K.Dhanapal vs G.Swaminathan
2021 Latest Caselaw 10007 Mad

                                                                          S.A.(MD)Nos.542 and 543 of 2011


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 20.04.2021

                                                        CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                           S.A.(MD)Nos.542 and 543 of 2011


                K.Dhanapal                                            ... Appellant in both S.As

                                                           Vs.

                G.Swaminathan                                         ... Respondent in both S.As

Common Prayer : Second Appeals filed under Section 100 of Civil Procedure

Code, against the judgment and decree dated 22.04.2010 passed in A.S.Nos.114

and 132 of 2008, respectively, on the file of the Additional Subordinate Court,

Kumbakonam, confirming the judgment and decree dated 23.01.2007, passed

in O.S.Nos.337 and 279 of 2004, respectively, on the file of the Principal

District Munsif Court, Kumbakonam.

                (In both S.As)

                                   For Appellant     : Mr.Lakshmi Shankar,
                                                           For Mr.T.V.Sivakumar
                                   For Respondent : Mr.S.Prabhu



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                                                                         S.A.(MD)Nos.542 and 543 of 2011




                                             COMMON JUDGMENT

The unsuccessful plaintiff in O.S.Nos.114 and 337 of 2004 on the file of

the Principal District Munsif Court, Kumbakonam, is the appellant in these

second appeals. The appellant filed the suit along with his mother. The case of

the plaintiffs is that the property described as 'A' schedule in the plaint was

originally purchased by one Vaithiyalingam Pillai through Court auction on

29.06.1966. Subsequently, the said Vaithiyalingam sold the same in favour of

one Govindaraj vide sale deed dated 05.12.1966. From the said Govindraj, the

appellant's mother namely., Subbammal purchased vide sale deed dated

14.06.1977. The defendant/Swaminathan in O.S.No.337 of 2004 owns the

adjacent property bearing D.No.15, Veerapandiya Kattabomman Street,

Madhalampettai, Kumbakonam. According to the plaintiffs on 26.02.2001, the

defendant encroached a portion of the suit property covered under Door

No.14B to an extent of 4 feet by 20 feet on the southern side of the suit

property belonging to the first plaintiff and started digging foundation for the

purpose of construction of wall. In the face of obstruction and resistance from

the plaintiffs, the defendant went ahead with the construction. The encroached

the portion has been described in the 'B' schedule property. Seeking the relief

of permanent injunction as well as mandatory injunction for removal of

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S.A.(MD)Nos.542 and 543 of 2011

offending construction, the plaintiffs filed O.S.No.68 of 2001 (Later re-

numbered as O.S.No.337 of 2004).

2.The defendant filed his written statement controverting the claims of

the plaintiffs. The stand of the defendant was that he had not committed any

encroachment and he pressed for dismissal of the suit. The Trial Court

appointed an Advocate Commissioner who submitted more than one report in

this regard after conducting spot inspection.

3.The plaintiffs subsequently filed O.S.No.279 of 2004 before the very

same Court seeking compensation for the damage caused to the wall of the

plaintiffs' property bearing D.No.14A, Veerapandiya Kattabomman Street,

Madhalampettai, Kumbakonam.

4.The plaintiffs alleged that on account of the new construction, put up

by the defendant, their wall got badly damaged and cracks had also developed

in the wall.

5.The defendant filed his written statement contending that the wall of

the plaintiffs' house is a very old one and that it was made of mud and mortar

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S.A.(MD)Nos.542 and 543 of 2011

and that the cracks had occurred in natural course and on account of improper

maintenance by the plaintiffs. In paragraph No.6 of the written statement, the

defendant had denied the plaint allegations made in paragraph No.6. The

defendant pressed for dismissal of the suit.

6.Both the suits were taken up together and common evidence was let in.

