Baseeria Beevi vs Umar Ayisha
2022 Latest Caselaw 11187 Mad

                                                                                 S.A(MD).No.237 of 2011

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 27.06.2022

                                        CORAM: JUSTICE N.SESHASAYEE

                                               S.A(MD).No.237 of 2011
                                              and M.P(MD).No.1 of 2011


                     1.Baseeria Beevi
                     Moosa Mydeen(Died)
                     2.Mohamed Sultan
                     3.Rishvana Begam
                     4.(Minor) Imran Khan                           ...Appellants/Appellants 1 to 3
                                                                                 to 5/Defendants
                                                            Vs

                     Nagoor Beevi(Died)
                     1.Umar Ayisha
                     2.Liaqath Ali
                     3.Badhusha
                     4.Zahir Hussain
                     5.Ayub Khan
                     6.Umar Aptheen                                 ....Respondents/ Respondents
                                                                           2 to 7/Plaintiff

                     Prayer:Second Appeal is filed under Section 100 of Code of Civil
                     Procedure, against the judgment and decree passed in A.S.No.31 of 2009
                     dated 12.04.2010 on the file of the Subordinate Court, Kovilpatti modifying
                     the judgment and decree passed in O.S.No.39 of 2004 dated 21.04.2008 on
                     the file of the District Munsif, Kovilpatti.

                                  For Appellants       : Mr.K.Sekar

                                  For Respondents      : Mr.M.Thirunavukkarasu


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https://www.mhc.tn.gov.in/judis
                                                                               S.A(MD).No.237 of 2011




                                                    JUDGMENT

The defendants, in O.S.No.39 of 2004 on the file of the District Munsiff

Court, Kovilpatti, laid by certain Nagoor Beevi for declaration of her title

and also for mandatory injunction to remove certain encroachment, are the

appellants herein. The trial Court decreed the suit in toto and in a first

appeal preferred by the defendants in A.S.No.31 of 2009, the first appellate

Court modified the said decree, and held that inasmuch as the defendants

have encroached for a width of 8½” in 2nd item of property they only need

to pay compensation to the plaintiff. This is now under challenge. For the

narrative convenience, the parties are hereby referred to as per their rank

before the trial Court.

2. The case of the plaintiff is that she has purchased Schedule I property

from a certain Dhanalakshmiammal under Ext.A.1, dated 10.03.1970, and

that her vendor obtained the property under Ext.A.2-settlement deed.

According to her, on to her immediate eastern wall there lies a vacant space

measuring 2.125 feet wide, and this is left for discharging the eaves water of

her roof. The defendants are the next adjacent owners on further east. She

alleges that the defendants had put up a construction encroaching into this

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

stretch measuring 2.125 ft., and seeks declaration of her right over this

portion. Indeed, in the plaint it is described as item No.2 property. She also

prays for mandatory injunction for removal of encroachment.

3. In the written statement, the defendants contended that they had put up a

new construction some four years prior to the institution of the suit, and that

the defendants had acquiesced in the construction. They denied that 2nd item

of property ever belonged to the plaintiff, and even if there is any

encroachment it is lost to her by adverse possession.

4.1 The dispute went to trial, and before the trial Court the plaintiff

examined herself as P.W.1, and also examined an independent witness as

P.W.2. She produced Ext.A1 to Ext.A6, of which the relevant title

documents have already been referred to. For the defendants, the second

defendant examined himself as D.W.1, but have not produced any document

whatsoever. The trial Court has also appointed a Commission and whose

reports are also marked as Ext.C.1 and Ext.C.2.

4.2 On appreciating the evidence, the trial Court decreed the suit, and in

particular found that the defendants, though had pleaded that they had title

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

document to their property, and that they have also obtained necessary

approval from the planning authorities for the construction of their property,

they had not produced any document to establish that their construction is

well within their property.

5. Challenging the above decree, the defendants preferred the first appeal in

A.S.No.31 of 2009. The First Appellate Court however modified the decree

of the trial Court, and directed that the compensation alone need be paid by

the defendants only to the extent they have encroached the property. For

arriving at this conclusion, the Court has considered the Commissioner's

report where he has reported that in arriving at the extent of encroachment

at 8.5 inches, he had excluded the western wall of the plaintiff's house,

which implied that the alleged encroachment might be less than 8.5 inches

than what the Commissioner has indicated. For this purpose, he directed the

parties to have this extent of encroachment re-done through the

Commissioner now with the assistance of a Surveyor. This decree is now

challenged by the defendants in this appeal.

