Madras High Court
Muthulalitha vs Sundaravadivu on 8 February, 2021
S.A.(MD).No.479 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 16.03.2022
JUDGMENT PRONOUNDED ON : 01.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD).No.479 of 2021
and CMP(MD).No.6418 of 2021
Muthulalitha ...Appellant/Appellant
/Plaintiff
Vs
Sundaravadivu ...Respondent/Respondent
/Defendant
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, to allow the second appeal by setting aside the
judgment and decree made in A.S.No.29 of 2018 dated
08.02.2021 on the file of the Additional District and
Sessions Court, Srivilliputhur, confirming the judgment
and decree made in O.S.No.52 of 2010 dated 02.01.2018
on the file of the Subordinate Court, Srivilliputhur.
For Appellant : Mr.M.Thirunavukkarasu
For Respondent : Mr.S.Ramesh
For Mr.V.Raghavachari
1/17
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.479 of 2021
JUDGMENT
The plaintiff is the appellant.
2.The plaintiff filed O.S.No.52 of 2010 before
the Subordinate Court, Srivilliputhur for declaration
that she is the absolute owner of the plaint second
schedule property which is a wall and sought for
consequential permanent injunction from in any way
encroaching or doing any other construction in the
plaint second schedule property. The plaintiff further
prayed for a mandatory injunction to remove the
encroachment over the second schedule wall as shown in
the plaint fourth schedule property.
3.The trial Court partly allowed the suit
granting declaration of title over the first and second
schedule properties and consequential injunction for
the said properties. The trial Court also granted
permanent injunction in favour of the plaintiff that
the defendant should not put up any construction or
encroach over the second schedule property. However,
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S.A.(MD).No.479 of 2021
the prayer with regard to mandatory injunction was
rejected. As against the same, the plaintiff filed
A.S.No.29 of 2018 before the Additional District and
Sessions Court, Srivilliputhur. The learned Appellate
Judge concurred with the findings of the trial Court
and dismissed the appeal filed by the plaintiff. As
against the same, the present second appeal has been
filed by the plaintiff.
4.The plaintiff had contended that she is the
owner of plaint first and second schedule properties.
The defendant who is the adjacent owner had encroached
upon the second schedule property which is a wall
belonging to the plaintiff and she has inserted ½ feet
of her property at the height of 25 feet in the suit
second schedule wall and she has also put up 'RCC'
tank in the said encroachment. Hence, the plaintiff
prayed for declaration and permanent injunction for the
second schedule property and for mandatory injunction
for removal of the encroachment ( mentioned in the
fourth schedule property) over the second schedule
property.
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S.A.(MD).No.479 of 2021
5.The trial Court agreed with the contention of
the plaintiff that the suit second schedule property is
the exclusive wall belonging to the plaintiff and
proceeded to grant a decree for declaration of title
and permanent injunction in favour of the plaintiff
over the second schedule property. The trial Court
further found that since the second schedule wall is
the exclusive wall of the plaintiff, the defendant is
not entitled to put up any construction over the second
schedule wall. Hence, the trial Court granted a decree
for permanent injunction restraining the defendant from
in any manner put up any further construction or
encroachment over the second schedule wall. However,
the prayer for mandatory injunction for removal of
construction that have already been was rejected by the
trial Court.
6.The trial Court relied upon the Advocate
Commissioner's report to arrive at a finding that the
width of the second schedule wall upto the first floor
is 1 ½ feet and above the first floor, it is one feet.
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S.A.(MD).No.479 of 2021
The Court arrived at a finding that between the two
walls of the plaintiff and the defendant, there is no
gap. The trial Court also arrived at a finding that
upon the exclusive wall of the plaintiff, the defendant
has encroached upon to an extent of ½ feet and put up
construction in the first floor. The trial Court also
found that if the said wall is directed to be
demolished, the building of the plaintiff would also
get damaged. When the defendant has put up this
encroached construction, the plaintiff was available in
the town. During the construction, the plaintiff has
not raised any objection. The parties were in talking
terms and there is no enmity between the parties.