The appellant herein examined himself as P.W.1 and three other witnesses were

examined on the side of the plaintiffs. The defendant examined himself as

D.W.1 and two other witnesses. On the side of the plaintiffs Exs.A.1 to A.18

were marked. On the side of the defendant Exs.B.1 to B.8 were marked. The

reports of the Advocate Commissioner, his sketches and plan were marked as

Exs.C.1 to C.9.

7.The Trial Court after considering the evidence on record by judgment

and decree dated 23.01.2007 dismissed both the suits. During the pendency of

the suit, the first plaintiff passed away. Since the second plaintiff namely.,

Dhanapal, the son of the first plaintiff was already on record, the second

plaintiff filed A.S.Nos.114 and 132 of 2008 before the Additional Sub Court,

Kumbakonam. By judgment and decree dated 22.04.2010, both the appeals

were dismissed and the decision of the Trial Court was confirmed. Challenging

the same, these second appeals have been filed.

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S.A.(MD)Nos.542 and 543 of 2011

8.S.A.(MD)No.542 of 2011 arises out O.S.No.337 of 2004. It was

admitted on the following substantial questions of law:-

(a) Are the Courts below correct and justified in negativing the claim of the plaintiff/appellant when the defendant has not produced any document of title to his property in which he has made an offending construction?

(b) Are the Courts below correct and justified in negativing the claim of the plaintiff/appellant without looking into the report of the Commissioner along with help of Surveyor?

(c) Are the Courts below correct and justified in negativing the claim of the plaintiff without framing the necessary issues for proper determination as contemplated under C.P.C.? and

(d) Are the Courts below correct and justified in negativing the claim of the plaintiff without adverting to the fact that the evidence has got to be looked into as a whole?”

9.S.A.(MD)No.543 of 2011 arises out O.S.No.279 of 2004. It was

admitted on the following substantial questions of law:-

(a) Are the Courts below correct and justified in negativing the claim of the plaintiff/appellant without looking into Ex.A15 to Ex.A18?

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S.A.(MD)Nos.542 and 543 of 2011

(b) Are the Courts below correct and justified in negativing the claim of the plaintiff/appellant despite the admission of the defendant regarding the offending construction? and

(c) Are the Courts below correct and justified in negativing the claim of the plaintiff without framing the necessary issues for deciding the point for determination as contemplated under C.P.C.?

10.Heard the learned counsel on either side.

11.The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds. He pointedly contended

that the defendant had not filed his title document and had chosen to contest the

case by picking holes in the plaintiffs' case. He would point out that even

though the defendant would claim that only after getting approval from the

local body, the new construction was put up, the approved building plan was

not even marked. He would also state that there were two issues involved. One

is regarding damage caused to the suit wall and the other is regarding

encroachment. The Commissioner had conducted more than one spot

inspection and filed several reports. According to the appellant's counsel, the

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S.A.(MD)Nos.542 and 543 of 2011

Trial Court had mixed up both the issues and that resulted in the dismissal of

the suits. The appellant's counsel would also contend that a mere look at the

sketch enclosed by the defendant himself in O.S.No.279 of 2004 would indicate

that the suit wall shown as “AD” absolutely belonged to the plaintiffs. The

specific allegation of the plaintiffs is that the defendant had gone beyond

“AD” wall on the northern side. According to him, a mere look at the

photographs would indicate that “AD” wall takes a bend at the encroached site.

He would also contend that the defendant had no right whatsoever to rest the

cantilever on the “AD” wall. He would also state that as a result of the

offending construction, the wall had developed cracks and suffered damage.

He therefore submitted that the appeals will have to be allowed in respect of

both the cases by answering the substantial questions of law in favour of the

appellant.

12.Per contra, the learned counsel appearing for the respondent would

contend that since both the Courts below have concurrently found the issues in

favour of the respondent, no interference is called for in exercise of jurisdiction

under Section 100 of Civil Procedure Code. The learned counsel would draw

my attention to the elaborate discussion made by the Trial Court on various

issues. He also pointed out that Exs.A.1 and A.2 are parent documents for the

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S.A.(MD)Nos.542 and 543 of 2011

plaintiffs. In both Exs.A.1 and A.2, the dimensions have not at all been given.

