Jayaraman S/O.V.Nageswara Rao. v. L.Babu@ Comez,S/O.Leon

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON :08.06.2018 PRONOUNCED ON:13.06.2018

CORAM:

THE HON'BLE MR.JUSTICE T.RAVINDRAN S.A.No. 1828 of 2004 Jayaraman ... Appellant/ Defendant in O.S/Appellant Vs.

L.Babu @ Gomez ... Respondent/Plaintiff/ in O.S/Respondent Prayer:

Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 19.11.2003 passed in A.S.No.30 of 2003 on the file of the District Judge of Nilgiris at Ootacamund, confirming the judgment and decree dated 30.01.2003 passed in O.S.No.165 of 2001 on the file of the District Munsif of Ootacamund.

For Appellant : Mr.K.Kingston Jerald for M/s.S.K.Rakhunathan For Respondent : Mr.S.Elambarathi

J U D G M E N T

In this second appeal challenge is made to the judgment and decree dated 19.11.2003 passed in A.S.No.30 of 2003 on the file of the District Judge of Nilgiris at Ootacamund, confirming the judgment and decree dated 30.01.2003 passed in O.S.No.165 of 2001 on the file of the District Munsif Court, Ootacamund.

2. The parties are referred to as per the rankings in the trial court.

3. Suit for permanent injunction.

4.The case of the plaintiff in brief is that the suit property measuring an extent of 0.03 acres comprised in Survey No.1672/1A1B1, New R.S.No.D/5/13 is bounded by specific

boundaries and it is stated that on the southern side, the land belonging to the defendant is located and the plaintiff had put up a temporary shed in the suit property for which assessment was made and the plaintiff has been paying tax to the Municipality since then and the plaintiff in order to put up a permanent structure in the suit property had obtained sanction and plan from the Municipality and accordingly started putting up construction in the suit property and the defendant, according to the plaintiff, is attempting to encroach into the suit property and thereby making arrangements to put up wall on the southern side of the suit property without any authority and thereby prevent the plaintiff from putting up the construction and the defendant is not entitled to put up any wall in the land belonging to the plaintiff and in asmuch as the infraction of the defendant persisted, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.

5.The case of the defendant in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts. The property lying to the south of the suit property does not belong to the defendant, but belongs to the defendant's wife and the defendant's wife is the owner of R.S.Nos.D/5/14 and D/5/15 and according to the defendant, the plaintiff has deliberately violated the plan issued to him and putting up construction in his property in utter violation of the approved plan and the plaintiff has put up a shopping complex with the residential construction on the rear side and without leaving any space on the southern side.

The plaintiff had put up the construction and thereby according to the defendant, the southern wall of the plaintiff is slightly encroaching into the defendant's wife's property and it is false to state that the defendant had attempted to put up wall in the plaintiff's land and on the other hand, it is only the plaintiff who had encroached slightly into the defendant's wife's property and thereby attempting to put up the illegal construction and only with a view to prevent the defendant and his wife from approaching the concerned authorities as regards the unlawful construction put up by the plaintiff in his property and to stifle the same, according to the defendant, he had come forward with the false suit as if the defendant had attempted to encroach into his property for the purpose of raising a wall and in this connection, the defendant's wife had already sent a complaints to the authorities concerned with reference to the plaintiff's illegal construction and the plaintiff had constructed the building in his property in utter violation of the provisions of the relevant acts and the approved plan and hence the plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed.

6.In support of the plaintiff's case, P.Ws.1 to 3 were examined. Exs.A1 to A 12 were marked. On the side of the defendant, D.W.1 was examined. Exs.B1 to B5 were marked. Exs.C1 and C2 were also marked.

7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiff's case and accordingly decreed the suit as prayed for. Impugning the same, the present Second Appeal has been preferred. 8.At the time of admission of the second appeal the following substantial questions of law were formulated for consideration.

