Madras High Court
M.Selvapakyam Thangam vs Vel Nadar on 18 November, 2021
S.A(MD)No.591 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.591 of 2021
and
C.M.P(MD)No.7794 of 2021
M.Selvapakyam Thangam ... Appellant/Appellant/Defendant
Vs.
Vel Nadar ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 11.04.2019 passed in
A.S.No.115 of 2014, on the file of the Subordinate Court, Thoothukudi,
confirming the judgment and decree dated 02.09.2014 passed in O.S.No.381
of 2010 on the file of the Principal District Munsif Court, Thoothukudi.
For Appellant : Mr.A.Balakrishnan
For Respondent : Mr.S.Kadarkarai
1/10
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S.A(MD)No.591 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.381 of 2010
by the Principal District Munsif Court, Thoothukudi and in A.S.No.115 of
2014, by the Subordinate Court, Thoothukudi, are being challenged in the
present second appeal.
2. The respondent / plaintiff has instituted a suit in O.S.No.381 of
2010, on the file of the trial Court for the relief of permanent injunction,
wherein, the present appellant has been shown as defendant.
3. In the plaint, it is averred that the plaintiff has purchased the first
schedule property measuring an extent of 3-1/2 cents on 26.09.1991 from
one Mary Koyilmani Ammal and others. In the year 1993, the plaintiff had
constructed a house in the above said property and peacefully enjoying the
same without any hindrance. The plaintiff had constructed a stair-case and
after the completion of the construction activities, the defendant, who is
having the property adjacent to the plaintiff's property, has instituted a suit
in O.S.No.236 of 1994 for the relief of mandatory injunction on the
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S.A(MD)No.591 of 2021
allegation that the plaintiff has encroached three feet in his property and
raised stair-case and disputed stair-case portion was scheduled as second
item in the plaint and thereby the second schedule was part of the first
schedule in the plaint. Before instituting the abovesaid suit, the defendant
made a complaint before the Village Committee in respect of the disputed
property and the Village Committee advised both the parties to conduct
survey of the land and after conducting survey, both the parties accepted the
same and survey stone was also fixed. During the survey, it was found that
the stair-case was constructed within the first schedule property and the
Village Committee directed the defendant to withdraw the suit and
agreement was also entered into between the parties in this regard before the
Village Administrative Officer of Koram Pallam Village. As the defendant
had failed to act as agreed as per the terms and conducted the suit and
obtained an exparte decree. After receipt of notice from the E.P proceedings,
the plaintiff has got knowledge about the exparte decree and took steps to
set aside the exparte decree. Subsequently, the suit was dismissed on merits.
Since there was no appeal, the decree became final and the plaintiff never
had any right in the plaint second schedule item. In the year 2010, when the
plaintiff had attempted to construct the East-western side wall, the defendant
created trouble and made a complaint before the Police and they advised the
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S.A(MD)No.591 of 2021
parties to approach the Court. Hence, the suit was filed for injunction
restraining the defendant from causing any trouble to the peaceful
enjoyment of the second schedule property.
4. In the written statement filed on the side of the defendant, the
defendant contended that the sale deed relied on by the plaintiff do not have
the particulars regarding the length of east-western side and south-western
side, so the extent of plaint schedule property mentioned in the plaint is
fictitious and the four side extent were not mentioned in the written
statement filed in O.S.No.236 of 1994 and also contended that the defendant
purchased the property measuring an extent of 3-1/4 cents along with the
house before raising construction by the plaintiff. Though the defendant
made a complaint before the concerned police while constructing the stair
case, due to the influence made by the plaintiff, they have not taken any
action. Hence, the defendant had filed a suit in O.S.No.236 of 1994 for the
relief of mandatory injunction. After the appearance of the plaintiff in the
abovesaid suit, a compromise was effected between the parties, but the
defendant was not granted 3-1/4 cents as agreed in the compromise. Hence,
he proceeded with the suit and the suit was dismissed by observing that
when parties to the contract not acted as per the terms of the contract,
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S.A(MD)No.591 of 2021
remedy available to the parties to approach the person who conducted the
compromise talk instead of approaching the Court. Once again, the
defendant approached the panchayat and the plaintiff agreed to remove the
encroachment, believing his words, the defendant had not filed any appeal
against the decree in O.S.No.236 of 1994 and pleaded that if the plaintiff
had constructed a compound wall in the encroached portion, the right and
possession of the defendant would be affected and when there was serious
title dispute in respect of the second item of the property, the suit for
injunction without the prayer for declaration is bad in law and prayed for
dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and one Theiva Kannu Nadar was examined as
P.W.2 and and Exs.A1 to A4 were marked. On the side of the defendant, her
husband namely, Kamaraj was examined as D.W.1 and one Kovilpillai was
examined as D.W.2 and Exs.B.1 to B.3 were marked. Advocate
Commissioner was also appointed and he filed his report and plan.
