dispute - Specific Relief Act, Section 41(g), Section 41(i) - The court discussed the principle of acquiescence and its application in the context of the equitable relief of mandatory injunction. It cited Section 41(g) of the Specific Relief Act, which provides that an injunction cannot be granted to prevent a continuing breach if the plaintiff has acquiesced in it. The court also referred to the maxim that 'he who seeks equity, must do equity' as envisaged in Section 41(i), which disentitles a person from getting equitable relief unless they establish that their own acts and dealings in the matter have been fair and honest.
Fact of the Case:
The suit was for a mandatory injunction directing the defendants to cut and remove the rafters and reapers of their building protruding into the plaintiff's property. The plaintiff had initially consented to the construction of the building by the defendants but later sought the removal of the protruding elements.
Finding of the Court:
The court found that the plaintiff's conduct, including acquiescence in the construction of the building, disentitled them from the reliefs prayed for in the suit. It held that the plaintiff was not entitled to any of the reliefs sought.
Issues: The issues included whether the suit was liable to be dismissed based on the principle of acquiescence and whether the suit was barred by limitation.
Ratio Decidendi: The court applied the principle of acquiescence and cited Section 41(g) and Section 41(i) of the Specific Relief Act to determine that the plaintiff's conduct precluded them from obtaining the equitable relief of mandatory injunction.
Final Decision: The judgment and decree of the court below were set aside, and the second appeal was allowed with no order as to costs.
1. The first defendant is the appellant.
2. The suit out of which the appeal arises, was for a mandatory injunction directing the defendants to cut and remove the rafters and reapers of their building protruding into the plaintiff's property.
3. The plaint property is a portion of a larger property which originally, belonged to one Ammalu Amma. By Ext. P1 partition, the property was divided into 3 portions. They are the properties described in A, B and C schedules attached to Ext. P1. B schedule is the plaint property. As per Ext. P1 the extent of the B schedule property is 51/3 cents. The defendants purchased A schedule property and constructed a building on the property in 1964.
4. The plaintiff caused a lawyer notice to be served on the defendants on 20-6-1973 calling upon them to cut and remove the projecting rafters and reapers. The defendants failed to comply with the request which resulted in the filing of the suit.
5. The courts below have concurrently held that the reapers and rafters of the building of the defendants do project into the property of the plaintiff and therefore they are liable to be cut and removed. The courts below consequently have granted the decree, prayed for in the plaint.
6. The learned counsel for the appellant has raised two contentions; (1) The suit is liable to be dismissed on the short ground that the plaintiff, inasmuch as he has acquiesced in the construction of the building and thereafter allowed the defendant to occupy the building without raising any objection for 10 years, cannot maintain the suit and (2) In any event, the suit is barred by limitation as the same was filed after 10 years of the offending construction.
7. While considering point No. 1, it is necessary to bear in mind the facts narrated in this regard in the written statement. The building was constructed with the consent of the plaintiff. The construction was completed in consultation with the plaintiff. The plaintiff knew that the building was constructed on the property in the exclusive possession of the defendants. The plaintiff by his conduct has made it clear that he had no objection in the building being constructed in the manner in which it was constructed and therefore after 10 years of the construction he shall not be permitted to rake up a case that the reapers and rafters of the building project into his property and therefore the same should be removed. He has further stated that to the knowledge of the plaintiff, he had made arrangements to collect the eaves drop from the building right from the day when the construction of the building was completed. In these circumstances, the suit is liable to be dismissed, he submits.
8. The learned counsel for the plaintiff submits that the appellant had not raised the contention based on the principle of acquiescence before the courts below and therefore he shall not be allowed to raise the same for the first time in the second appeal. In short, the learned counsel submits that the appellant has not raised any such contention in the written statement and therefore the above argument of the learned counsel for the appellant is liable to be rejected.
9. On going through the written statement, I am of opinion, that the defendant has definitely pleaded such a case. Not only that, he had also pressed into service the said pleadings before the courts below. The appellate court, in any event, has considered this point; or else there was no need for the appellate court to discuss the law pertaining to this aspect in Para.7 of the judgment thus:
"There is of course some delay with the plaintiff since the plaintiff could have filed the suit much earlier, but I am not of opinion that the delay is so much as to deprive the plaintiff of the remedy which is otherwise available to him, and according to the plaintiff he bad been objecting to this from the very beginning and the defendant had promised to set right the same and he waited considering the position and status of the d
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