He would also state that what was purchased was only the superstructure

bearing Door No.14A. Only in Ex.A.3/sale deed executed by Govindaraj in

favour of Subbammal, the dimensions have been given. He would point out

that the plaintiffs did not have any title over the vacant land lying on the eastern

side of the superstructure. He would also state that the surveyor, who

accompanied the Advocate Commissioner and who was examined as P.W.3 had

categorically deposed that there was no encroachment had been committed by

the defendant. The learned counsel for the defendant also drew my attention to

Ex.B.8/FMB sketch issued by the Commissioner, Kumbakonam Municipality to

show that the dimensions given in the suit schedule are totally erroneous. He

would also reiterate that no damage was actually caused to the suit wall by the

new construction put up by the defendant. There is nothing on record to show

that the so-called cracks and damage suffered by the suit wall were as a result

of the construction put up by the defendant. He called upon this Court to

endorse the findings given by the Courts below and dismiss both the appeals.

13.I carefully considered rival contentions and perused the evidence on

record. It is true that the First Appellate Court had not framed the points for

determination as envisaged by Order 41 Rule 31 of Civil Procedure Code.

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S.A.(MD)Nos.542 and 543 of 2011

Since the learned First Appellate Judge had dealt with all the issues that had

arisen for consideration, non-framing of the points for determination cannot be

said to have vitiated the eventual decision. Therefore, this substantial question

of law is answered against the appellant.

14.As rightly pointed out by the learned counsel for the defendant that

the parent deeds of the plaintiffs do not contain any measurement and four

boundaries have alone been given. That apart, the superstructure alone has

been conveyed both under Ex.A.1 as well as Ex.A.2. However, in Ex.A.3 the

dimensions have been given. Even in Ex.A.3, it has been mentioned that the

property is comprised in Survey No.1620. A mere look at Ex.B.8/FMB sketch

would show that the Survey No.1620 measures 42 feet on west, 118 feet on the

north, 87 feet on the south and 54.5 feet on the east. In the plaint, the plaintiffs

have given the north-south measurement as 54.5 feet and east-west

measurement as 118.5 feet. This may be true in respect of one side but not in

respect of the other side. That apart, the Surveyor who was examined on the

side of the plaintiffs had categorically deposed that no encroachment was

committed by the defendant. The learned counsel for the appellant would of

course point out that not only the property of the appellant but also that of the

defendant/respondent is comprised within the very same survey number

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S.A.(MD)Nos.542 and 543 of 2011

namely., S.No.1620. The wall of the plaintiffs running from A to D as shown in

the defendant's rough sketch is the demarcating line. According to the

plaintiffs, the defendant has admitted that the A.D. wall belonged to the

plaintiffs and that while the plaintiffs will not have claim on the property lying

to the south of the wall, likewise the defendant did not have any right on the

property lying to the north of the wall. According to the appellant's counsel, the

appellant need not ask for any formal relief regarding declaration. It is true that

the Courts below have not gone into the said aspect at all. In this case, there is

a real dispute between the parties as to whether there has been encroachment or

not. The defendant asserts that the new construction lies within his boundaries.

In such circumstances, without also asking for relief of declaration, it is idle to

maintain the suit for mere permanent injunction and mandatory injunction. In

this view of the matter, the substantial questions of law are answered against

the appellant and in favour of the respondent. Hence, I decline to interfere with

the judgment and decree impugned in S.A.(MD)No.543 of 2011 and it is

dismissed.

15.Next comes the question as to whether the Courts below were justified

in dismissing O.S.No.337 of 2004 filed by the plaintiffs. The basic facts are not

in dispute. The first plaintiff had purchased the superstructure bearing Door

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S.A.(MD)Nos.542 and 543 of 2011

No.14A, Veeirapandiya Kattabomban Street, way back in the year 1977 itself.

