Madras High Court
S.Janakiraman (Died) vs V.Baluchammy on 29 September, 2021
S.A.(MD)No.607 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.607 of 2006
and
M.P.(MD)No.2 of 2006
1.S.Janakiraman (Died)
2.J.Mallika
3.J.Punithavathi
4.J.Singaravelan
5.R.Bhuvaneswari
6.J.Vijayakumar ... Appellants
(Appellants 2 to 6 are brought on record as
LRs of the deceased sole appellant vide
order dated 12.12.2012 in M.P.(MD)No.1
of 2011 in S.A.(MD)No.607 of 2006 by STJ)
Vs.
V.Baluchammy ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed by the learned III Additional Sub
Judge, Madurai, made in A.S.No.103 of 2005, reversing the judgment and
decree passed by the learned District Munsif, Melur made in O.S.No.140 of
2003, dated 28.02.2005.
https://www.mhc.tn.gov.in/judis
1/12
S.A.(MD)No.607 of 2006
For Appellants : Mr.R.Paranjothi for A6
No appearance for A3 to A5
For Respondent : Mr.T.Lajapathi Roy
JUDGEMENT
The defendant in O.S.No.140 of 2003 on the file of the District Munsif
Court, Melur, filed this second appeal. During the pendency of this second
appeal he passed away, his wife and children were brought on record. Later,
the second appellant/wife of the original appellant also passed away. The sons
and daughters of the original appellant remain on record. The appellants 3 to 5
engaged one counsel, while the sixth appellant engaged another counsel. On
the last occasion, there was no representation on behalf of the counsel, who had
entered appearance for the appellants 3 to 5. Therefore, their names were
directed to be printed. Today also, there is no representation on behalf of the
appellants 3 to 5. The sixth appellant is alone represented through counsel.
2.Order 41 Rule 17 of Civil Procedure Code states that when the
appellant does not appear when the appeal is called for hearing, the Court may
make an order that the appeal will be dismissed. Explanation to the said
provision states that nothing in the Sub Rule shall be construed as empowering
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
the Court to dismiss the appeal on merits. Before me, out of the four
appellants, three have not appeared but the remaining appellant is represented
through counsel. Now the issue that arises for consideration is as to whether,
I can hear the appeal on merits or not. When the respondent herein filed
E.P.No.8 of 2015 before the executing Court, it is stated that all the appellants
herein namely, appellants 3 to 6 contested the matter through a single counsel.
Therefore, I am clearly of the view that the appeal can very well be disposed
on merits, because there is no conflict of interest among the appellants and the
sixth appellant can very well be taken as representing the entire case of the
appellants. Therefore, I propose to dispose of the appeal only on merits.
3.The respondent herein namely, Baluchammy filed O.S.No.140 of 2003
for removal of compound wall and for directing the defendant to hand over the
possession of “B” schedule property. Damages were also sought. The case of
the plaintiff is that he purchased “A” schedule property vide a registered sale
deed dated 14.09.1990. The defendant/Janakiraman purchased adjacent plot
vide sale deed dated 01.11.1991. According to the plaintiff, the defendant had
encroached on plaintiff's property and put up a compound wall. This happened
in the year 1998. The plaintiff lodged a police complaint. He therefore sought
recovery of possession from the defendant.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
4.The defendant filed written statement controverting the plaint
averments. According to him, after purchasing the property under Ex.B13, he
constructed a house in March, 1992. According to him, he had not committed
any kind of encroachment. He would also state that the plaintiff admits that the
septic tank of the defendant is lying within his property. One can assume that
the septic tank would have come up contemporaneously, when the house was
put up. It is not in dispute that the defendant's house was put up way back in
the year 1992. The plaintiff is his neighbour. Therefore, the plaintiff should be
taken as having acquiesced in the construction of the septic tank as well as
compound wall. Therefore, the present suit is not maintainable. He also
contended that the suit was clearly barred by limitation.
5.The trial Court appointed an advocate commissioner. He inspected the
spot and measured the disputed sites by taking the assistance of surveyor. The
report and plan submitted by the advocate commissioner were marked as
Exs.C1 to C5.
6.The plaintiff examined himself as P.W.1 and one Gandimathi was
examined as P.W.2 and Exs.A1 to A5 were marked. The defendant examined
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
himself as D.W.1. The surveyor, who assisted the advocate commissioner was
examined as D.W.2 and Exs.B1 to B18 were marked.
7.After a consideration of the evidence on record, the trial Court by
judgment and decree dated 28.02.2005 dismissed the suit. Aggrieved by the
same, the plaintiff filed A.S.No.103 of 2005 before III Additional Sub Court,
Madurai. The first appellate Court by the impugned judgment and decree
30.11.2005, set aside the decision of the trial Court and allowed the appeal and
decreed the suit as prayed for. Challenging the same, this second appeal came
to be filed.
8.The second appeal was admitted on the following substantial question
of law:-
“(a) Though a question regarding the limitation as
part was raised by the defendant and the learned trial Judge
also categorically held that the suit was barred by
limitation, whileso, when no issue was framed by the lower
appellate Court to that effect and no finding was given on
that aspect whether its decree and judgment is sustainable
in law? and
(b) Even assuming that there is an encroachment by
the defendant, when the plaintiff having acquisined for a
period more than that of the limitation prescribed under the
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
law, is it not the plaintiff estopped from disputing it that also
well after the period of limitation?”
