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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
Sivaprakasam – Appellant
Vs.
Minor Venkatesan rep. by father and next friend Bhaskaran – Respondents
S.A.No.2306 of 2004 and C.M.P.No.109 of 2011
Decided On : 08.07.2015
Penal Code, 1860 – Section 354 – SC/ST (PA) Act – Section 3 – Code of Criminal Procedure, 1973 – Sections 320, 482 – Code of Civil Procedure, 1908 – Section 11 – Doctrine Of Acquiescence – Second appeal arises out of the judgment and decree dated 26.03.2004 in A.S.No.153 of 2003 on the file of the Principal Sub-Court, Mayiladuthurai, confirming the judgment and decree in O.S. on the file of the Principal District Munsif Court, Mayiladuthurai. – When the plaintiff had allowed the defendant to put up superstructures in the suit properties whether the lower appellate Court erred in law in holding that the defendant is not entitled to invoke the doctrine of acquiescence? – When the plaintiffs case is that B to D schedule properties were not let out to the defendant and in the absence of any proof for his title to the same, whether lower appellate Court erred in law in decreeing the suit in entirety? –Whether the principles of Resjudicata would apply in view of the judgment rendered by our High Court under Ex.A2? – Held, When the Court taking cognizance of such compromise relieving the parties from the panks of criminal proceedings. Subsequently, Larger Bench (3 Judge) of the Honble Supreme Court has reviewed the Gyan Singh case and considered the position of law in the matter of compromise in a non compoundable offence with reference to section 482 Cr.P.C. and section 320(8) of Cr.P.C. and concluded that inherent power of the Court under section 482 Cr.P.C. is independent. Section 482 Cr.P.C. is based on the principle ex debito justitiae. – Courts are intended for advancing justice. Courts under section 482 Cr.P.C. to do justice and undo injustice. As already noted, even before the Gyan Singh case, in 1973, 2008 and also recently, the Honble Supreme Court while upholding the conviction with a view to maintain peace and communal harmony reduced the sentence to the period already undergone. – Single Judge of this Court (Honble Mr.Justice T.Sudanthiram) in Anbu vs. Inspector of Police, Villupuram in Criminal Appeal in Cr.No.268 of 2010 on 8.10.2012 where conviction has been recorded under section 3(1)(x) of SC/ST (PA) Act noticing the compromise between the parties and to maintain communal harmony permitted compounding of the offence. – Criminal appeal Partly Allowed
The second appeal arises out of the judgment and decree dated 26.03.2004 in A.S.No.153 of 2003 on the file of the Principal Sub-Court, Mayiladuthurai, confirming the judgment and decree dated 10.03.2003 in O.S.No.207 of 1999 on the file of the Principal District Munsif Court, Mayiladuthurai.
2.The averments made in the plaint are as follows:-
(i)The defendant is running a flour mill in the building owned by the plaintiff situated in 'A' schedule property by paying Rs.300/-per month as per the agreement dated 04.10.1994. The plaintiff has filed a suit in O.S.No.171 of 1998 on the file of the District Munsif Court, Mayiladuthurai for a direction to the defendant to pay a sum of Rs.10,500/-towards rent from 01.02.1995 to 31.12.1997 and that suit is pending. After filing that suit, the defendant has paid part payment and then the defendant defaulted in his payment from 01.01.1998. Moreover, the defendant constructed a mill by encroaching upon the land of the plaintiff in A schedule property without obtaining permission from the Commissioner, Kuthalam and the same is 'B' schedule property.
(ii)Further, the plaintiff filed a suit in O.S.No.915 of 1995 for declaration that the defendant is not entitled to obtain license from the Commissioner, Kuthalam to run the business in the 'B' schedule property and to restrain the Commissioner, Kuthalam to give license to the defendant and that suit was dismissed on 27.01.1998, against which, the plaintiff has filed A.S.No.56 of 1998 and the same was allowed on 22.09.1998.
(iii)A hut put up by the defendant on the southern side of 'A' schedule property is mentioned as 'C' schedule property. A hut, tank, toilet and motor put up by the defendant on the northern side of 'A' schedule property is mentioned as 'D' schedule property.
(iv)Since the defendant encroached upon the properties of the plaintiff, the plaintiff constrained to file the suit for the following reliefs:
(a)direction to the defendant to hand over 'A' schedule property to the plaintiff;
(b)direction to the defendant to hand over 'B' to 'D' schedule properties to the plaintiff after removing the hut, tank and motor put up by the defendant;
(c) direction to the defendant to pay the rent as mentioned in the plaint;
(d)direction to the defendant to pay the compensation to the plaintiff from the date of filing the plaint to the date of realisation;
3.The gist and essence of the written statement filed by the defendant are as follows:
(i)The defendant is the tenant of the ground site belonging to the plaintiff. But the entire property which is now under the occupation of the defendant was given on lease to the defendant. The defendant could not have established his mill in 'A' schedule property alone. On the north of plaintiff's property, there is a vaikal poramboke. That poramboke property was annexed by the defendant. As per the lease arrangement, the defendant has obtained electric service connection at huge costs. The defendant never encroached any of the properties of the plaintiff. If the mill and machineries are to be removed, huge loss would be caused to the defendant. In the interest of justice, the plaintiff has to be directed to convey the ground site at a reasonable price. The damages claimed by the plaintiff is excessive and without any basis. Therefore, he prayed for dismissal of the suit.
4.The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1, D.W.1 and Exs.A1 to A4, decreed the suit. Aggrieved against the judgment and decree passed by the trial court, the defendant preferred an appeal in A.S.No.153 of 2003 on the file of the Principal Sub-Court, Mayiladuthurai.
5.The learned First Appellate Court has considered the arguments advanced on either side, framed necessary point for consideration, confirmed the Judgment and Decree passed by the Trial Co
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