Madras High Court
N. Amala vs The Corporation Of Chennai on 15 April, 2021
S.A.No.31 of 2017 and
C.M.P.No.426 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.No.31 of 2017
and
C.M.P.No.426 of 2017
N. Amala ...Appellant/Plaintiff
Vs
1.The Corporation of Chennai,
Rep. by its Commissioner,
Ripon Buildings,
Park Town, Chennai 600 003.
2.Kalaiselvi ...Respondents/defendants
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 03.02.2015 made in
A.S.No.296 of 2014 on the file of the XVIII Additional Court, City Civil
Court, Chennai and confirming the judgment and decree dated 19.11.2013
made in O.S.No.1403 of 2011 on the file of the learned XVIII Assistant
City Civil Court, Chennai.
1/10
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S.A.No.31 of 2017 and
C.M.P.No.426 of 2017
For Appellant : Mr.M.Balasubramanian
For R1 : M/s.Karthikaa Ashok
For R2 : No Appearance
JUDGMENT
Challenging the judgment and decree dated 03.02.2015 made in
A.S.No.296 of 2014 on the file of the XVIII Additional Court, City Civil
Court, Chennai, confirming the judgment and decree dated 19.11.2013
made in O.S.No.1403 of 2011 on the file of the learned XVIII Assistant
City Civil Court, Chennai, this second appeal has been filed by the plaintiff
in the suit in O.S.No.1403 of 2011.
2. The appellant is the plaintiff and the respondents are the
defendants in the suit. The appellant/plaintiff filed the suit in O.S.No.1403
of 2011 for permanent injunction restraining the respondents herein or their
subordinates from in any manner interfering with the peaceful possession
and enjoyment of the appellant/plaintiff over the suit property. The suit
property is described as a property measuring to an extent of 1246 sq. feet
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S.A.No.31 of 2017 and
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comprised in Old Survey No.208/82 and bearing present T.S.No.198 in
Block No.41 of Thiruveethiamman koil Street, Thiruvanmiyur, Chennai.
3. It is the specific case of the appellant/plaintiff that the suit
property belongs to her and that she has put up a residential building in the
property. The first respondent/ first defendant is the Corporation of Chennai
and the second respondent/second defendant is the neighbour of the
appellant/plaintiff. It is stated in the plaint itself that the second
respondent/second defendant filed a Public Interest Litigation before this
Court against the first respondent/ first defendant alleging that the
appellant/plaintiff has encroached a small portion of the public road and
that such encroachment should be removed. Though the Writ Petition was
dismissed by this Court by observing that the encroachment of the road
should be removed in the interest of the public, it is stated in the plaint, that
on the basis of such observation of this Court, the second respondent/second
defendant has instigated the first respondent/first defendant to interfere with
the possession and enjoyment of the plaintiff over the property and that
therefore, the appellant/plaintiff was constrained to file the civil suit.
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S.A.No.31 of 2017 and
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4.Before the trial Court, the first respondent/first defendant did not
contest the suit nor filed any written statement. However, relying upon the
judgment of this Court wherein this Court has held that Civil Court cannot
entertain a suit or proceedings, in respect of any action taken by the CMDA
or Corporation in respect of the illegal construction and encroachment on
roads and pavements, the suit was dismissed as not maintainable.
5.Aggrieved by the same, the appellant/plaintiff preferred an appeal
in A.S.No.296 of 2014 before the XVIII Assistant City Civil Court,
Chennai. The Appellate Court also dismissed the appeal. The Appellate
Court held that suit is maintainable. However, the appellate Court dismissed
the appeal on the ground that the appellant has not proved his title and
presumed that the suit property is a public road.
6.Both the Courts below have not considered the merits of the case on
proper appreciation of the pleadings and evidence adduced by the
Appellant/plaintiff. Aggrieved by the judgment and decree of the Appellate
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S.A.No.31 of 2017 and
C.M.P.No.426 of 2017
Court, the above second appeal has been preferred by the appellant/plaintiff.
At the time of admission, this Court has framed the following substantial
questions of law:
''1.Whether the first appellate Court is right
in setting aside the finding of the trial Court that
the suit is not maintainable before the City Civil
Court and confirming the judgment of the trial
Court on a totally different line by misconstruing
the documentary evidence in Exs.A1 to A6?
2.Whether the Courts below are right in
negativing the relief of permanent injunction when
admittedly the appellant/plaintiff is in possession of
the suit property?''
7.The learned counsel appearing for the first respondent/first
defendant admitted that the first respondent/first defendant did not contest
the suit or appeal and that the second defendant alone filed the written
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S.A.No.31 of 2017 and
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statement before the Court below. Further, he submitted that the first
respondent/first defendant has no quarrel with the title or enjoyment of the
suit property by the plaintiff. However, the first respondent/first defendant
may take action, if there is any encroachment in the road portion or illegal
construction over the suit property by the plaintiff.
8.There is no appearance for the second respondent/ second defendant
before this Court.
9.From the averments made in the plaint and the stand taken by the
second respondent/second defendant in the written statement, there is no
dispute regarding the suit property. It is evident that the plaintiff was
constrained to file the suit for injunction alleging that at the instigation of
the second respondent/second defendant, the first respondent/first defendant
has threatened to demolish the house of plaintiff. Absolutely, there is no
issue regarding the plaintiff's title or enjoyment over the suit property. The
counsel for the second respondent/second defendant admit that the suit
property is the property of plaintiff. Both the respondent/defendants
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S.A.No.31 of 2017 and
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remained export before the trial Court and the appellate Court.
10.Admittedly, the appellant/plaintiff has put up construction over the
suit property and the appellant/plaintiff is also in enjoyment of the same for
a long time and therefore none of the respondents before this Court has
raised any issue regarding the title or enjoyment over the suit property .
However, the trial Court dismissed the suit by holding that the suit before
the City Civil Court is not maintainable. The judgments relied upon by the
trial Court are cases where the appellant/plaintiff therein challenged the
proceedings initiated by the local body regarding illegal construction or
unlawful encroachment in public land. But, in the present case, title over
the property is not in dispute and hence, the same logic cannot be applied by
the trial Court to dismiss the suit.
11.The appellate Court did not consider the merits of the case. The
plaintiff examined himself as P.W.1 and marked Exs.A1 to A6. She was not
cross examined by respondents/defendants. No valid reason is given by
appellate Court to disbelieve the care of plaintiff. Hence, the findings of the
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lower Appellate Court are perverse. When the plaintiff's title and possession
are not in dispute, the plaintiff is entitled to the decree for injunction in
respect of the suit property. However decree for injunction may not come in
the way of the first respondent/first defendant taking action against the
plaintiff for removal of unauthorized construction or encroachment over the
public property if any.
12. In that view, this Second appeal is allowed and the judgment and
decree of Courts below are set aside. The suit in O.S.No.1403 of 2011
stands decreed. consequently, connected miscellaneous petition is also
closed. No costs.
15.04.2021
vsn
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
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S.A.No.31 of 2017 and
C.M.P.No.426 of 2017
To
1.The XVIII Additional Judge,
City Civil Court, Chennai
2. The XVIII Assistant City Civil Court, Chennai
3. The Commissioner, Ripon Buildings,
Park Town, Chennai 600 003
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S.A.No.31 of 2017 and
C.M.P.No.426 of 2017
S.S.SUNDAR,J.,
vsn
S.A.No.31 of 2017
and
C.M.P.No.426 of 2017
15.04.2021
https://www.mhc.tn.gov.in/judis/
