Madras High Court
A.Vijayalakshmi(Died) vs C.Palanisamy on 20 June, 2022
S.A(MD).No.324 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2022
CORAM: JUSTICE N.SESHASAYEE
S.A(MD).No.324 of 2011
and
M.P(MD).No.1 of 2011
A.Vijayalakshmi(died) ... Appellant/Respondent/Plaintiff
2.A.Karthikeyan
3.M.Vanithamani
4.A.Ganesh Kumar Ramachandran
(Appellants 2 to 4 are brought on record as LRs of the
deceased sole appellant Vide Court order dated 13.12.2021
made in CMP(MD).Nos.10422 of 2021 in SA(MD).No.324 of 2011)
.... Appellants
Vs.
1.C.Palanisamy
2.P.Thangamayil ... Respondents/Appellants/ Defendants
Prayer : Second Appeal filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 25.01.2011 made in
A.S.No.10 of 2010 on the file of the Sub-Court, Sivakasi against in
judgment and decree dated 03.03.2010 made in O.S.No.200 of 2004 on the
file of the District Munsif, Sivakasi.
For Appellants : Mr.P.Athimoolapandian
For Respondents : Mr.S.Pandiayaraj
1/8
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S.A(MD).No.324 of 2011
JUDGMENT
The plaintiff in O.S.No.200 of 2004, which she laid for declaring her right
over the suit property along with a prayer seeking an ancillary relief of
injunction, which includes mandatory injunction to remove certain
encroachment, is the appellant before this Court. While the plaintiff was
successful before the trial Court, she suffered a reversal before the first
appellate court in A.S.No.14 of 2010 filed by the defendants. For the sake
narrative convenience, the parties are referred to by their rank before the
trial Court.
2. The brief facts are:
● A certain plot No.52 originally belonged to one Solamalai. This plot
measures 60 feet East-West and 35 feet North-South. On 12.11.1973,
Solamalai vide two separate sale deeds (Ext. A1 and Ext. B5)
respectively sold the northern half of plot No.52 to the plaintiff, and
the southern half of plot No.52 to the defendants. This is an admitted
fact on either side.
● According to the plaintiff, on 05.02.2004, when she was not in
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S.A(MD).No.324 of 2011
station, the defendants put up a compound wall by encroaching into
0.75 feet into her property, and seeks declaration of title over 60 feet
by 0.75 feet strip that lies on the southern extremity of the plaintiff's
property.
3. The defendants inter alia pleaded in their written statement that the site
on which the compound wall was constructed belonged to them and made a
counter allegation that the plaintiff had encroached into their property.
4.1 During trial both the sides adduced oral and documentary evidence. The
trial Court also appointed an Advocate-Commission, and the Commissioner
has filed his report Ext. C.1. In this, the Commissioner has found that the
defendants have encroached into item No.2 of the suit property. No
objection seems to have been made to the Commissioner's report nor the
Commissioner was cross-examined. Appreciating the evidence before it, the
trial Court has decreed the suit.
4.2 Aggrieved by the decree of the trial Court, the defendants preferred the
first appeal in A.S.No.10 of 2010 before the Sub Court, Sivakasi. The First
Appellate Court has taken a view that the burden is on the plaintiff to prove
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S.A(MD).No.324 of 2011
that her northern owner has not encroached into the property on the north.
Hence this second appeal by the plaintiff.
5. This Second Appeal is admitted for considering the following substantial
questions of law:
(i)Whether the First Appellate Court was right in placing the burden
of proof on the plaintiff for the defence raised by the defendants?
(ii)Whether the First Appellate Court was right in not properly
appreciating the Advocate Commissioner's report?
6. Heard both sides. The dispute is over an encroachment of 0.75 feet to
the south of the plaintiff's property. The Commissioner says that there
indeed is a narrow strip of land measuring 0.75 feet to the immediate south
of the residential building of the plaintiff it is within her property. What the
defendants/respondents have done is that they had closed this narrow strip
of land, both on the east and also on the west to deny the plaintiff access
into this property.
7. The learned counsel for the defendants/respondents fairly conceded on
instructions, that the plaintiff has 0.75 feet to the immediate south of her
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S.A(MD).No.324 of 2011
residential building, but only expressed his worry that in the guise of using
that 0.75 feet, the plaintiff might stay into the property of the defendants.
The learned counsel for the plaintiff submitted that he would take utmost
care to ensure that the plaintiff does not step into the property of the
defendants, which is to the south of the above referred to 0.75feet. Some
photographs were also shown which show that the property of both the
parties appears to have been fully constructed.
8. Even though much arguments are advanced based on burden of proof,
since the defendants had fairly conceded the fact proved by evidence, this
Court does not consider it necessary to travel much in to issues covered by
the substantial questions of law. With a view to find a lasting solution
between the neighbours, this Court chooses to declare the title of the
plaintiff over 'B' schedule property and also to direct the defendants to
remove the wall closing access to the plaintiff to her 0.75 feet both on the
east and west.
9. The learned counsel for the defendants undertakes that it would be done
within a period of six weeks from today (ie., 20.06.2022). Inasmuch as the
defendants have given an undertaking to remove the said construction to
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S.A(MD).No.324 of 2011
avoid any further dispute over the same, this Court appoints
Mr.V.Vigneshwarapandiyan, Enrollment No.2754/2018, 71, Law Chambers,
Madurai Bench of Madras High Court, Madurai (Mobile No:90805 06430)
as Advocate-Commissioner to oversee the removal of the obstructed wall.
His remuneration is fixed at Rs.10,000/-, which shall be shared by both
sides equally.
10. The Second Appeal is allowed, and the judgement and the decree of the
first appellate court in A.S.No.10 of 2010 is set aside. No costs.
Consequently, connected Miscellaneous Petition is closed.
11. Post this Appeal on 17.08.2022 under the caption 'For Reporting
Compliance'.
20.06.2022
Index : Yes/No
Internet: Yes/No
rmk
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S.A(MD).No.324 of 2011
To:
1.The Sub-Judge, Sivakasi.
2.The District Munsif, Sivakasi.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court
Madurai.
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S.A(MD).No.324 of 2011
N.SESHASAYEE, J.,
rmk
S.A(MD).No.324 of 2011
20.06.2022
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