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2024 Supreme(Online)(MAD) 39393
HIGH COURT OF MADRAS
V. Bhavani Subbaroyan, J
N. Vedamurthy – Appellant
Versus
R. Thillaivanam – Respondent
S.A(MD)No.548 of 2005
For the Appellants/Petitioners: V.K. Vijayaraghavan
For the Respondents: P. Thiyagarajan
In a property dispute for mandatory injunction, a claim for demolition of neighboring construction fails if evidence and expert reports prove the structure is within the defendant's boundary; however, the court may order the closure of unauthorized access points created by the defendant.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Mandatory injunction - Allegations of encroachment and unauthorized construction - Court finds that the defendants constructed the new building within their own property boundaries and did not encroach upon the plaintiff's land - Commissioner’s reports substantiate the existence of a gap between properties and confirm that the wall in question was not built on the plaintiff's foundation. (Paras 17, 19, 20)
(B) Property Dispute - Access / Easement - Creation of unauthorized doorway - Defendants admitted to creating a doorway for construction access and acknowledged readiness to close it - Court grants mandatory injunction requiring defendants to close the doorway to restore the status quo, while denying the prayer for demolition of the defendants' structural construction. (Paras 22, 23)
Facts of the case:
The appellant (plaintiff) sought a mandatory injunction to demolish new construction made by the defendants, claiming it encroached upon an older wall foundation and that a doorway created by the defendants granted unauthorized access to his property. Trials courts dismissed the suit, while the first appellate court granted a permanent injunction regarding an existing wall but denied the prayer for demolition. The appellant filed this Second Appeal against the disallowed portions of the relief.
Findings of Court:
The court found no evidence of encroachment by the defendants. Based on the Commissioner's reports and physical measurements (26-3/4 feet for plaintiff vs. 25 feet for defendants), the new construction was deemed to be within the defendants' legal boundary. The court confirmed the relief for the existing wall and closing of the doorway but upheld the denial of the demolition claim.
Issues: Whether the appellant is entitled to a mandatory injunction for demolishing the respondents' new construction and why the appeal for restoration/damages should be granted.
Ratio Decidendi: Where factual evidence and Commissioner reports conclusively establish that new structures were erected within the defendant's own property boundaries without encroaching on the plaintiff's land, a claim for mandatory injunction to demolish the structure is not maintainable. However, unauthorized access points (doorways) created by a neighbor must be sealed to protect the plaintiff's property rights.
Result: Second Appeal dismissed.
| Table of Content |
|---|
| 1. overview of the property dispute and lower court proceedings. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. summary of appellate contentions and the factual background provided by parties. (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 3. court’s evaluation of evidence, commissioner reports, and final ruling on injunctions. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25) |
JUDGMENT
1.This Second Appeal has been directed against the Judgment and decree, dated 23.02.2005 passed in A.S.No.109 of 2004, on the file of the Sub Court, Periyakulam, wherein, the Judgment and decree, dated 09.12.2003 passed in O.S.No.41 of 2000 on the file of the Principal Sub Court, Kumbakonam, are modified.
2.The appellant herein as plaintiff instituted a suit in O.S.No.41 of 2000 on the file of the trial Court against the defendants seeking for the relief of mandatory injunction directing the defendants to demolish the new construction made in the old foundation of the plaintiff's compound wall and also to close the doorway of the defendants to have easy access to the plaintiff's property and restore the old compound wall to its original position or in the alternative, direct the defendants to pay the plaintiff a sum of Rs.30,000/- as the damages or cost for demolishing the existing new compound wall and new construction in the place of old compound wall and to restore the old compound wall to its original position and to restrain the defendants from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the remaining compound wall and to direct the defendants to pay the plaintiff the cost of the suit.
3.For the sake of convenience, the parties are referred to as, as described before the trial Court.
4.According to the plaintiff, the suit schedule property originally belonged to one Siva Subramaniya Mudaliyar and he sold the same to the plaintiff's father-A.S.Sabapathy @ Narthana Sabapathy Mudaiyar, who had purchased under a registered sale deed, dated 25.01.1954. After the death of the plaintiff's father, the plaintiff had filed a suit for partition in O.S.No.102 of 1983 on the file of the Sub Court, Kumbakonam and a final decree was passed on 27.04.1989 and the plaintiff got the plaint schedule property as Door No.14A measuring to an extent of 26-3/4 feet east-west and 196-3/4 feet north-south and the remaining extent was allotted to the share of his brother Nadavanandh with Door No.14. Adjacent to the plaintiff's house on the eastern side was the house belonged to one Subramaniya Mudaliyar. He had executed a will in respect of the said property in favour of his two daughters namely Janaki and Vedhavalli, the defendants 1 and 2 herein. The defendants 1 and 2 are to enjoy the property for their lives and are given a right to give the property to any of their male heirs. Janaki had no issues. Vedhavalli has four sons namely the defendants 3 to 6. Due to his avocation, the plaintiff resided in Guduvancheri and the property was situated at Papanasam. The plaintiff's property extends upto the vaikal on the southern side and the street on the northern side. In this vaikal, a bank was constructed by the plaintiff's father in June 1954. This serves as the southeastern boundary for the plaintiff's house and backyard. Since there was a dispute with regard to the plaintiff's property and the defendants' property, Mediation was held in June 1992 and in the Mediation, the Mediators requested the plaintiff to give 1-1/2 feet in the south eastern side to the defendants and the plaintiff had also agreed for the same. The plaintiff has raised a wall. The plaintiff had leased out his house to a tenant. Taking advantage of the absence of the plaintiff, the defendants have high-handedly and illegally put up a doorway on their own western wall and demolished the compound wall to a length of 40' and constructed a new house and demolished a further 32-1/2' and constructed a new compound wall and remaining compound wall to an extent of