9.The learned counsel appearing for the sixth appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this Court
to answer the substantial questions of law in favour of the appellants and set
aside the impugned judgment and decree and restore the decision of the trial
Court. The core contention of the learned counsel appearing for the sixth
appellant is that the advocate commissioner did not measure the property
correctly. He should have measured the property with reference to the sale
deeds of the respective parties. In any event, the advocate commissioner had
no authority or jurisdiction to render a finding regarding encroachment. He
also would point out that the suit was hopelessly barred by limitation. The
plaintiff is not a stranger. He is very much a neighbour. The defendant had put
the construction way back in the year 1992. The septic tank in question was
also put up at the same time. Obviously, a residential house cannot be put up
without septic tank. When the septic tank was put up way back in the year
1992 and the plaintiff had acquiesced in its construction, he now cannot be
heard to ask for its removal. The learned counsel submitted that the trial Court
had correctly appreciated the issues on hand and dismissed the suit. He called
for restoration of the trial Court's decision.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
10.Per contra, the learned counsel appearing for the respondent/plaintiff
submitted that the impugned judgment and decree do not warrant any
interference.
11.There is no dispute that the plaintiff purchased the suit property under
Ex.A4 dated 14.09.1990 and the defendant purchased the plot under Ex.B13
dated 01.11.1991. The measurements set out in Ex.A4 are as follows:-
“East-West on the Northern side 78.04 links
East-West on the Southern side 78.02 links
South-North on the Western side 42.42 links
South-North on the Eastern side 42.42 links”
There is no dispute that 42.42 links is equivalent to 28 feet.
12.The measurements set out in Ex.B13 are as follows:-
“East-West on the Northern side 78.02 links
East-West on the Southern side 78.02 links
South-North on the Western side 37.88 links
South-North on the Eastern side 37.88 links”
There is no dispute that 37.88 lings is equivalent to 25 feet.
13.Therefore, the suit schedule property that belongs to the plaintiff must
measure 28 feet on the Eastern side South-North, while the defendant's
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
property (Plot No.71) should measure 25 feet on the Eastern side South-North.
Now, we have to see from the advocate commissioner's sketch as to whether,
the defendant's property measures 25 feet or more. The advocate commissioner
had measured the suit property by taking the assistance of a surveyor (D.W.2).
The surveyor was examined on the side of the defendant. The defendant had
not filed any objection to the advocate commissioner's report. A bare perusal of
the advocate commissioner's plan would show that the defendant has occupied
29 feet on the Eastern side North-South. According to his sale deed (Ex.B13),
it could measure only 25 feet. Of course, advocate commissioner ought not
have rendered any finding as regards encroachment. That was clearly beyond
the terms of warrant. Be that as it may, that the defendant is occupying four
feet further on the Eastern side North-South is evident from the advocate
commissioner's report and plan.
14.Having come to the conclusion that encroachment has been
committed by the defendant, the question is whether the present suit for
recovery of possession can be dismissed on the ground of limitation. The
substantial questions of law framed in this second appeal turn on the question
of limitation and acquiescence. Even according to the defendant, the
constructions were put up only in 1992. The suit was filed on 06.08.2003. In
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
other words, it has been filed within 12 years. Therefore, the suit cannot not be
said to be barred by limitation. I therefore answer the first substantial question
of law against the appellants.
15.The next question that arises for consideration is as to whether the
plaintiff can be denied relief on the ground of acquiescence. The plaintiff
admittedly kept quiet, when the septic tank was put up way back in the year
1992. 11 years after the septic tank was put up by the defendant, the suit came
to be instituted. Therefore, the plaintiff has to be necessarily denied relief in
this regard. But the plaintiff obviously did not keep quiet, when the compound
wall was put up. The construction of the compound wall commenced only in
the year 1998. Immediately, the plaintiff lodged his objection. A police
complaint was also laid. The defendant and his entire family were prosecuted
in C.C.No.872 of 2000 on the file of the Judicial Magistrate No.II, Madurai.
The case ended in acquittal. From this one can safely conclude that the
construction of the compound wall was not consented to by the plaintiff.
Therefore, the doctrine of acquiescence cannot be invoked in the case of the
compound wall. Therefore, I answer the second substantial question of law in
favour of the appellants only as regards the construction of the septic tank and
not as regards the construction of compound wall. The judgment and decree
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
passed by the first appellate Court are accordingly modified. The second
appeal is partly allowed in the following terms:-
“(i) The suit is decreed to the extent of removal of the
offending compound wall.
(ii) The septic tank can as well remain in the same spot.
The appellants can continue to utilise the said septic tank and
the plaintiff will not come in the way of same.
(iii) Considering the facts and circumstances, the
plaintiff will not be entitled to any damage. No costs.
Consequently, connected miscellaneous petition is closed.”
29.09.2021
Index : Yes / No
Internet : Yes/ No
ias
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.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
To:
1.The III Additional Sub Court,
Madurai.
2.The District Munsif Court,
Melur.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.607 of 2006
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.607 of 2006
29.09.2021
https://www.mhc.tn.gov.in/judis
