Madras High Court
R. Krishnamoorthy vs R. Govingdarajan on 6 July, 2021
S.A.No.830 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.830 of 2008
and
CMP.No.1 of 2008
1. R. Krishnamoorthy
2. Mrs. K. Vishnu Priya
3. Mrs. R. Sridevi
4. Mr. K. Ramanujam
... Appellants
versus
1. R. Govingdarajan
... Respondent
Second Appeal filed against the judgment and decree dated
25.04.2006 passed in A.S.No.685 of 2005, on the file of II Additional
City Civil Judge at Chennai concuring the decree and judgment passed
in O.S.No.1941/99 dated 17.09.2003 on the file of VIII Assistant City
Civil Judge, Chennai.
For Appellants : Mr. George Graham
for M/s. Devadason and Sager
For Respondent : No appearance
JUDGMENT
The plaintiffs are the appellants before this Court challenging the
judgment and decree in A.S.No.685 of 2005 on the file of the II
Additional Judge, City Civil Court, Chennai confirming the judgment
and decree of the VII Assistant, City Civil Judge, Chennai in
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S.A.No.830 of 2008
O.S.No.1941 of 1999 dated 17.09.2003.
2. The suit was originally filed by R.Krishnamoorthy, against the
respondent/defendant herein. Krishnamoorthy died pending the appeal
and the appellants have been brought on record as his legal
representatives.
3. The suit in question was filed by the plaintiffs for the following
reliefs:
a) for a mandatory injunction directing
the defendant to remove the constructions
which are made on the top of the common
pathway even though objected to repeatedly;
b) for a permanent injunction restraining
the defendant from putting up any
construction on the common pathway and also
any construction which obstructs the light and
air of the plaintiff's portion in the 1st floor.
Case of the Plaintiffs:
4. The case of the plaintiffs is that the suit property which
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S.A.No.830 of 2008
formed a part of the house and ground bearing Door No.32, Mosque
Street, Saidapet originally belonged to the first plaintiff and
defendant's father Mr. Rengaramanuja Mudaliar. The said
Rengaramanuja Mudaliar owned other two properties as well. He
had executed a registered Will dated 19.01.1989 in which he had
appointed one P.Kulash as a sole executor. Rengaramanuja Mudaliar
passed away on 27.06.1993 and the executor had filed a petition for
probate of the said Will in O.P.No.371 of 1996. The petition was
allowed by this Court by order dated 10.01.1997. As per the Will, the
plaintiff's father had bequeathed a portion of the property to the
plaintiff and defendant and another portion to his grandson Prabakaran
through his predeceased son. Under the Will, the portion alloted to the
plaintiff was marked as C Schedule, the defendant was alloted B
Schedule and minor Prabakaran was alloted D Schedule. The said
Prabakaran being a minor his portion was leased out by the Executor.
5. It is the further case of the plaintiff that the portion which was
allotted to the defendant abutted Mosque street and measured North
to South 12 ½ feet, East to West 38 feet. The plaintiff's portion which
was adjacent to the property alloted to the defendant measured North
to South 12 ½ feet and East to West 38 feet and the portion behind
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S.A.No.830 of 2008
the plaintiff's property was the portion allotted to minor Prabakaran
which also measured North to Sout 12 ½ feet, East to West 33 feet.
Under the Will, a common passage measuring 3 ½ feet North South
and 33 feet East to West was left for the use of the plaintiffs,
defendants and their men. That apart, a portion of the property
measuring North South 12 ½ feet East West 4 feet between the
portions alloted to the plaintiffs and minor Prabakaran was left in
common in which there was a common staircase, common well and a
toilet. The portion that was allotted to the defendant consisted of a
shop portion abutting the road. The defendant demolished the shops
and after demolishing put up a terrace builing in the ground floor.
6. The plaintiff would contend that the defendant had chosen to
close this pathway on the Southern side of his portion by putting up a
concrete construction on the pathway. The plaintiffs' portion consists
of both ground and first floor and the first floor portion had a window
opening into the portion allotted to the defendant through which the
plaintiff has been enjoying air and light without interruption for well
over the prescribed period.
7. The defendant without leaving any space for light and air to
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S.A.No.830 of 2008
enter into the premises has constructed the first floor which has now
made the window of the plaintiff's property redundant. Despite several
attempts to mediate, the defendant had refused to demolish the
construction and on the contrary had started threatening the plaintiff.
