Berachah Prayer Group And vs Madavaram Firka
2022 Latest Caselaw 6911 Mad

                                                                             SA.Nos.269 & 270/2022
                                                                                               and
                                                                          CMP.Nos.5626 & 5635/2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 04.04.2022

                                                      CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                  SA.Nos.269 & 270/2022 and CMP.Nos.5626 & 5635/2022


                    Berachah Prayer Group and
                    Prayer House By its
                    Secretary M.Kumar,
                    No.2/4, Rajaji Nagar, Thiruvottiyur,
                    Madhavaram Firka,
                    Ambattur Taluk, Chennai – 600 019.           .. Appellant / Respondent /

Defendant in SA.No.269/2022 Berachah Prayer Group and Prayer House By its Secretary M.Kumar, No.2/4, Rajaji Nagar, Thiruvottiyur, Madhavaram Firka, Ambattur Taluk, Chennai – 600 019. .. Appellant / Respondent / Plaintiff in SA.No.270/2022

Vs.

The Ashok Leyland Employees Co-operative Industrial Housing Society Ltd by its President Sir Ramaswami Nagar, Thiruvottriyur,

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Madavaram Firka, Chennai – 600 019. .. Respondent / Appellant / Plaintiff in SA.No.269/2022

1.Audhimoolam

2.Elumalai

3.Radhakrishnan

4.Sundaramoorthy

5.The Ashok Leyland Employees Co-operative Industrial Housing Society Ltd by its President Sir Ramaswami Nagar, Thiruvottriyur, Madavaram Firka, Chennai – 600 019. .. Respondent / Appellant / Plaintiff in SA.No.270/2022

Common Prayer:- Second Appeals filed under Section 100 of the Civil Procedure Code against the common judgments and decrees of the learned Subordinate Judge, Ponneri, passed common judgments and decrees in A.S.Nos.4 & 11/2011 dated 10.04.2019 by allowing the appeals and reversing the common decrees and judgments of the O.S.Nos.1216 & 1218/1997 passed by the learned District Munsif, Thiruvottriyur dated 04.06.2010.

For Appellant : Mr.M.Sundaramurthy

For Respondent : Mr.S.N.Ravicilandran

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COMMON JUDGMENT

(1) The defendant in the suit in O.S.No.1216/1997 who is also the

plaintiff in the suit in O.S.No.1218/1997 is the appellant in these

second appeals.

(2) The respondent in S.A.No.269/2022 as plaintiff, filed the suit in

O.S.No.1216/1997 for permanent injunction restraining the

appellant in these second appeals from interfering with the peaceful

possession and enjoyment of the respondent's property described in

that suit schedule.

(3) The appellant in these second appeals, as plaintiff in

O.S.No.1218/1997, filed the suit for permanent injunction

restraining the defendants, namely Thiru Audhimoolam, Thiru

Elumalai, Thiru Radhakrishnan, Thiru Sundaramoorthy, and the

respondent in S.A.No.269/2022 from interfering with their peaceful

possession and enjoyment of item 1 in that suit schedule. Item 1,

according to the appellant, is accessible only through item 2 and

item 3 which are described roads. In the plaint, the appellant has

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admitted that they have encroached upon and taken possession of

land, measuring an extent of 71,212 sq.ft. in S.No.618/G-3,

described as suit 1st item which is classified as Kazhivelli

Poramboke in Thiruvottiyur Village, Ambattur Taluk. The case of

the appellant is that the necessary charges are being paid by the

Trust to the Revenue Authority in respect of the building

constructed in suit 1st item.

(4) Even before the appellant filed the original suit in

O.S.No.1218/1997, the respondent in S.A.No.269/2022 had filed

O.S.No.1216/1997 praying for permanent injunction against the

appellant. The respondent in S.A.No.269/2022 is the 5th respondent

in S.A.No.270/2022. The parties are referred to hereafter as per their

ranks in S.A.No.269/2022.

(5) The suit property in O.S.No.1216/1997 is described as an extent of

2.72 acres comprised in S.A.No.618/A, at Sri Ramaswamy

Mudhaliar Nagar, Thiruvottiyur Village. The suit property in this

suit is a part of a larger property measuring to the extent of 10 acres

and 17 cents purchased by the respondent under two Sale Deeds

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dated 24.09.1962 and 12.02.1963.

(6) Before the Trial Court an Advocate Commissioner was appointed.

