Madras High Court
Mottaraj @ Kuppusamy (Died) vs P.Velusamy on 22 December, 2023
S.A.No.266 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2023
CORAM
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.266 of 2006
1.Mottaraj @ Kuppusamy (died)
2.M.Bakkiyam @ Dhana Bakkiyam
3.M.Indumathy
4.M.Punitha
5.M.Raju … Appellants
(Appellants 2 to 5 were impleaded as legal heirs of
the deceased first appellant vide order dated 18.12.2013
in C.M.P.No.976 to 978 of 2013)
-Vs-
1.P.Velusamy
2.Valliammal ...Respondents
Prayer:- Second Appeals filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 29.07.2005 in A.S.No.10 of
2004 passed by the learned I Additional Sub Court, Coimbatore,
reversing the judgment and decree dated 24.02.2004 in O.S.No.783 of
2001 passed by the learned II Additional District Munsif, Coimbatore.
Page 1 of 12
https://www.mhc.tn.gov.in/judis
S.A.No.266 of 2006
For appellants : M/s.G.K.Muthukumar
For respondents : No appearance
*****
JUDGMENT
The instant second appeal has been filed at the instance of the
plaintiff. Subsequently, after demise of the sole appellant/plaintiff, the
legal heirs were impleaded as appellants 2 to 5. The respondents herein
were the defendants before the Trial Court.
2. For the sake of convenience, the parties will be referred to
according to their litigative status as before the Trial Court.
The brief facts, which give rise to the instant second appeal, are as
follows:
3. The plaintiff and the first defendant are brothers and the
second defendant is sister-in-law of the plaintiff as well as the first
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defendant i.e.,wife of their another brother one Mr.Arusamy. Already,
there was a partition suit among the family members in O.S.No.837 of
1987 and in the said partition suit, a compromise decree was entered. By
virtue of the said compromise decree, ‘B’ schedule property was allotted
to the plaintiff and ‘D’ schedule property was allotted to the first
defendant. According to ‘D’ schedule property, the first defendant is
entitled to only 52 feet north-south upto the eastern eteri. The ‘B’
schedule property, which was allotted to the plaintiff, is on the northern
side of ‘D’ schedule property i.e.first defendant’s property and the
plaintiff dug a borewell in the edge of his property. Since the plaintiff has
a business in Mysore, he used to shuttle between Coimbatore and
Mysore. Taking advantage of the plaintiff’s absence, the first defendant
encroached upon the plaintiff’s property. Hence, the plaintiff came
forward with the suit for the relief of mandatory injunction to remove the
encroachment and for permanent injunction.
4. The said suit was resisted by the defendants by contending
that there was no encroachment at all. Even in the earlier suit in
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O.S.No.298 of 1997 filed by the first defendant, the plaintiff did not
allege the said encroachment, which is now pleaded in the plaint.
Therefore, the alleged encroachment mentioned in the plaint is false.
Hence, they prayed to dismiss the suit.
Evidence and documents:
5. Before the Trial Court, on behalf of the plaintiff, the plaintiff
examined himself as P.W.1 and two more witnesses viz., Mr.Sadayappan
and Mr.P.Geetha were examined as P.W.2 and P.W.3, respectively.
Twelve documents were marked as Exs.A1 to A12. On behalf of the
defendants, the first defendant examined himself as D.W.1 and two
documents were marked as Exs.B1 and B2.
Findings of both the Courts below:
6. The Trial Court, after considering the oral and documentary
evidence, decreed the suit as prayed for. Aggrieved by the same, the first
defendant approached the First Appellate Court by way of the appeal.
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The First Appellate Court confirmed the decree of permanent injunction
in respect of ‘A’ schedule property, however, declined to grant
mandatory injunction in respect of ‘B’ schedule property. Challenging
the said finding, the plaintiff is now before this Court by way of this
second appeal.
Substantial questions of law:
7. At the time of admission on 13.03.2006, this Court framed
the following substantial questions of law:
“1. Whether the lower appellate court right in
reversing the well considered judgment and decree of the
trial court without holding that the 1st respondent is
estopped claiming against the appellant herein in respect
of the disputed portion of the suit property having admitted
the same as that of the Plaintiff herein by accepting the
Advocate Commissioner's Plan and report, submitted in
the earlier suit in O.S.No.298 of 1997 and marked as
Ex.A9 and A10 in this proceedings?
2. Whether the 1st respondent/1st defendant is not
entitled to claim against the Plaintiff on the ground of
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principles of estoppel which operates by virtue of the
admissions rendered in the earlier proceedings in
O.S.No.298 of 1997 especially when the 1st respondent has
not disputed the correctness or otherwise of the
measurement made under Ex.A10-Surveyor plan adopted
by the Advocate Commissioner?”