1. Whether the judgment and decree of the Courts below are vitiated by their failure to consider the pendency of suit O.S.No.76 of 2002, a comprehensive suit filed by the defendant's wife against the plaintiff, Commissioner of Municipality, and the Collector of Nilgiris with regard to the disputed portion of the suit property?

2. Whether the Commissioner's report alone should be the basis for the grant of a decree in favour of the plaintiff especially when objections have been raised to the Commissioner's report and the Commissioner not being examined as a witness?

9.The plaintiff claims title to the suit property measuring an extent of 0.03 acres of land in Survey No.1672/1A1B1, R.S.No.D/5/13 within the specific boundaries, by way of a sale deed dated 11.12.1981, the certified copy of which document has been marked as Ex.A1. It is further found that on the southern side of the suit property, the property belonging to the defendant's wife is located. As regards the above position, there is no dispute. It is the case of the plaintiff that originally he had put up a temporary shed in the suit property and assessment had been made and he had paid taxes to the Municipality which has been buttressed by Exs.A2 and A3.

It is the further case of the plaintiff that he had obtained approved plan from the Municipality for putting up a permanent structure in the suit property and accordingly put up the construction in the suit property. While so, it is stated that the defendant attempted to put up a wall in the suit property belonging to the plaintiff without any authority and hence according the plaintiff, he has been necessitated to lay the suit for appropriate for reliefs against the defendant.

10.Per contra, it is the case of the defendant that the plaintiff has not put up the construction in his property as per the approved plan and on the other hand, in deviation of the approved plan, the plaintiff has put up construction and on that basis, it is contended by the defendant that the plaintiff had slightly encroached into the defendant's wife's property and further according to the defendant, inasmuch as the plaintiff had not put up the construction in accordance with the plan sanctioned to him and deviated the rules pertaining to the same, it is stated that his wife had lodged complaint to the authorities concerned and it is stated that fearing action, according to him, the plaintiff has come forward with the false case as if, the defendant has attempted to put up wall in the suit property and hence, according to the defendant, the plaintiff has no cause of action and the suit is liable to be dismissed.

11.Materials placed on record would go to show that the suit property is owned by the plaintiff. It is further seen that the plaintiff had obtained a plan from the Municipality concerned to put up construction in the suit property and accordingly, put up the construction. Now, it is contended by the plaintiff that, with a view to prevent him from putting up the construction in the suit property, the defendant is attempting to put up a wall in the suit property belonging to him and hence, according to the plaintiff, he has been necessitated to institute the suit for appropriate reliefs.

However, it is the case of the defendant that the plaintiff had not followed the plan while putting up the construction in the suit property and on the other hand, deviated from the plan and been putting up illegal construction and in that process, had slightly encroached into his wife's property and according to the defendant, in this connection, his wife had preferred complaints to the authorities concerned and fearing action in the hands of the authorities, it is stated by the defendant that the plaintiff has come forward with the present suit on false allegations.

12.However, if as really contended by the defendant, the plaintiff had slightly encroached into his wife's property as alleged in the written statement, the defendant or his wife would not have been a silent spectator to the same and on the other hand, would have initiated appropriate legal action against the plaintiff with reference to the same. Though, it is stated by the defendant that his wife had preferred a Civil suit in O.S.No.76 of 2002 complaining of the illegal construction put up by the plaintiff in the suit property, with reference to the same, as such, no valid material is forthcoming on the part of the defendant. Only the copy of the plaint in O.S.No.76 of 2002 has been marked as Ex.B4. Be that as it may, if at all as

alleged by the defendant, the plaintiff had put up the construction in the suit property in violation of the rules pertaining to the Municipality or the sanctioned plan, it is for the Municipality to initiate necessary action against the plaintiff and further it is open to the defendant to pursue the remedies available to him as per law in the abovesaid suit proceedings. In such view of the matter, merely because the defendant's wife has preferred a civil action against the plaintiff in O.S.No.76 of 2002 by adding the authorities concerned, ipso facto, we cannot construe that the construction put up by the plaintiff in the suit property is in violation of the Municipality Rules. Suffice to state at this stage of the matter, the parties are to settle the dispute with reference to the same in the above said litigation as per law.

