Madras High Court
Devaraj vs Thankappan on 18 October, 2022
S.A(MD)No.657 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2022
CORAM: JUSTICE N.SESHASAYEE
S.A(MD).No.657 of 2009
Devaraj ... Appellant/Appellant/Defendant
Vs.
Thankappan ... Respondent/Respondent/Plaintiff
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 21.04.2009 in A.S.No.78
of 2007 on the file of the first Additional Subordinate Judge's Cort, at
Nagarkoil at Padmanabhapuram confirming the judgment and decree dated
09.06.2007, made in O.S.No.314 of 2003 on the file of the Court of the
Additional District Munsif, at Padmanabhapuram.
For Appellant : Mr.Gomathi Sankar
For Respondent : Mr.A.Prabhu Rajadurai
JUDGMENT
The defendant in O.S.No.314 of 2003 is the appellant herein. The suit was
initially laid for prohibitory injunction seeking to restrain the defendant not
to interfere with the plaintiff's possession of the suit property.
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S.A(MD)No.657 of 2009
2. A commission came to be appointed by the trial court and the
Commissioner's report has indicated that the defendant is in possession of
247 sq links in excess of his entitlement. This apart, the defendant has also
put up a shopping complex in his plot. In these circumstances, the plaintiff
amended the plaint to include the relief of mandatory injunction to remove
the construction so put up by encroaching into his property and also for
recovery of possession.
3. The facts fall within a narrow compass and it does not require large
discussion or deliberation in view of the conclusion to be indicated later in
this judgment. For narrative convenience, the parties would be referred to as
per their rank before the trial court.
4. A certain Chellaiah Nadar owned 11.600 cents in S.No.259/13 of
Veeyannoor Village. He died in 1992 and his 4 sons namely, the plaintiff,
the defendant, one Paulraj and another Sundararaj succeeded to this
property. Under Ext.A.1 partition deed dated 02.12.1998, the 4 brothers
divided this property into 4 different plots. Under the partition deed, the
plaintiff was allotted 'C' schedule property and the plot allotted to him has
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S.A(MD)No.657 of 2009
been referred to as plot 13-C. This plot is said to have an extent of 2 cents
and 900 sq.links. This substantially matches the description as to the extent
of the suit property as given in the plaint. The defendant was allotted 'A'
schedule property in Ext.A.1 and his plot is referred to as 13-E and he is
given 2 cents and 400 sq.links. When the plaintiff apprehended that his
brother, the defendant herein, might have encroached his property, he laid
the suit.
5. As earlier stated, a Commission came to be appointed and the
Commissioner in his report has indicated that the defendant is in occupation
of an extent of 247 sq links in excess of his own entitlement, which he
obtained under Ext.A.1 partition deed. The Commissioner has also indicated
to the extent that there is shortage of area available for the plaintiff. Based
on this, the suit came to be decreed and the same was confirmed by the First
Appellate Court. Hence, this Second Appeal.
6. This Second Appeal is admitted for considering the following substantial
questions of law:
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S.A(MD)No.657 of 2009
i) Whether he plaintiff was not entitled to the grant of
permanent injunction and mandatory injunction under
Sections 38,39 and 41 of the Specific Relief Act?
ii) Whether the Court below following the Ruling in AIR
1981 Mad. ought to have refused the discretionary relief
of mandatory injunction since the acquiescence of the
plaintiff in the construction of the defendant's first and
second floors?
iii) Whether by his conduct in encroaching on the defendant's
property the courts allowing the cross claim of the
defendant the plaintiff was not entitled to the equitable
relief of injunction?
7. Heard the learned counsel for the appellant and the learned counsel for
the respondent.
8. It is now indisputable fact that the defendant has put up a shopping
complex in his property. But, demolition of building at this point of time
would cause grave inconvenience besides financial loss to the defendant.
Therefore, in fitness of things, it is only appropriate to direct the defendant
to pay compensation to the extent of value of the property that he had
encroached. Indeed, there is also another difficulty in granting a decree for
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S.A(MD)No.657 of 2009
recovery of possession since the Commissioner has not indicated where
exactly in the plot allotted to the plaintiff the encroachment by the defendant
had taken place.
9. Accordingly, this Court allows this appeal by setting aside the judgment
and decree dated 21.04.2009 in A.S.No.78 of 2007 on the file of the first
Additional Subordinate Judge's Court, at Nagarkoil at Padmanabhapuram
confirming the judgment and decree dated 09.06.2007, made in O.S.No.314
of 2003 on the file of the Court of the Additional District Munsif, at
Padmanabhapuram. This Court modifies the decree to one for payment of
compensation by the defendant to the plaintiff and remands the matter back
to the trial court, which shall grant an opportunity to both sides to determine
the current market value for computing the compensation amount. The
parties are directed to appear before the trial court on 03.11.2022. No costs.
18.10.2022
Index : Yes/No
Internet: Yes/No
CM
Note: Issue order copy on 20. 10.2022
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S.A(MD)No.657 of 2009
To
1.The Additional Subordinate Judge's Cort, at Nagarkoil at
Padmanabhapuram
2.The Additional District Munsif, at Padmanabhapuram.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
N.SESHASAYEE, J.,
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S.A(MD)No.657 of 2009
CM
S.A(MD).No.657 of 2009
18.10.2022
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S.A(MD)No.657 of 2009
S.A.(MD) No.657 of 2009
N.SESHASAYEE, J.
This case is listed today under the caption 'for being mentioned'.
2. There is a clerical/typographical error occurred in paragraph No.4 of the
judgment of this Court dated 18.10.2022. At page No.3, in second line, it
must be 400 sq.links instead of 900 sq.links and in fifth line, it must be 900
sq.links instead of 400 sq.links.
3. Registry is now required to carry out necessary correction and is required
to issue a fresh certified copy to the parties who have already been issued a
certified copy at free of charge.
4. In view of this, time is extended for the parties to appear before the trial
Court from 03.11.2022 to 07.11.2022.
01.11.2022
ssb
Note: Issue Order Copy on 01.11.2022.
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S.A(MD)No.657 of 2009
N.SESHASAYEE, J.
ssb
S.A.(MD) No.657 of 2009
01.11.2022
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