Submission made by the learned counsel for the appellants:
8. The learned counsel appearing on behalf of the
appellants/plaintiff would vehemently submit that the finding rendered
by the First Appellate Court in respect of the mandatory injunction is in
contravention to the oral and documentary evidence. The learned counsel
for the appellants by relying upon Ex.A2/compromise decree, would
contend that the first defendant was allotted only 52 feet on either side.
Whereas even according to the Commissioner’s report, he was in
encroachment of 2 feet and the measurement of the encroachment could
be very well demonstrated through the Commissioner’s report. The
Commissioner’s report and sketch, which were filed in the earlier suit in
O.S.No.298 of 1997 by the first defendant, were marked as Exs.A9 and
A10.
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9. It is also the contention of the learned counsel for the
appellants/plaintiff that as per Ex.A2/compromise decree, there is a
reference that the plaintiff is entitled to the north-south measurement of
52 feet and east-west measurement upto eteri. When there is a proof of
encroachment beyond 52 feet as per Exs.A9 and A10/Commissioner's
report, the First Appellate Court cannot deny the relief of mandatory
injunction with the finding that there is no document to show the east-
west measurement is 112 feet. Hence, he prayed to allow this second
appeal.
10. Despite the names are printed, there is no representation on
behalf of the respondents.
11. This Court has given its anxious consideration to the
submission made by the learned counsel for the appellants.
Analysis of the submission made by the appellants:
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12. The main contention put forth by the learned counsel for the
appellants is that as per Ex.A2/compromise deed, there is a reference of
52 feet and as per Exs.A9 and A10/Commissioner’s report, there is a
measurement of 52.5 feet on the eastern side, and 52.5 feet on the
western side. The learned counsel for the appellants would submit that
this is beyond the land, which was allotted to the first defendant. Though
the contention of the learned counsel for the appellants is acceptable to
some extent, if we look at the finding recorded by the First Appellate
Court, the First Appellate Court is of the view that there is no proof for
the east-west measurement of 112 feet. Since the appellants/plaintiff
came forward for the relief of mandatory injunction, which is an extra
ordinary relief, they ought to have proved before this Court in respect of
the measurement in all sides.
13. Apart from that, the Trial Court has referred about the
defence put forth by the plaintiff herein as a defendant in another suit in
O.S.No.298 of 1997. Wherein, this plaintiff took a defence that the
defendants herein has encroached only at the place where the borewell
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was dug. In this aspect, the finding of fact recorded by the First appellate
Court assumes much significant, though there was a little variation in
north-south measurement on the eastern side and western side.
14. Apart from that, admittedly, there is a finding given by the
Trial Court in respect of limitation by stating that the encroachment made
by the defendants will be a continuing cause of action. Therefore, the
filing of the suit even beyond the period of three years, cannot be held to
be barred by limitation and in this regard, the Trial Court has relied upon
the judgment passed by the Allahabad High Court in the case of
Rajaram and others vs. Bahadur and others [reported in AIR 1980
Allahabad 115]. But, this Court disagrees with the above finding. In the
case on hand, though the encroachment admittedly took place prior to
three years, through such encroachment, no other day to day activities of
the plaintiff was affected to have continuing cause of action.
15. It is pertinent to mention here that under Section 100 of
C.P.C, the power of this Court is limited and this Court can go only into
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the substantial questions of law. For easy understanding of Section 100
of C.P.C, this Court deems it appropriate to refer the judgment of Hon'ble
Supreme Court in the case of Hero Vinoth (minor) vs. Seshammal
[reported in (2006) 5 SCC 545].
16. The learned counsel would reiterate his contention that
based on Ex.A2/compromise deed, the plaintiff was allotted a property,
which was on the northern side of the first defendant’s property and the
plaintiff’s property stretches ease-west upto eteri. Therefore, it is
sufficient to held that their extent is 112 sq.ft. Since because there is a
possibility for different view, cannot be a reason for interfering with the
judgment rendered by the First Appellate Court, unless it is perverse. On
harmonious reading of the judgment rendered by the First Appellate
Court, the finding recorded by the First Appellate Court is based on
material and this Court could not find any perversity over the same.
17. Therefore, in view of the above detailed discussions, the
substantial questions of law are answered in favour of the respondents.
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18.In the result, this second appeal is dismissed by confirming the
judgment and decree passed by the First Appellate Court. There shall be
no order as to costs.
22.12.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
apd
To
1. The I Additional Sub Court, Coimbatore.
2. The II Additional District Munsif, Coimbatore.
3. The Section Officer, V.R. Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.KUMARAPPAN, J.
apd
22.12.2023
https://www.mhc.tn.gov.in/judis