6. The Second Appeal is admitted for considering the following substantial

questions of law:

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

“i) Whether both Courts are correct by ignoring the issue No.3 regarding acquiescence and laches on the part of respondents when the suit is for mandatory injunction?

ii) Whether both Courts are correct in ignoring Section 41(g) of Specific Relief Act when the respondents have acquiesced the construction of the building by the appellants which is more than 8 years old as admitted by them as well as by the report of the advocate commissioner?

iii) Whether both Courts are correct by shifting the burden of proof regarding the encroachment on the appellants herein? and

iv) Whether the lower Appellate Court is correct in law by directing the appellants to measure the alleged encroachment by a Surveyor when there was no encroachment as alleged by the respondents herein?”

7. Opening the argument the learned counsel for the defendants took this

Court extensively through the pleading of the defendants, more particularly,

his plea of acquiescence of adverse possession, and also took this Court

specifically to the cross-examination of P.W.1, where the plaintiff has

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

conceded that the defendants had put up the construction some 7 or 8 years

ago. He would argue that the alleged encroachment involves a wall which

is the mother wall of the defendants' house, and if it is demolished, it will

cause huge inconvenience.

8. The learned counsel for the plaintiff argued that the First Appellate Court

has been fair in its approach when it directed payment of damages, and it is

impermissible for the defendants not even to pay the damages when they

found to have been encroached into the property of the plaintiff.

9. On principle, this Court agrees with the approach of the first appellate

Court. The Commissioner has visited the property and he had found that

there is an encroachment for a width of 8.5 inches and for a length of 12

feet. In other words, the encroached area is 102 sq.inche This Court finds

that the decree directing payment of compensation is fair in law. But the

second part is critical. Should the property of both sides be measured yet

again?

10. Here, the only contention of the defendants is that the Commissioner has

clearly indicated that they have left the western wall of the plaintiff and he

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

measured the property. Normally, the wall thickness would be around 4

inches and even if this is accepted, still there would be an encroachment

anywhere between 6.5 inches to 4.5 inches, depending upon whether the

entire width of the western wall of the plaintiff is measured or only half the

width of the said wall is reckoned. This is far too trivial an issue for this

Court to engage, and therefore, this Court does not want to disturb the

finding on 8.5 inches.

11. Now is the question of fixing the value for the compensation. After

hearing both sides, and also after ascertaining the fact that the property is

located even today in a Panchayat area, and also taking into account the

time when the encroachment was made, this Court holds that a sum of

Rs.25,000/- would be a fair and reasonable compensation and directs the

defendants to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand

only) as compensation for the encroachment made.

12. Now, this appeal is partly allowed and and sets aside only that portion of

the first appellate court's decree that required a remeasuring the extent of

encroachment made by the defendant through a surveyor, and fixes

Rs.25,000/- as compensation and directs the defendant to pay the same to

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

the plaintiff. No costs. Consequently, connected Miscellaneous Petition is

closed.

13. Should this decree be put to execution? Execution of a decree is an

option available to the litigant and needs to be resorted to only when the

defendants does not satisfy the decree. But, the Court which passed the

decree has every authority to ensure that its decree is obeyed. The

effectiveness of an adjudicatory process is essentially about the ability of

the Court to subject the person against whom a decree is passed to the

decree. And any disobedience to submit to the decree will invite an action

in contempt of court against the person who defies the decree of the court.

The option in execution which a decree holder may have cannot interfere

with nor can it take away the power of this court to ensure obedience to the

decree it has passed. To prevent an action in contempt, this Court directs

that the defendants are directed to pay Rs.25,000/- to the plaintiff on or

before 21.08.2022.

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

14. Post the matter on 27.08.2022 under the caption 'for reporting

settlement'.

27.06.2022

Index : Yes/No Internet: Yes/No Abr/rmk

To:

1.The Subordinate Judge, Kovilpatti.

2.The District Munsif, Kovilpatti.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis S.A(MD).No.237 of 2011

N.SESHASAYEE, J.

rmk

S.A(MD).No.237 of 2011

27.06.2022

https://www.mhc.tn.gov.in/judis