Therefore, left with no other alternative the plaintiff had come forward
with the above suit.
Written Statement of the defendant:
8. The defendant had filed a written statement inter alia denying
the various allegations set out by the plaintiff. The defendant had
categorically stated that he had not put up any obstructions in the
pathway and on the contrary an additional width of 2 to 3 feet has
been provided. The defendant had put up a construction in the portion
alloted to him. The defendant would further submit that the
defendant's enjoyment of light and air through the windows situate on
the Southern Western and Northern sides had not been obstructed in
any manner and the plaintiff could not claim any easementary right to
light and air through the window situate on the eastern side, since that
portion has been alloted to the defendant.
9. The defendant would further submit that the suit filed for a
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S.A.No.830 of 2008
mandatory and permanent injunction without seeking the relief of
declaration for the easementary right was not maintainable.
Trail Court:
10. Trail Court framed the issues and recasted the same which
reads as follows:
“ 1. Whether the plaintiff has made any
encroached construction over the common
passage?
2. Whether the plaintiff is entitled to
mandatory injunction as prayed for ?
3. Whether the plaintiff is entitled to the
relief of permanent injunction as prayed for ?
4. To what relief is the plaintiff entitled ?''
11. The plaintiff had examined himself as P.W.1 and marked 8
documents on his side. On the side of the defendant, he examined
himself as D.W.1 and one Kulashekaran one of the brothers of the
plaintiff and defendant who was given in adoption as DW2. An
Advocate Commissioner had been appointed for local inspection and
his report and plans been marked as Ex.C.1 to C.3.
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S.A.No.830 of 2008
12. The learned Assistant City Civil Judge on considering the
evidence on record, had partly decreed the suit by granting a
permanent injunction restraining the respondent from putting up any
further construction over the suit common passage in the first floor.
This order was passed after the learned Judge had perused the
commissioner's report and plan. The learned judge has also noted the
fact that the construction over the suit pathway had been made only in
the first floor which caused no hindrance or obstruction to the plaintiff
ingress and egress into his property. Therefore, the learned judge had
restricted the injunction to the putting up of further construction in the
common passage on the first floor. The said judgment and decree was
challenged by the plaintiff by filing A.S.No.685 of 2005 on the file of
the II Additional City Civil Court, Chennai. The learned Judge
confirmed the judgment and decree of the Trail Court. It is challenging
the same that the present appeal has been filed.
Question of Law:
13. The Second Appeal was admitted on the following substantial
question of law:
“ When the Trial Court and the Appellate
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S.A.No.830 of 2008
Court found that the defendant has encroached
and put up construction in the common
pathway, whether the refusal to grant
mandatory injunction is justified.”
Submissions:
14. Mr. George Graham, learned counsel appearing on behalf of
the appellant would contend that the Lower Appellate Court having
found that a construction had been put up over the suit pathway in the
first floor which was beyond the portion alloted to the defendant ought
to have followed it up with a decree for mandatory injunction. Apart
from the above submissions, no other submission has been made by
the learned counsel.
Discussion:
15. From a perusal of the Advocate Commissioner's report, it is
seen that the original common pathway in the first floor had ended at
the points Q P and from the points Q to R it was open to sky and
therefore the plaintiff was never in use of that portion. As regards
pathway in the ground floor there is no obstruction and the ingress and
egress through the pathway has not been obstructed. It is only a roof
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S.A.No.830 of 2008
that has now been put up over the pathway. Therefore, there is no
error in the judgment and decree of the Courts below. Further, the
decree for permanent injunction has not been challenged by the
defendant and consequently, the defendant cannot put up any further
construction in the portion which is the extension into the area which
was open to the sky and extending from the old pathway. Therefore,
the question of law is answered against the plaintiff and the Second
Appeal stands dismissed. Consequently, connected Miscellaneous
Petition is closed. No costs.
06.07.2021
Index: Yes/no
mrn
To
1.The II Additional City Civil Judge, Chennai
2. The VIII Assistant City Civil Judge, Chennai.
https://www.mhc.tn.gov.in/judis/
S.A.No.830 of 2008
P.T.ASHA, J.
(mrn)
S.A.No.830 of 2008
and
CMP.No.1 of 2008
06.07.2021
https://www.mhc.tn.gov.in/judis/
