Narayanasamy Meistry v. Muthulakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 27.09.2018 (Thursday) PRONOUNCED ON : 25.10.2018 (-do-)

CORAM

THE HONOURABLE MR. JUSTICE T.RAVINDRAN S. A.No.432 of 2015

1. Narayanasamy Meistry

2. N.Sridhar Babu (Rajeswari (Deceased) .. Appellants 1 & 2/Defendants1 7 2

3. Thaiyalnayagi .. 3rd Appellants/LR of the Deceased Defendant -3 Vs.

Muthulakshmi ..Respondent/Plaintiff (Case title accepted vide order of Court dated 28/04/15 made in MP No.1/15 in SA.Sr.No.8716/014) Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 04.10.2013 passed in A.S.No.45 of 2012 on the file of the Subordinate Judge, Nagapatinam, confirming the judgment and decree dated 01.04.2011 made in O.S.No.143 of 2002 on the file of the District Munsif Court, Nagapatinam.

For Appellants : Mr.T.A.Shagul Hameed For Respondent : Mr.N.Sathiamoorthi

JUDGMENT

Challenge in this second appeal is made to the judgment and decree 04.10.2013 passed in A.S.No.45 of 2012 on the file of the Subordinate Court, Nagapatinam, confirming the judgment and decree dated 01.04.2011 passed in O.S.No.143 of 2002 on the file of the District Munsif Court, Nagapatinam.

2. The second appeal has been admitted on the following substantial questions of law.

"a) Whether a decree for injunction can be granted based on a biased report of the Advocate Commissioner?

b. When the Advocate Commissioner, DW2 himself had admitted that he is unaware of the extent of the suit property, are the courts below justified in relying on his report and decree the suit?

c) When the plaintiff had failed to disclose the cause of action for institution of the suit, are the courts below justified in decreeing the suit?

3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

4. Materials placed on record go to show that the partition suit in O.S.No.289/1980 had been pending between the parties and it is seen that the following the decree passed in the abovesaid suit, the plaintiff had also levied Execution in E.P. No.3 of 1998 and obtained the possession of the suit property through the court process and the same could be evidenced from the documents marked as Exs. A2 to A4. Thus, it is found that the plaintiff had already been put in the possession of the suit property following the decree passed in the abovesaid suit and by way executing the abovesaid decree in EP No.3 of 1998.

It is stated by the plaintiff that after taking possession of the suit property through the court process, she had put up a fence in between the suit property and the property belonging to the defendants, however, the defendants without any authority had unlawfully trespassed into a portion of the suit property belonging to the plaintiff and put up the construction in the nature of a septic tank by encroaching into the suit property of an extent as detailed in the plaint and accordingly the plaintiff has come forward with the present suit seeking for the reliefs of permanent injunction and mandatory injunction.

5. The abovesaid plaintiff's case had been resisted by the defendants contending that there is no encroachment as sought to be made out by the plaintiff and it is further stated that the

partition decree passed in O.S.No.289/1980 is still an issue before the appeal proceeding in the High Court and therefore not attained any finality and also contended that the case of the plaintiff that the defendants had unlawfully encroached into the suit property and put up a septic tank as detailed in the plaint is false and accordingly sought for the dismissal of the plaintiff's suit.

6. Based on the materials placed on record, it is found that the present suit laid by the plaintiff had been earlier dismissed and on appeal, it is seen that the first appellate court had remitted the matter back to the trial court for a fresh consideration of the issues involved in the matter and also directed that the suit property should be inspected by an advocate commissioner with the help of the surveyor and accordingly, on the matter being remitted back to the trial court, it is found that, as per the orders of the court, the advocate commissioner had inspected the suit property along with the surveyor and filed his report and plan marked as Exs.C3 and C4.

7. As above noted, as far as the decree passed in O.S.No.289/1980, the contention put forth by the defendants that the same is still under challenge in the High Court in A.S.No.1279/1994, as such, cannot be countenanced, considering the fact that the abovesaid first appeal pending before the High Court had come to be disposed of on 25.03.2008 and the same could be evidenced from the judgment and decree passed in the appeal suit on the file of the High Court marked as Exs.A14 and A15. The judgment and decree passed in A.S.No.1279/1994 had ended against the case of the defendants. Accordingly, it is seen that the plaintiff having taken the possession of the suit property following the execution of the decree obtained by her in O.S.No.

289/1980 and the factum of the plaintiff having taken the possession of the suit property through the court process not having been controverted by the defendants as such and accordingly the plaintiff is also found to be in the possession and enjoyment of the suit property following the same, as rightly determined by the courts below, the defendants are not entitled to disturb the plaintiff's possession and enjoyment of the suit property obtained by her as per the decree passed in O.S.No.289/1980 through the court process. Thus, it is found that the courts below had rightly granted the relief of permanent injunction in favour of the plaintiff as prayed for.

8. As above noted, it is the case of the plaintiff that the defendants had unlawfully trespassed into the portion of the suit property, which had been in the possession and enjoyment of

the plaintiff and put up the septic tank as detailed in the plaint and though the abovesaid case of the plaintiff had been refuted by the defendants, considering the commissioner's report and plan marked as Exs.

C3 and C4 coupled with the evidence of the advocate commissioner examined as DW2, wherethrough, it has been brought home that the defendants have encroached into the portion of the suit property and put up the septic tank as detailed in the report and plan as well as spoken to by the advocate commissioner during the course of his evidence and despite the cross examination of the advocate commissioner by the defendants, nothing having been culled out from his mouth to buttress the defence version of the defendants and on the other hand, the advocate commissioner having reiterated the encroachment made by the defendants into the suit property, which had been in the possession and enjoyment of the plaintiff following the court process in E.P.No.

3/1998 and though it is noted that the defendants had put forth objection to the advocate commissioner's report and plan, however, the defendants having not placed any material worth acceptance to sustain the objections put forth by them, accordingly, the courts below, on an analysis of the entire materials placed on record, particularly, the commissioner's report and plan and the evidence of the advocate commissioner found that the defendants had, without any authority, trespassed into the suit property, which had been allotted to the plaintiff and unlawfully put up the septic tank without any entitlement and thereby found to have rightly granted the relief of mandatory injunction in favour of the plaintiff as prayed for.

9. In the light of the above discussions, when the materials placed on record go to show clearly that the defendants had encroached into the property and put up the septic tank and the evidence of the advocate commissioner examined as DW2, when seen wholly, clearly go to establish the encroachment made by the defendants as pointed out by the courts below and when the defendants have not shown their entitlement to the portion of the suit property wherein they had raised the septic tank, in such view of the matter, it is found that the courts below are wholly justified in upholding the plaintiff's case, based on the proper analysis of the materials placed on record and rightly noting that the plaintiff had been necessitated to lay the suit on the abovesaid cause of action and accordingly granted the reliefs in favour of the plaintiff.

10. Resultantly, the substantial questions of law formulated in this second appeal are accordingly answered in favour of the the plaintiff and against the defendants.

11. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.

Sd/- Assistant Registrar //True copy// Sub Assistant Registrar bga To

1. Subordinate Court, Nagapatinam

2. District Munsif Court, Nagapatinam.

3. The Section Officer, V.R. Section, High Court, Madras.

+1cc to M/s.T.A.Shagulhameed, Advocate SR.No.72868 +1cc to Mr.N.Sathiamoorthi, Advocate SR.No.73212 S. A.No.432 of 2015 RSI(CO) GMY(20/12/2018)