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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C. SARAVANAN, J.
S. Muthusamy – Appellant
Versus
K. Ramalingam and Another – Respondents
S.A. Nos. 81, 82 of 2016
Decided On : 16-08-2021
Civil Procedure Code, 1908 - Section 100 - permanent injunction restraining - speaceful possession and enjoyment of the suit “A” Schedule Property and for a mandatory injunction directing contesting respondent to remove the encroachment - disturbing peaceful possession over the suit schedule property - First Appellate Court has dismissed appeals filed by the appellant against two separate Judgments and Decree both passed by the District Munsif Court, Pollachi - appellant was the defendant in O.S. No. plaintiff in O.S. No. referred to as appellant only first respondent in S.A. No. respondent in S.A. No. was the plaintiff in O.S. No. and the sole defendant in O.S. No. (hereinafter referred to as contesting respondent only - Second respondent in S.A. No. was the second defendant – Held, Appellate Court that the offending construction put by the contesting respondent was on the appellant’s land - Construction put up by the contesting respondent during pendency of O.S. No. was to be subject to the final outcome of the final proceedings in the respective proceedings - Contesting respondent ought to have adopted a hands-off approach and awaited for the outcome of litigation in O.S. No. - Construction put by contesting respondent pending litigation cannot and will not present as a fait accompli to the disadvantage of the appellant. Having taken a risky construction, the contesting respondent cannot get any protection as construction was not a bona-fide construction - Contesting respondent was not entitled to put up the offending constructions during the pendency of O.S. No. without establishing right over disputed area. The issue in O.S. No. was whether the appellant was justified in putting up a compound wall on the eastern side of his property the western side of contesting respondent’s property - Second Appeals are allowed
JUDGMENT :
C. SARAVANAN, J.
Prayer: Second Appeals filed under Section 100 of Civil Procedure Code, 1908, against the Judgments and Decrees dated 18.08.2011 passed by the Subordinate Court, Pollachi in A.S. Nos. 32 and 33 of 2010 confirming the Judgments and Decrees dated 05.07.2010 passed by the District Munsif Court, Pollachi in O.S. No. 294 of 2002 and O.S. No. 490 of 2007.
1. By this common Judgment, both the Second Appeals are being disposed.
2. At the time of admission of these Second Appeals, the following substantial questions of law have been framed for being answered:
| S.A. No. 81 of 2016 | S.A. No. 82 of 2016 |
| Whether the Courts below is right in coming to the conclusion and following the suit filed by the first respondent when it clearly established that there is encroachment by the first respondent in the appellant? | Whether the Lower Appellate Court is right in dismissing the appeal preferred by the appellant on the point of limitation, while coming to conclusion that the finding of the trial court is not correct? |
3. These Second Appeals have been filed against two separate impugned Judgments and Decrees both dated 18.08.2011 passed by the Subordinate Court, Pollachi (hereinafter referred to as First Appellate Court) in A.S. Nos. 32 and 33 of 2010.
4. By the impugned Judgments and Decrees, the First Appellate Court has dismissed the appeals filed by the appellant against two separate Judgments and Decree both dated 05.07.2010 passed by the District Munsif Court, Pollachi (hereinafter referred to as Trial Court) in O.S. No. 294 of 2002 and O.S. No. 490 of 2007.
5. The Trial Court decreed the suit in O.S. No. 294 of 2002 filed by the contesting respondent and dismissed the suit in O.S. No. 490 of 2007 filed by the appellant vide its separate Judgments and Decrees both dated 05.07.2010.
6. Aggrieved by the same, the appellant has filed A.S. Nos. 32 and 33 of 2010 before the First Appellate Court. By the separate impugned Judgments and Decrees both dated 18.08.2011, both the appeals were dismissed by the First Appellate Court. It is under these circumstances, the present Second Appeals have been filed.
7. The appellant was the defendant in O.S. No. 294 of 2002 and the plaintiff in O.S. No. 490 of 2007 (hereinafter referred to as appellant only). The first respondent in S.A. No. 81 of 2016/sole respondent in S.A. No. 82 of 2016 was the plaintiff in O.S. No. 294 of 2002 and the sole defendant in O.S. No. 490 of 2007 (hereinafter referred to as contesting respondent only). The second respondent in S.A. No. 81 of 2016 was the second defendant in O.S. No. 294 of 2002 (hereinafter referred to as second respondent only).
8. The above suits were filed for the following relief:
| O.S. No. 294 of 2002 (filed by the contesting respondent) | O.S. No. 490 of 2007 (filed by the appellant) |
| For a permanent injunction restraining the defendants with the plaintiff’ speaceful possession and enjoyment of the suit “A” and “B” schedule property. | For a permanent injunction restraining the defendant and his men in interfering with the plaintiff’ speaceful possession and enjoyment of the suit “A” Schedule Property and for a mandatory injunction directing the defendant to remove the encroachment namely suit “B” schedule property from the suit “A” schedule property. |
9. O.S. No. 294 of 2002 was filed by the contesting respondent and was resisted by the appellant and O.S. No. 490 of 2007 was filed by the appellant for a permanent injunction to restrain the contesting respondent and his men or agent from interfering with the appellant’ speaceful possession and enjoyment of the suit “A” Schedule Property and for a mandatory injunction directing the contesting respondent to remove the encroachment, namely, suit “B” schedule property from the suit “A” schedule property.
10. The facts are not in disp
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