The defendant appears to have become the plaintiffs' neighbour much later.

The title documents of the plaintiffs show Sankara Padyachi's house as

southern boundary. The defendant would claim that he purchased Sankara

Padayachi's house and after demolishing the old wall, put up a new

construction. The document whereby the defendant traces his title has not been

exhibited before the Courts below. The defendant also admits that the

“AD” wall absolutely belongs to the plaintiffs. But when he put up a new

construction, a portion of the construction came to rest on the suit wall

belonging to the plaintiffs. In fact paragraph No.2 of the Advocate

Commissioner's report (Ex.C.7) dated 31.10.2001 clearly mentions that the

cantilever of the defendant's house rests on the suit wall of the plaintiffs. It has

been mentioned that some ten tiles of the plaintiffs' roof have also been found

damaged. The cracks in the suit wall have also been mentioned. In fact, the

learned Trial Munsif in paragraph No.46 of the judgment would indicate that he

considered awarding of some compensation to the plaintiffs. But he refrained

from doing so, because the suit wall was admittedly an old one and the

plaintiffs had not established that the cracks found on the wall were on account

of the offending construction put up by the defendant.

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S.A.(MD)Nos.542 and 543 of 2011

16.I concur with the submission of the appellant's counsel that the

principle of res ipsa loquitur can be applied to the case on hand. The

construction by the defendant begun to be put in the year 2001. The plaintiffs

had also issued suit notice dated 26.06.2001 (Ex.A.13). Photographs have also

been enclosed. From a mere look at the photographs that had been exhibited on

the side of the plaintiffs and from a reading of the commissioner's report, I can

come to the conclusion that the construction by the defendant has been put up

in such a way that no space has been left between the plaintiffs' wall and the

new construction. In other words, without leaving set back area, the defendant

had put up the construction. To a question from the Court, the learned counsel

for the defendant would reply that the construction was put up after obtaining

approved building plan from the local body. But the building plan was not

marked before the Courts below. In any event, the defendant has no right to

rest even a portion of the construction on the plaintiffs' property. The Trial

Court would remark whenever a new construction comes up, it is customary to

erect lateral support and they are bound to rest on the neighbour's building. If

there is goodwill between the neighbours, it should not give rise to any cause of

action. If there is no goodwill between the neighbours, without getting the

permission from the neighbour, it is not open to one party to unilaterally erect

such laterally supporting pillars on the neighbours building. That is precisely

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S.A.(MD)Nos.542 and 543 of 2011

what the defendant has done. The Courts below ought to have sustained the

claim of the plaintiffs for damages. The plaintiffs had stated that for effecting

repairs, they had incurred a sum of Rs.24,000/- and for the mental agony

suffered by them, they wanted compensation of Rs.10,000/- more and that is

how, the suit claim has been quantified.

17.There is merit in the appellant's counsel's contention that when the

defendant was aware that the suit wall was an old one, he could not have

recklessly rested the cantilever on the same. The compensation payable to the

appellant is quantified as Rs.15,000/- and the respondent is directed to pay the

same to the appellant with interest at the rate of 6% per annum with effect from

26.06.2001 till the date of payment.

18.In view of the above, S.A.(MD)No.542 of 2011 is partly allowed and

S.A.(MD)No.543 of 2011 is dismissed. No costs.

                                                                                    20.04.2021
                Index              : Yes / No
                Internet           : Yes/ No
                ias

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S.A.(MD)Nos.542 and 543 of 2011

advocate/litigant concerned.

G.R.SWAMINATHAN, J.

ias

To:

1.The Additional Subordinate Court, Kumbakonam.

2.The Principal District Munsif Court, Kumbakonam.

3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

S.A.(MD)Nos.542 and 543 of 2011

20.04.2021

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