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2024 Supreme(Mad) 480
IN THE HIGH COURT OF MADRAS
V. LAKSHMINARAYANAN, J.
Harak Chand J. Golecha - Appellant
Versus
Babulal B. Tater & Others – Respondents
Second Appeal No. 1299 of 2013
Decided On : 07-03-2024
For the Appellant : Satish Parasaran.
For the Respondents: Chanakyan.
IMPORTANT POINT
The central legal point established in the judgment is the demarcation of boundaries and the justification for granting mandatory injunction in cases of potential nuisance caused by a neighbor's actions.
Headnote:
Encroachment - Property Dispute - O.S.No.204 of 2002 - Section 100 of C.P.C. - Ex.A1, Ex.A2, Ex.B1, Ex.C1 to Ex.C6
Fact of the Case:
The plaintiff filed a suit for declaration, prohibition injunction, and mandatory injunction, alleging that the defendant encroached upon his property. The trial court granted the relief of declaration and prohibitory injunction but denied the mandatory injunction. The plaintiff appealed against the denial of mandatory injunction.
Finding of the Court:
The court found that the boundaries had been distinctly demarcated by constructing the compound wall and there was no encroachment by the defendant. The lower appellate court granted the relief of prohibitory injunction and dismissed the relief of mandatory injunction. The second appeal was dismissed, and the cross objection was allowed, setting aside the denial of mandatory injunction.
Issues: The issues revolved around the extent of the plaintiff's property, encroachment by the defendant, and the granting of injunctions.
Ratio Decidendi: The court held that the boundaries were clearly demarcated, and there was no encroachment by the defendant. It also emphasized that the denial of mandatory injunction was not justified, considering the potential nuisance caused by the defendant's actions.
Final Decision: The second appeal was dismissed, and the cross objection was allowed, setting aside the denial of mandatory injunction. The suit was decreed as prayed for, and the defendant was granted three months to remove the encroachments.
JUDGMENT :
(Prayer: Appeal filed under Section 100 of C.P.C. against the judgement and decree dated 24.06.2011 passed by the learned VII Additional City Civil Judge, Chennai in A.S.No.27 of 2010, confirming the judgment and decree dated 24.08.2009 passed by the learned XI Assistant City Civil Judge, Chennai in O.S.No.6711 of 2007.)
1. The second appeal arises out of the judgment and decree of the court of Principal District Judge at Salem in A.S.No.54 of 2011 dated 06.09.2012 in reversing the judgment and decree of the court of Subordinate Judge at Attur in O.S.No.88 of 2004 dated 15.09.2006.
2. The appellant before me is the defendant in the suit.
3. For the sake of convenience, the parties will be referred to as per their ranks in the original suit.
4. The plaintiff cameforward with OS.No.204 of 2002 for the relief of declaration, prohibition injunction and mandatory injunction. He alleged that the defendant had encroached upon his property and had put up construction and encroachment. The plaintiff had purchased the property on 07.03.1998. The extent of the property purchased was 2270 sq. ft. The plaintiff's vendor had retained 1510 sq. ft. As per the sale deed, a passage was provided from the Dharapuram Municipality road to have access to the plaintiff's property. The extent of the property was 46 feet North-South and 7 1/2 in breadth (East-West). The defendant is none else than the neighbour of the plaintiff. Since he had put up construction on the southern compound wall of the plaintiff and on the east west to an extent of 31 1/2 feet. He was constrained to file a suit for the aforesaid relief. The defendant on receipt of summons entered appearance and pleaded that the compound wall was within the boundary line of the defendants. As per the document, the plaintiff is entitled to only 6 feet and in fact, the owner, KS who had alienated the property in favour of the defendant had retained 1 1/2 feet. Since the plea was that the plaintiff had only 6 feet and the compound wall was 7 1/2 i.e., 1 1/2 the property of the defendant, the defendant pleaded that he has got every right to repair, maintain and white wash the well. He pleaded that there is no encroachment and prayed for dismissal of the suit.
5. On the basis of the above pleadings, the trial court framed the following issues: The plaintiff entered the witness box and examined one other witness, on this side. The defendant alone entered the witness box in order to substantiate his case.
6. The plaintiff filed Ex.A1 and Ex.A2 and the defendant filed only one document i.e., Ex.B1. Finding that the case requires report and plan of the Advocate Commissioner, the Commissioner was appointed for the purpose of inspecting the suit property. After inspection, he submit the plan and report i.e., Ex.C1 to Ex.C6.
7. After a detailed analysis of the merits of the case, the trial court came to the conclusion that the boundaries had been distinctly demarcated by constructing the compound wall and there is no question of encroachment by the party. Therefore, it granted the relief of declaration in favour of the plaintiff. However, it did not give a finding on the ownership of the Wall. Therefore, the relief of mandatory injunction having been denied by the learned Trial Judge, the plaintiff preferred an appeal in A.S.No.52 of 2008. It is pertinent to point out here that though the defendant could have preferred an appeal as against the declaration, he did not do so. Therefore, that portion of the decree has attained finality even before the trial court. as against the rejection of the prayer of prohibitory injunction and mandatory injunction, an appeal was filed before the lower appellate court which granted the relief of prohibitory injunction and dismissed the relief of mandatory injunction. Aggrieved by the same, the defendant is on appeal before me. As against the denial of mandatory injunction, the plaintiff had preferred cross objection in Cross Objection No.117 of 2013.
8. This Court o