Though, the Trial Court found that the appellant has encroached into

the property of the respondent, the respondent is not entitled to a

decree for permanent injunction in respect of the entire suit property

as the entire property is still under his possession and there is no

cause of action. Finding that a portion of the suit property is being

used as a passage for ingress and egress and in interest of the

appellant conducting prayers, the Trial Court dismissed the suit filed

by the respondent in O.S.No.1216/1997 and decreed the suit filed by

the appellant in O.S.No.1218/1997. Aggrieved by the common

judgment and decree of the Trial Court in both the suits, the

respondent in S.A.No.269/2022 and the 5th respondent in

S.A.No.270/2022 preferred appeals in A.S.No.4/2011 as against the

judgment and decree in O.S.No.1216/1997 and A.S.No.11/2011 as

against the judgment and decree in O.S.No.1218/1997.

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(7) The Lower Appellate Court, while reversing the common judgment

and decrees of the Trial Court, held that the appellant, as plaintiff, in

the suit O.S.No.1218/1997, is not entitled to the relief of permanent

injunction and the respondent in S.A.No.269/2022, who is the

plaintiff in the suit in O.S.No.1216/1997, is entitled to a decree of

permanent injunction. Aggrieved by the common judgment and

decrees of the Courts below, the above Second Appeals are filed by

the appellant.

(8) The learned counsel appearing for the appellant submitted that the

Lower Appellate Court without hearing the arguments of the

appellant's counsel allowed both the appeals. Therefore the

judgment and decree of the Lower Appellate Court is not proper.

Learned counsel submitted that the Lower Appellate Court failed to

consider that the appellant is not claiming any title to the suit

property and that a suit for injunction is maintainable. Since, the

appellant is enjoying the suit property for free egress and ingress to

his property, the respondent who is a stranger to the suit property

cannot question the same. Learned counsel also submitted that the

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Lower Appellate Court has not considered the admitted facts or the

evidence.

(9) Though the learned counsel for the appellant did not argue on any

question of law, from the Memorandum of Grounds of appeals, it is

seen that the appellant has raised the following substantial questions

of law:

S.A.Nos.269 & 270/2022:

a. Whether the Lower Court is correct to holding that the appellant having any right for getting the permanent injunction against the respondent?

b. Whether the Lower Court below is correct in concluding that the permanent injunction issued in favour of the respondent is valid?

(10) This Court has considered the arguments of the learned counsel for

the appellant. From the findings of the Lower Appellate Court, this

Court is able to see that the appellant has encroached upon

Government Poramboke lands. It is also admitted that the

encroachment by the appellant has extended to the patta land of the

respondent in S.A.No.269/2022. The Trial Court and the Lower

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Appellate Court have concurrently held that the appellant has

encroached into the property of the respondent. There is absolutely

no dispute with regard to the title of respondent over the suit

property which is the subject matter of O.S.No.1216/1997. However,

the Trial Court erroneously held that the respondent as plaintiff in

O.S.No.1216/1997 is not entitled to a decree on the ground that they

had suppressed the material fact that the appellant has encroached

into the suit property. The respondent in S.A.No.269/2022 had

purchased the suit property in O.S.No.1216/1997 and the title of the

respondent in respect of the property covered by the Sale Deed is not

an issue before the Lower Courts or before this Court. The Trial

Court, relying upon the admission of PW2 that public uses the suit

property when they come for prayers conducted by the appellant,

erroneously decreed the suit based on the conclusion that the

appellant was using only a portion of the suit property for a passage

as ingress and egress. Without considering the commissioner's report

and the statement of the plaintiff witnesses and other evidence, the

Trial Court jumped to the conclusion that the suit property is the

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property in which the appellant have the right to access even though

the suit filed by the appellant is not for a declaration of any

easmentary right. The Trial Court has granted a decree in favour of

the appellant for injunction without proper discussion as to how the

appellant is entitled to any easement to have access to the land that

belongs to the respondent. The Lower Appellate Court has rightly

held that the appellant is not entitled to the relief for injunction.

Since the respondent has also established their title to the property

which is the subject matter of the suit in O.S.No.1216/1997, this

Court is unable to find any questions of law in both the appeals.

Since, the Lower Appellate Court has given cogent reasons, this

Court is unable to interfere with its findings.

(11) In the result, the Second Appeals are devoid of merits and hence,

dismissed. Consequently connected Civil Miscellaneous Petitions

are closed.

04.04.2022 cda Internet : Yes

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S.S.SUNDAR, J.,

cda

To

1.The Subordinate Judge, Ponneri.

2.The District Munsif, Thiruvottriyur.

3.The Section Officer, VR Records, High Court, Chennai.

SA.Nos.269 & 270/2022 and CMP.Nos.5626 & 5635/2022

04.04.2022

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