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2022 Supreme(Mad) 1588
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, J.
Berachah Prayer Group & Prayer House By its Secretary M. Kumar - Appellant
Versus
The Ashok Leyland Employees Co-operative Industrial Housing Society Ltd by its President Sir Ramaswami Nagar, Thiruvottriyur & Others - Respondent
SA.Nos. 269 & 270 of 2022 & CMP.Nos. 5626 & 5635 of 2022
Decided On : 04-04-2022
For the Appellant:M. Sundaramurthy, Advocate. For the Respondents:S.N. Ravicilandran, Advocate.
The court emphasized the importance of establishing entitlement to the relief of permanent injunction and upheld the Lower Appellate Court's decision on the relief for injunction.
Headnote:
Property Dispute - Civil Procedure Code - Section 100 - O.S.Nos.1216 & 1218/1997 - The court discussed the encroachment of government Poramboke lands by the appellant, the title of the respondent, and the relief of permanent injunction. The Lower Appellate Court held that the appellant is not entitled to the relief for injunction, and the respondent is entitled to a decree of permanent injunction. The court found no questions of law in both the appeals and dismissed them.
Fact of the Case:
The appellant in the suit filed for permanent injunction against the respondent, who had also filed a suit for permanent injunction against the appellant. The Trial Court found that the appellant had encroached into the property of the respondent and decreed the suit filed by the appellant. The Lower Appellate Court reversed the judgment and decrees of the Trial Court, holding that the appellant is not entitled to the relief of permanent injunction.
Finding of the Court:
The court found that the appellant had encroached upon government Poramboke lands and extended to the patta land of the respondent. The Trial Court erroneously held that the respondent is not entitled to a decree, and the Lower Appellate Court rightly held that the appellant is not entitled to the relief for injunction.
Issues: The issues revolved around the entitlement to the relief of permanent injunction for the appellant and the validity of the permanent injunction issued in favor of the respondent.
Ratio Decidendi: The court held that the appellant's encroachment onto the respondent's property was established, and the Trial Court's conclusion on the entitlement to a decree was erroneous. The Lower Appellate Court's decision on the relief for injunction was upheld.
Final Decision: The Second Appeals were found devoid of merits and dismissed. Consequently connected Civil Miscellaneous Petitions were closed.
JUDGMENT
(Common Prayer: Second Appeals filed under Section 100 of the Civil Procedure Code against the common judgments and decrees of the learned Subordinate Judge, Ponneri, passed common judgments and decrees in A.S.Nos.4 & 11/2011 dated 10.04.2019 by allowing the appeals and reversing the common decrees and judgments of the O.S.Nos.1216 & 1218/1997 passed by the learned District Munsif, Thiruvottriyur dated 04.06.2010.)
Common Judgment:
(1) The defendant in the suit in O.S.No.1216/1997 who is also the plaintiff in the suit in O.S.No.1218/1997 is the appellant in these second appeals.
(2) The respondent in S.A.No.269/2022 as plaintiff, filed the suit in O.S.No.1216/1997 for permanent injunction restraining the appellant in these second appeals from interfering with the peaceful possession and enjoyment of the respondent-s property described in that suit schedule.
(3) The appellant in these second appeals, as plaintiff in O.S.No.1218/1997, filed the suit for permanent injunction restraining the defendants, namely Thiru Audhimoolam, Thiru Elumalai, Thiru Radhakrishnan, Thiru Sundaramoorthy, and the respondent in S.A.No.269/2022 from interfering with their peaceful possession and enjoyment of item 1 in that suit schedule. Item 1, according to the appellant, is accessible only through item 2 and item 3 which are described roads. In the plaint, the appellant has admitted that they have encroached upon and taken possession of land, measuring an extent of 71,212 sq.ft. in S.No.618/G-3, described as suit 1st item which is classified as Kazhivelli Poramboke in Thiruvottiyur Village, Ambattur Taluk. The case of the appellant is that the necessary charges are being paid by the Trust to the Revenue Authority in respect of the building constructed in suit 1st item.
(4) Even before the appellant filed the original suit in O.S.No.1218/1997, the respondent in S.A.No.269/2022 had filed O.S.No.1216/1997 praying for permanent injunction against the appellant. The respondent in S.A.No.269/2022 is the 5th respondent in S.A.No.270/2022. The parties are referred to hereafter as per their ranks in S.A.No.269/2022.
(5) The suit property in O.S.No.1216/1997 is described as an extent of 2.72 acres comprised in S.A.No.618/A, at Sri Ramaswamy Mudhaliar Nagar, Thiruvottiyur Village. The suit property in this suit is a part of a larger property measuring to the extent of 10 acres and 17 cents purchased by the respondent under two Sale Deeds dated 24.09.1962 and 12.02.1963.
(6) Before the Trial Court an Advocate Commissioner was appointed. Though, the Trial Court found that the appellant has encroached into the property of the respondent, the respondent is not entitled to a decree for permanent injunction in respect of the entire suit property as the entire property is still under his possession and there is no cause of action. Finding that a portion of the suit property is being used as a passage for ingress and egress and in interest of the appellant conducting prayers, the Trial Court dismissed the suit filed by the respondent in O.S.No.1216/1997 and decreed the suit filed by the appellant in O.S.No.1218/1997. Aggrieved by the common judgment and decree of the Trial Court in both the suits, the respondent in S.A.No.269/2022 and the 5th respondent in S.A.No.270/2022 preferred appeals in A.S.No.4/2011 as against the judgment and decree in O.S.No.1216/1997 and A.S.No.11/2011 as against the judgment and decree in O.S.No.1218/1997.
(7) The Lower Appellate Court, while reversing the common judgment and decrees of the Trial Court, held that the appellant, as plaintiff, in the suit O.S.No.1218/1997, is not entitled to the relief of permanent injunction and the respondent in S.A.No.269/2022, who is the plaintiff in the suit in O.S.No.1216/1997, is entitled to a decree of permanent injunction. Aggrieved by the common judgment and decrees of the Courts below, the above Second Appeals are filed by the appellant.
(8) The learned counsel appearing for the appellant submitted
