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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
S. Govindarasu Udayar
Versus
Pattu & Others
S.A. No. 1812 of 1997 and CMP. No. 18324 of 1997
Decided On :Decided on : 23-02-1999
POSSESSION - LEASE AGREEMENT - EVIDENCE ACT, SECTION 13 - ADMISSIBILITY OF JUDGMENTS - INJUNCTION - MANDATORY INJUNCTION - PROHIBITORY INJUNCTION - NUISANCE - POSSESSION - LEASE AGREEMENT - EVIDENCE ACT, SECTION 13 - ADMISSIBILITY OF JUDGMENTS - INJUNCTION - MANDATORY INJUNCTION - PROHIBITORY INJUNCTION - NUISANCE
Fact of the Case:
Plaintiff filed a suit for mandatory injunction against the defendant, directing the removal of waste materials accumulated in the suit property and for permanent prohibitory injunction restraining the defendant from using the suit property for storing cow dung and for accumulation of night soil in the suit property.
Finding of the Court:
The court found that the plaintiff was in possession of the entire suit property and that the defendant was creating nuisance by storing and dumping waste materials in the suit property. The court also found that the judgments in O.S. 333 of 1988 and O.S. 334 of 1974 were admissible in evidence under Section 13 of the Evidence Act as assertions and are recognized.
Issues: 1. Whether the decision rendered by the lower appellate court be considered a Judgment satisfying Order 41, Rule 31, Civil Procedure Code especially when proper points for determination had not been framed and or findings rendered thereon as required under Law? 2.Whether the suit could be decreed on the basis that the defendant had not established his defence? 3.Whether the burden of proof had been rightly cast, in the instant case, on the defendant? 4. Whether any reliance could be placed on decisions of the Civil Court to which the appellant/defendant was not a party and whether the same would be binding? 5. Whether a suit could be decreed even though it is established by the Revenue Records referred to by the Advocate Commissioner that the entire suit property does not belong to the lessor of plaintiff? 6. Whether any act done or proceedings taken by a person or authority having no right, clothe the person claiming under the said act/proceeding with any right?
Ratio Decidendi: 1. The court held that the decision of the lower appellate court was a Judgment satisfying Order 41, Rule 31, Civil Procedure Code as it had framed proper points for determination and rendered findings thereon as required under Law. 2. The court held that the suit could be decreed on the basis that the defendant had not established his defence as he had not produced any evidence to substantiate his claim of possession. 3. The court held that the burden of proof was rightly cast on the defendant as he was the one who was claiming possession of the suit property. 4. The court held that the judgments in O.S. 333 of 1988 and O.S. 334 of 1974 were admissible in evidence under Section 13 of the Evidence Act as assertions and are recognized. 5. The court held that the suit could be decreed even though it was established by the Revenue Records referred to by the Advocate Commissioner that the entire suit property does not belong to the lessor of plaintiff as the defendant had not produced any evidence to substantiate his claim of possession. 6. The court held that any act done or proceedings taken by a person or authority having no right, does not clothe the person claiming under the said act/proceeding with any right.
Final Decision: The court dismissed the second appeal with cost.
Defendant in O.S. 353 of 1994 on the file of First Additional District Munsif Court, Pondichery is the appellant herein.
2. Suit filed by predecessor of respondents was one for decree for mandatory injunction against appellant, directing removal of waste materials accumulated in the suit property and for permanent prohibitory injunction restraining appellant from using suit property for storing cow dung and for accumulation of night soil in the suit property.
3. Parties herein will be referred to according to their rank in the suit.
4. Plaintiff and his family members are residing in the suit property from the year 1959 as lessees under Puduvai Saram Sri Muthuvinayagar Nagagmuthu Mariamman Devasthanam, after executing lease agreement dated 17.09.1959. In 1959, rent for suit property was fixed as Rs. 3/-. Subsequently, the rent was enhanced to Rs. 9/- and at present plaintiff is paying rent at the rate of Rs. 30/- per month. As per lease agreement, plaintiff is enjoying suit property to an extent of 30 feet north-south and 90 feet east-west. In the front portion, plaintiff had put up superstructure and the back portion was kept vacant and the same was used by plaintiffs family for ancillary purpose.
5. Defendant, who is residing adjacent to plaintiffs house, is disturbing possession of plaintiff by storing and dumping waste materials in suit property and is creating nuisance. During rainy season, entire vicinity becomes unhygeinic and atmosphere also gets foul smell. Even though plaintiff requested defendant not to create such nuisance, it is of no avail and hence plaintiff issued lawyers notice, which was not even replied. Second notice was also issued in 1994 for which also there was not positive result. It is for the above reasons plaintiff came to the court with above suit.
6. In the written statement filed by appellant, it is contended that himself and his forefathers have been living adjacent to suit property belonging to Sn Muthuvinayagar Nagamufhu Mariamman Devasthanam for the past more than 80 years by constructing a brick built house. It is his case that plaintiff is not in possession of entire area of 30 90? feet and he has been using the area of 20 30? feet from the time immemorial. He also denied having stored cow dung and night soil. According to defendant, plain tiff is not entitled to any relief.
7. Trial court, after raising issues, took oral and documentary evidence. Exs. A1 to A16 were marked on behalf of plaintiff and P.WS. 1 to 3 were examined. Defendant did notproduce any documentary evidence but examined himself as DW1. Another witness DW2 was also examined.
8. Trial Court, after discussing entire evidence, oral and documentary, came to the conclusion that plaintiff is in possession of entire property and defendant is creating nuisance. It also came to the conclusion that entire suit property i.e. , 30 90? feet is n physical possession of plaintiff. Trial Court relied on the Judgments in O.S. 333 of 1988 and O.S. 334 of 1974 as piece of evidence to come to the conclusion that plaintiff is in physical possession. They are Exs. A9 and A15 respectively. Apart from other evidence, taking into consideration the nature and physical features of property and also relying on Ex. A2, trial court held that the case of plaintiff is true. Consequently, a decree was passed in favour of plaintiff as prayed for.
9. Defendant preferred A.S. 148 of 1996 on the file of Principal Subordinate Judge, Pondicherry. First appellate court also reappreciated entire evidence and came to the conclusion that no ground is made out to interfere with the finding and conclusion of trial court. It dismissed the appeal. –
10. Concurrent Judgment of both the courts below is challenged in this Second Appeal. In the Memorandum of Appeal, following substantial questions of law have been raised:,
(1) whether the decision rendered by the lower appellate court be considered a Judgment satisfying Order 41, Rule 31, Civil Procedure Code es
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