13. As above seen, with reference to the case of the defendant that the plaintiff has slightly encroached into the defendant's wife property, till date there is no legal action as such initiated by the defendant's wife against the plaintiff to remove the alleged encroachment. Further, in this suit proceedings, it is found that the Advocate Commissioner had inspected the suit property along with the surveyor and filed his report and plan and from the report and plan of the Advocate Commissioner marked Exs.C1 and C2 as well as the evidence of the surveyor examined as P.W.

2, it is found that the plaintiff had put up the construction only in the property belonging to him and not encroached into the defendant's wife's property as such and further it is found that the plaintiff has left space on the southern side of his property and it is also seen that it is only the defendant's wife who had put up the hollow block stones in the said space and it is thus found that the defendant's wife seem to have made attempts to put up the wall in the suit property belonging to the plaintiff and the plaintiff has not made any encroachment into the defendant's wife's property as alleged in the written statement.

The reading of the Commissioner's report and plan marked as Exs.C1 and C2 in toto read with the evidence of the surveyor examined as P.W.2 cumulatively would go to show that, as rightly determined by the Courts below, it is only the defendant's wife with the assistance of the defendant who had made attempts to raise the wall in the suit property belonging to the plaintiff by heaping the hollow block stones without any authority and accordingly, it is seen that the apprehension of the plaintiff is justified that the defendant through his wife is attempting to prevent the plaintiff from raising the construction in the suit property, by taking steps to put up the wall which cannot be countenanced as per law. Accordingly, it is found that the plaintiff has a cause of action to institute the suit against the defendant for the reliefs prayed for an in this view of the matter, it is found that the Courts below are justified in granting the relief

of permanent injunction as prayed for by the plaintiff. 14.As above discussed, if at all the plaintiff had put up the construction in violation of the rules of the Municipality or against the sanctioned plan, the defendant is to work out his remedies in O.S.No.76 of 2002 as per law and the defendant in the guise of the abovesaid suit proceedings cannot be allowed to violate the law and put up the wall in the suit property belonging to the plaintiff. Similarly, when the evidence of P.W.2 read with Exs.

C1 and C2 go to show that the plaintiff has not made any encroachment into the defendant's property and on the other hand, it is only the defendant and his wife who had made attempts to put up the wall by storing the hollow block stones in the suit property belonging to the plaintiff and when the defendant has not placed any materials worth acceptance to substantiate the objection raised by him to the Commissioner's report and plan and in such view of the matter, merely because the defendant has filed objections to the Commissioner's report and plan that cannot be taken as the gospel truth for disbelieving the report and plan of the Advocate Commissioner. Further, when as above discussed, the Commissioner's report and plan had been buttressed by the evidence of the surveyor examined as P.W.

2 and when the materials placed on record go to show that the construction had been put up by the plaintiff only in the suit property to which he has a valid title and when further it is noted that as determined by the Courts below, the defendant and his wife are attempting to put up the wall in the suit property, it is found that the Courts below are right in disbelieving the defence version and upholding the plaintiff's case.

The substantial questions of law formulated are accordingly answered against the defendant and in favour of the plaintiff.

15.For the reasons aforestated, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.

Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar To

1. The District Judge of Nilgiris at Ootacamund. 2.The District Munsif of Ootacamund.

3.The Section Officer, VR Section, High Court,Madras.

+1cc to Mr.S.S.Elambarathi, Advocate, S.R.No.36753 +1cc to Mr.S.K.Rakhunathan, Advocate, S.R.No.36891 S.A.No.1828 of 2004 SKV(CO) GSP(09/07/2018)