7.The trial Court also found that the defendant
has recently purchased the suit schedule property and
she might have been under the impression that the said
½ feet in the second schedule wall belongs to her. The
plaintiff has also participated in the house warming
ceremony of her neighbour namely the defendant. The
construction has been completed around two years back
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S.A.(MD).No.479 of 2021
before filing of the suit and the plaintiff has not
raised any objection during the construction or at the
time of completion of construction. Hence, the
plaintiff has acquiesced with the construction made by
the defendant. Based upon the said finding, the trial
Court rejected the prayer for mandatory injunction.
8.The First Appellate Court elaborately
discussed about the depositions of PW1 and DW1 and
arrived at a finding that there is no encroachment made
by the defendant at the ground floor level and the
encroachment of ½ feet has been done only at the first
floor level. The First Appellant Court found that if
any decree for mandatory injunction is granted, it is
very difficult to be executed because the plaintiff's
property will also get damaged and the whole of the
first floor will get opened up. The First Appellate
Court further found that the description of measurement
of the encroachment mentioned as item No.4 is also
erroneous. The First Appellate Court further found that
the plaintiff has not approached the Court with clean
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S.A.(MD).No.479 of 2021
hands and suit is affected by latches and acquiescence.
Though the plaintiff had knowledge about the
construction in the second schedule property, she has
not chosen to object to the same till the completion of
construction and thereafter, filed a suit for mandatory
injunction for removal of the construction. In case, a
decree for mandatory injunction is granted and the same
is executed, the plaintiff will get benefit of ½ feet
between her wall and the wall of the defendant. The
First Appellate Court also found that now the
plaintiff's wall and the defendant's wall have been
joined together and it will be difficult to cut them in
between and remove ½ feet from them. Hence, the First
Appellate Court found that even if a mandatory
injunction is granted, the same cannot be enforced.
Based upon the said finding, the First Appellate Court
dismissed the appeal filed by the plaintiff. As against
the same, the plaintiff has filed the above second
appeal.
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S.A.(MD).No.479 of 2021
9.The scope of the second appeal is restricted
to the consideration of the fact whether the plaintiff
is entitled to get a decree for mandatory injunction to
remove the encroachment made by the defendant in the
second schedule property.
10.The learned counsel for the appellant had
contended that the Courts below have arrived at a
concurrent finding that the second schedule property
exclusively belongs to the plaintiff. When the second
schedule property exclusively belongs to the plaintiff,
the encroachment made by the defendant have to be
removed in the second schedule wall. The Courts below
have also concurrently found that the defendant has
encroached upon the second schedule wall. According to
the learned counsel for the appellant, the prayer for
mandatory injunction has been made within a period of
three years from the date of construction and hence,
the prayer is not barred by limitation. He further
contended that when the prayer is not barred by
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S.A.(MD).No.479 of 2021
limitation and the plaintiff has established her right
over the second schedule property, the Court below have
erred in not granting a decree for mandatory
injunction.
11.The learned counsel for the appellant further
contended that the executability of the decree cannot
be considered at the stage of granting a decree for
mandatory injunction. He further contended that ½ feet
encroachment made by the defendant from the first floor
level will cause great hardship to her in a manner that
it will prevent the entry of light and air into her
property. He further contended that the findings of the
Courts below that the plaintiff has acquiesced with the
construction of the defendant is not factually correct.
The question of acquiescence will arise only in a case
where the plaintiff has actively encouraged the
defendant in putting up the construction or kept silent
after having knowledge about the encroachment. In the
present case, it cannot attributed to the plaintiff
that despite having knowledge about the encroachment,
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S.A.(MD).No.479 of 2021
she kept quite or she actively helped the defendant to
put up construction. Hence, the Courts below were not
right in arriving at a finding that the plaintiff has
acquiesced to the construction made by the defendant.
12.Per contra, the learned counsel for the
respondent had contended that all the houses in the
said area are having a common wall without any gap in
between them. He further contended that the wall of the
plaintiff and the defendant have now got merged
together and there is no gap between the wall of the
plaintiff and the defendant. If a decree in mandatory
injunction is granted, it is very difficult to carve
out ½ feet in the first floor, in order to execute the
decree. Not only the defendant's building, the
plaintiff's building will also get completely damaged,
if such an exercise is carried out in the execution
proceedings. He further contended that the plaintiff is
the neighbour and the construction was being made right
in front of the plaintiff and there was no objection
from the plaintiff at any point of time. The
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S.A.(MD).No.479 of 2021
construction were made two years prior to the filing of
the suit.