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S.A(MD)No.591 of 2021
6. On the basis of the rival pleadings on either side, the trial Court,
after framing necessary issues and after evaluating both the oral and
documentary evidence, has decreed the suit in favour of the respondent /
plaintiff.
7. Aggrieved by the Judgment and decree passed by the trial Court,
the defendant as appellant, had filed an Appeal Suit in A.S.No.115 of 2014.
The first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, has dismissed the appeal and confirmed the
Judgment and decree passed by the trial Court. Challenging the said
concurrent Judgments and decrees passed by the Courts below, the present
second appeal has been preferred at the instance of the defendant as
appellant.
8. Heard the learned counsel for the appellant and the learned counsel
for the respondent and also perused the records carefully.
9. The learned counsel appearing for the appellant / defendant would
submit that the both the Courts below have failed to analyse that even as per
the plaint, the extent of east-west boundary is 60 links, but as per the
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S.A(MD)No.591 of 2021
commission report, the extent of east-west boundary is 64 links, which
clearly proves that the plaintiff has encroached the defendant's property and
raised a stair-case in the encroached portion and prayed for allowing the
Second Appeal.
10. The learned counsel appearing for the respondent / plaintiff would
submit that the respondent / plaintiff had 64 links and he do not accept 60
links and he has stated that he had 64 links which has been appropriately
proved by the Commissioner by measuring the property and submitted his
report and both the Courts below have come to the conclusion that the
plaintiff is entitled for 64 links of land.
11. On the earlier occasion, when the learned counsel appearing for
the appellant / defendant submitted that the respondent / plaintiff is trying to
construct a compound wall, which is obstructing his right and light, hence,
this Court directed the parties to get instructions from their clients regarding
the same.
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S.A(MD)No.591 of 2021
12. On instructions, it was found that the respondent is constructing
the compound wall within his boundaries and it is only a compound wall
which would not be constructed not beyond the height of 5 feet, which
would not obstruct any light or air which pass through the said appellant's
property.
13. As both the parties had discussion with their clients and both of
them also agreed for constructing a compound wall within the boundaries of
the respondent to an extent which has been constructed adjacent to the stair
case on the southern side. The respondent / plaintiff submits that the
construction of compound wall is only to safe-guard his property and on the
three sides of the property appellant's property is situate.
14. In order to put an end to the issue which is pending for a long
period, this Court is of the view that both the parties should adhere to the
directions issued and no further dispute to be brought in before the Court
and both should live in peace and it is also directed that the plaintiff and the
defendant after constructing the compound wall shall not indulge in wordy
quarrel or back bickers. Both the parties shall not cause any inconvenience
to each other. The construction of the compound wall in Northern side is
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S.A(MD)No.591 of 2021
over and it is only on three sides. No merits has been considered by this
Court and only based on the compromise entered into between them, it has
been decided. This Court makes it clear that the compound wall shall be
constructed upto 5 feet only.
15. With the above directions, the Second Appeal is disposed of. No
costs. Consequently, connected Miscellaneous Petition is closed.
18.11.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but, ensuring
that the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
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S.A(MD)No.591 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Subordinate Court,
Thoothukudi.
2.The Principal District Munsif Court,
Thoothukudi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.591 of 2021
18.11.2021
https://www.mhc.tn.gov.in/judis
