Madras High Court
Boomadevi vs Ramachandran on 5 April, 2022
S.A.(MD)No.776 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.776 of 2010
1.Boomadevi
2.Munnamalayandi .. Appellants/Respondents/
Defendants
-vs-
1.Ramachandran
2.Sethu .. Respondents/Appellants/
Plaintiffs
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree passed in A.S.No.85 of 2008 dated
28.07.2009 on the file of the 1st Additional Sub-Court, Madurai reversing
partly the judgment and decree passed in O.S.No.86 of 2006 dated
26.03.2008 on the file of the District Munsif Court, Melur.
For Appellants : Mr.V.Meenakshi Sundaram
For Respondents : Mr.Gnanagurunathan
for Mr.K.Samidurai
******
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S.A.(MD)No.776 of 2010
JUDGMENT
The defendants in O.S.No.86 of 2006 on the file of the District
Munsif, Melur are the appellants in this Second Appeal. The suit was
filed for the relief of mandatory injunction to direct the defendants to
remove the suit pipe shown as “C2” in the rough sketch and for other
reliefs. The defendants filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed the
necessary issues. The 1st plaintiff, Ramachandran examined himself as
P.W.1. Ex.A1 to Ex.A8 were marked. The 2nd defendant, Munna
Malaiyandi examined himself as D.W.1, while one Pandi was examined
as D.W.2. Ex.B1 to Ex.B4 were marked. After consideration of the
evidence on record, the trial court by judgment and decree dated
26.03.2008, dismissed the suit. Challenging the same, the plaintiff filed
A.S.No.85 of 2008 before the I-Additional Sub Court, Madurai. By the
impugned judgment and decree dated 28.07.2009, the first appellate
court reversed the decision of the trial court and partly allowed the
appeal. Challenging the same, this Second Appeal came to be filed.
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S.A.(MD)No.776 of 2010
2. The Second Appeal was admitted on 09.03.2022 on the
following substantial question of law:-
“Whether the first Appellate Court is correct in
granting mandatory injunction when the plaintiff
himself admitted that the defendants have put up their
house 15 years back and as such claim of mandatory
injunction is barred by limitation?”
3. During the pendency of the appeal, the 1st appellant passed
away. However, there was no necessity to take steps because the 2nd
appellant, who is her legal heir, is already there on record.
4. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial question of law in favour of the appellant
and set aside the impugned judgment and decree and restore the decision
of the trial court.
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S.A.(MD)No.776 of 2010
5. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference.
6. I carefully considered the rival contentions and went through the
evidence on record. The suit property is a common pathway comprised
in S.No.115/87-C in Vandiyur Village and measures 4 feet x 39.7 feet.
The suit property originally belonged to one Seeni @ Periya Karuppan
Ambalam. The 1st plaintiff was born to the said Seeni @ Periya
Karuppan Ambalam through his first wife. The 1st defendant is the 2nd
wife of Seeni @ Periya Karuppan Ambalam, while the 2nd defendant was
born to him through the 2nd wife. Partition took place on 28.02.1977 and
the family properties were divided. The certified copy of the registered
partition deed was marked as Ex.A1. There is no dispute that the suit
property is a common pathway.
7. The grievance of the plaintiff is that the defendants have
unauthorisedly and without getting their permission installed a pipe
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S.A.(MD)No.776 of 2010
described as “C2” so as to reduce the width of the common pathway. The
defendants pleaded that the suit pipe has been virtually affixed on their
wall and that it does not affect the right of the plaintiffs to use the
common pathway in any manner. The defendants also denied that they
have any intentions to dig borewell in the common pathway.
8. Now the only question that arises for consideration is whether
the suit pipe described as “C2” has to be removed or not. While the trial
court held that the same need not be removed, the first appellate court
came to the conclusion that it is liable to be removed.
9. The learned counsel appearing for the appellant contended that
the prayer for mandatory injunction is clearly barred by limitation
because the house was put up some 15 years ago and that the pipe line is
only on their eastern wall. This contention does not have any force for
the simple reason that the suit was filed in the year 2006 only for the
removal of the pipe and nothing else. Admittedly, the pipe was laid only
in 2006. Even permission from the Public Works Department was
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S.A.(MD)No.776 of 2010
obtained only on 19.06.2006 (Ex.B3). Therefore, the suit for mandatory
injunction is very much within time. I therefore, answer the substantial
question of law against the appellant.
10. The next contention strongly advanced by the learned counsel
appearing for the appellant is that the defendants are entitled to use the
common pathway to their maximum advantage and that by no stretch of
imagination, the right of the plaintiffs to enjoy the pathway is not
affected, as the suit pipe line has circumference of hardly 3 inches and
the plaintiffs can as before reach their property that is lying on the
Northern side through the suit pathway. The learned counsel relied on
the decision rendered in S.A.No.686 of 2004 dated 09.04.2018 and
S.A.No.1822 of 2004 dated 06.07.2018. Though the proposition
canvassed by the learned counsel is quite sound, coming to the facts and
circumstances of the case, it is to be noted that the common pathway is a
very small one. It has a width of just 4 feet. If 3 inches is excluded or
deducted, certainly the width would get permanently minimised.
Therefore, to that extent, the plaintiffs can be said to have suffered injury
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S.A.(MD)No.776 of 2010
and infraction of their rights. In more or less similar circumstances, a
learned Judge of this Court vide judgment dated 16.12.2011 in S.A.(MD)
No.76 of 2010 held that so far as the common pathways are concerned, it
should be taken as an invariable and inflexible rule that whenever there
is an encroachment by any of the common owners, they should
necessarily be ordered to remove such encroachment. It was further held
that the surface of the pathway must be made available to both sides as a
common passage fully. This decision, in my view, squarely applies to the
case on hand. I come to the conclusion that the first appellate court has
not committed error either in applying the law or in appreciating the facts
of the case. I do not find any merit in this Second Appeal and the same
stands dismissed. However, the 2nd appellant, Munna Malayandi is at
liberty to approach the plaintiffs seeking their permission to retain the
offending pipeline. He also states that he would be willing to
appropriately compensate the plaintiffs. After all the plaintiffs have been
made to fight their battle before three Courts from Munsif Court to the
High Court. In the event of the plaintiffs agreeing to the 2nd appellant's
request, well and good. In the event of the plaintiffs not acceding to the
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S.A.(MD)No.776 of 2010
2nd defendant's request, the 2nd defendant will be granted sufficient time
to make appropriate alterations. No costs.
05.04.2022
Internet : Yes/No
Index : Yes/No
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.
abr
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S.A.(MD)No.776 of 2010
To
1.The 1st Additional Sub Judge, Madurai.
2.The District Munsif, Melur.
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S.A.(MD)No.776 of 2010
G.R.SWAMINATHAN, J.
abr
S.A.(MD) No.776 of 2010
05.04.2022
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