13.Now at this length of time, if any decree for
mandatory injunction is granted, the defendant would be
put to great prejudice. He further contended that the
Court may consider awarding of damages in lieu of
decree for mandatory injunction.
14.I have carefully considered the submissions
made on either side.
15.Section 40 of Specific Relief Act reads as
follows:
“40. Damages in lieu of, or in addition to,
injunction.—
(1) The plaintiff in a suit for perpetual
injunction under section 38, or mandatory
injunction under section 39, may claim damages
either in addition to, or in substitution for, such
injunction and the court may, if it thinks fit,
award such damages.
(2)No relief for damages shall be granted under
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S.A.(MD).No.479 of 2021
this section unless the plaintiff has claimed such
relief in his plaint:
Provided that where no such damages have been
claimed in the plaint, the court shall, at any
stage of the proceedings, allow the plaintiff to
amend the plaint on such terms as may be just for
including such claim.
(3)The dismissal of a suit to prevent the
breach of an obligation existing in favour of the
plaintiff shall bar his right to sue for damages
for such breach.”
16.In the present case, I find that there is
some force in the argument on the side of the
respondent. Even assuming, if any decree for mandatory
injunction is granted, the same cannot be executed by
carving out ½ feet of wall over the second schedule
property said to have been put up by the defendant.
Now, there is no gap in between the wall of the
plaintiff and the defendant. If any attempt to carve
out ½ feet, would literally damage both the plaintiff's
building and the defendant's building. That apart, the
plaintiff was very much available in the suit property,
during the construction made by the defendant. She had
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S.A.(MD).No.479 of 2021
belatedly approached the Court for mandatory injunction
that too after a period of two years from the date of
construction.
17.The trial Court as well as the First
Appellate Court have concurrently found that the
defendant has made encroachment over the second
schedule property. The defendant has not filed any
second appeal challenging the said decree.
18.In the light of the above said facts, I deem
it appropriate that the plaintiff would be adequately
compensated in lieu of decree for mandatory injunction.
However, as per Section 40(2) of Specific Relief Act,
damages cannot be awarded by this Court unless the same
has been claimed in the plaint.
19.In the present case, the learned counsel for
the appellant/plaintiff has filed a memo on 15.03.2022
contending that the party would be satisfied with the
award of damages of Rs.1,00,000/- in lieu of mandatory
injunction.
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S.A.(MD).No.479 of 2021
20.The learned counsel for the
respondent/defendant has also filed a memo valuing the
damages at Rs.50,000/- without prejudice to her
contention in the second appeal.
21.When the plaintiff has agreed to receive
compensation in lieu of mandatory injunction and the
defendant has agreed to pay compensation to avoid a
decree for mandatory injunction, I find that the Court
will have jurisdiction to grant a decree for damages in
lieu of decree for mandatory injunction even without
amendment of the plaint based upon the memo filed by
both the parties.
22.In view of the above said discussion, I find
that the damages to a tune of Rs.60,000/- would be
appropriate in lieu of decree for mandatory injunction.
23.In view of the above said discussion, the
following decree is passed.
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S.A.(MD).No.479 of 2021
(1) The judgment and decree of the Courts below
rejecting the decree for mandatory injunction stands
confirmed.
(2)The defendant/respondent is directed to pay a
sum of Rs. 60,000/- in lieu of decree for mandatory
injunction in favour of the appellant/plaintiff within
a period of three months from the date of the decree.
(3)In other respects, the judgment and decree of
the Courts below are confirmed.
24.With the above directions, the second appeal
is partly allowed. No costs, consequently, connected
miscellaneous petition is closed.
01.04.2022
Index : Yes / No
Internet : Yes / No
msa
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S.A.(MD).No.479 of 2021
To
1.The Additional District and Sessions Judge
Srivilliputhur,
2.The Subordinate Judge,
Srivilliputhur.
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.479 of 2021
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.(MD).No.479 of 2021
and CMP(MD).No.6418 of 2021
01.04.2022
https://www.mhc.tn.gov.in/judis
