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2015 Supreme(Mad) 527
HIGH COURT OF JUDICATURE AT MADRAS
R. MAHADEVAN, J.
Sengodan – Appellant
Versus
Manickam – Respondent
S.A. No. 1775 of 2003 & CMP. No. 16228 of 2003
Decided On : 28-01-2015
Advocate Appeared:
For the Petitioner:Fr.A. Xavier Arul Raj, Advocate.
For the Respondent:C.S.K. Sathish, Advocate.
Headnote:
Civil Procedure Code - Order 1 - Rule 8 - Permanent injunction - Possession and enjoyment of his house – Claim of compensation - Plaintiff had occupied a vacant site in which he had put up a thatched shed and thereafter he constructed a tiled house bearing Door - Plaintiff has been paying house tax till date - Government had issued HSD Patta in name of plaintiff with specific boundaries - A public road measuring feet is running near house of plaintiff and there is no other way to reach plaintiffs house - Defendants house is situated in eastern side of plaintiffs house and he tried to encroach suit pathway and put up a construction therein - Defendant has no manner of right title or interest over suit pathway at any point of time – However defendant is illegally interfering with peaceful enjoyment of suit pathway - Defendant tried to destroy suit pathway along with his men which was thwarted – Hence present suit for permanent injunction – Held, From evidence of D.W.2 and on basis of Commissioners report Ex.C.1 this Court finds that there is pathway and such pathway is being used by plaintiff and since defendant has interfered with peaceful enjoyment of such suit pathway plaintiff has filed present suit seeking permanent injunction – However ultimately on an analysis of oral and documentary evidence there is no proof to show correct measurement of suit pathway and therefore trial Court has decreed suit as prayed for whereas first appellate court considering space available in front of house of plaintiff has come to conclusion that there should be feet breadth and feet length and accordingly it has modified judgment and decree of trial court - In absence of any documentary evidence to show measurement of pathway and land being it is not proper to decide measurement of suit pathway – However Advocate Commissioner in his report has stated that there is three feet vacant land on south of defendants house and same is running east west and it is having length of feet - This is only clear and categorical documentary evidence in respect of suit pathway - In absence of any evidence both oral and documentary even on either side this Court has to rely solely on report of Advocate Commissioner and that too in absence of any objection to that report and therefore based on report and plan of Advocate Commissioner this Court finds that permanent injunction could be granted only in respect of suit pathway measuring feet breadth and feet length – Accordingly permanent injunction is granted only in respect of suit pathway measuring feet breadth and feet length - Appeal is allowed
1. The judgment and decree, dated 16.6.2003 and made in A.S.No.50 of 2001 on the file of the learned Subordinate Judge, Sankari, confirming the judgment and decree dated 28.3.2001 and made in O.S.No.96 of 1998 on the file of the learned District Munsif, Sankari, are under challenge in this memorandum of second appeal.
2. The appellant is the defendant in the suit in O.S.No.96 of 1998, whereas the respondent is the plaintiff.
3. For easy reference and for the sake of convenience, the appellant may hereinafter be referred to as the defendant and the respondent be referred to as the plaintiff wherever the context so require.
4. The necessary facts leading to the filing of the suit are as under:-
a. The plaintiff had occupied a Natham vacant site 35 years ago, in which, he had put up a thatched shed and thereafter, he constructed a tiled house, bearing Door No.105. The plaintiff has been paying house tax till date. The Government had issued HSD Patta in the name of the plaintiff with specific boundaries. A public road measuring 13 x 60 feet is running near the house of the plaintiff and there is no other way to reach the plaintiff's house.
b. The defendant's house is situated in the eastern side of the plaintiff's house and he tried to encroach the suit pathway and put up a construction therein. The defendant has no manner of right, title or interest over the suit pathway at any point of time. However, the defendant is illegally interfering with the peaceful enjoyment of the suit pathway.
c. On 22.4.1998, the defendant tried to destroy the suit pathway along with his men, which was thwarted. Hence, the present suit for permanent injunction.
5. The defendant resisted the suit by filing written statement contending that though the plaintiff had stated that he occupied the house site 35 years ago, he produced the house tax receipts only from the year 1981 and there is no pathway running east-west direction in front of the plaintiff's house. It is also stated that the plaintiff has one thatched shed and one terraced building with five feet pathway on its east and that a common pathway is running on the northern side of the plaintiff's house, which is facing southern side. The defendant has only four feet pathway in front of his house, which is used as entrance to his house. The rough plan enclosed with the counter may be treated as part and parcel of the written statement. The plaintiff has fraudulently obtained the HSD Patta, which is not connected with the suit property. Hence, the defendant prayed that the suit may be dismissed.
6. Based on the material proposition of facts arising from the pleadings of the parties to the suit, the trial Court has formulated as nearly as three issues for better adjudication of the suit. In order to substantiate their respective cases, both the plaintiff and the defendant were directed to face the trial. Accordingly, the plaintiff has examined himself as P.W.1 and during the course of his examination Exs.A1 and A2 were marked. On the other hand, the defendant has examined himself as D.W.1 and one more witness was examined and during the course of their examination Exs.B1 to B3 were marked. That apart Exs.C1 and C2 were also marked.
7. On evaluating the evidences both oral and documentary, the trial court had proceeded to decree the suit.
8. Having been aggrieved by the impugned judgment and decree of the trial Court, dated 28.3.2001, the defendant had preferred an appeal in A.S.No.50 of 2001 on the file of the learned Subordinate Judge, Sankari.
9. That appeal was partly allowed modifying the judgment and decree of the trial Court.
10. Being not satisfied with the judgment and decree of the first appellate court, the present second appeal has been filed by the defendant.
11. The second appeal has been admitted on the following substantial question of law:-
" Whether the lower courts went wrong in decreeing the suit in the absence of any documentary or independent oral evidence to prove the claim of th
