Madras High Court

P.Sriramulu vs A.Pitchandi on 3 July, 2023

                                                                 1

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 03.07.2023

                                                           Coram:

                                  The Honourable Mr.Justice A.D.JAGADISH CHANDIRA

                                                    S.A.No.383 of 2023

                     P.Sriramulu                                                  .. Appellant

                                                           Vs.

                     A.Pitchandi                                                  .. Respondent

                                    Second Appeal filed under Section 100 C.P.C., against the
                     judgment and decree dated 24.01.2023 made in A.S.No.64 of 2019
                     on the file of Principal Sub Judge, Vellore, Vellore District,
                     confirming the judgment and decree dated 25.02.2019 made in
                     O.S.No.378 of 2010             on the file of Additional District Munsif,
                     Vellore.


                                    For Appellant     :          Mr.M.Prabhakar



                                                          JUDGMENT

Defendant, who suffered a decree of permanent injunction,

the same having been confirmed by the Appellate Court, has

preferred the present Second Appeal.

2. The case of the plaintiff is as under:-

(i) The suit property belongs to the plaintiff having been

purchased by him from one S.V.P.Periyannan and six others, by https://www.mhc.tn.gov.in/judis

virtue of sale deed dated 29.1.1997. After purchase of the

same,the plaintiff had put up a shed with tin sheet roof and has

been using the same as a godown for storing materials in

connection with his business. The plaintiff has been in continuous,

open and uninterrupted peaceful possession over the suit property

from the date of purchase. On the southern side of the suit

property, the plaintiff has got his house in which he has been

residing with his family. On the norther side, the plaintiff has got

another property. On the southern side of the suit property, there

is a 10 feet height compound wall which was put up by his

predecessor in title and the same has been shown as "EF" in the

rough plan annexed with the plaint. The plaintiff has been granted

Patta in respect of the suit property.

(ii) The defendant, a neighbour of the plaintiff having his

house on the southern side, by laying a false claim over a portion

of the suit property, on 10.10.2010 made an attempt to demolish a

portion of the compound wall on the eastern side. The defendant

had already encroached a portion to a length of about 5 feet.

(iii) Despite the attempts of the plaintiff to prevent him,

the defendant has been wielding threat to encroach the suit

property belonging to the plaintiff and hence, the suit.

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

3. Denying all the plaint allegations in general, the

defendant has filed the written statement contending as under:-

i) The defendant owns his property on the southern side of

the plaintiff's property. The defendant had perfected his title by

adverse possession also. It is only the plaintiff, who had been in

actual encroachment of the defendant's property and the same

has been found out by the revenue officials while measuring the

same and when it has been questioned by the defendant, the

plaintiff filed the vexatious suit and thereby, the plaintiff is not

entitled to get any relief.

ii) If at all any remedy is required, the plaintiff had to file

a suit for declaration of his title over the suit property and the

present suit filed for permanent injunction in simplicitor is not

maintainable.

iii) The suit is bad for non-joinder of necessary parties as

the plaintiff has not impleaded his adjacent neighbours and in all,

the suit is liable to be dismissed.

4. On the above pleadings, the Trial Court framed the

following issues:-

i) Whether the suit without prayer for declaration of title is

maintainable?

ii) Whether the suit is bad for non-joinder of necessary https://www.mhc.tn.gov.in/judis

parties?

iii) Whether the plaintiff is entitled for decree of

permanent injunction?

iv) To what other relief?

5. Before the Trial Court, the plaintiff had examined

himself as PW1 and another witness as PW2 and marked two

documents viz., Certified copy of the sale deed dated 29.1.1997

and Patta as Exs.A1 and A2. On the side of the defendant, the

defendant examined himself as DW1 and examined two more

witnesses as DW2 and DW3 and marked five documents as Exs.B1

to B5. The Advocate Commissioner was examined as CW1 while

his Report and plan were marked as Exs.C1 and C2.

6. On examination of the oral and documentary evidence,

the Trial Court had decreed the suit filed by the plaintiff granting

permanent injunction restraining the defendant. On examination

of the entire materials and the judgment of the Trial Court, the

first Appellate Court concurred with the finding of the Trial Court.

Aggrieved against the same, the plaintiff has come up with the

present Second Appeal.

7. Heard the learned counsel appearing for the appellant https://www.mhc.tn.gov.in/judis

and perused the judgments of the courts below in the light of the

question of law raised by the Appellant.

8. The appellant has sought to raise two questions of law,

the intent of which appears to be that the courts below have

arrived at the conclusion merely on the basis of the Advocate

Commissioner's Report without analysing the documentary

evidence and without complying with the provisions of Section 101

of the Evidence Act.

9. The grievance of the plaintiff is that the defendant, his

neighbour has become a threat to the peaceful possession and

enjoyment of the suit property by the plaintiff by his attempts to

demolish the compound wall on the southern side of the suit

property. The permanent injunction sought for by the plaintiff is

against the attempt of the defendant to demolish the compound

wall to interfere with the plaintiff's possession of the suit property.

The plaintiff has pleaded his specific right and title over the suit

property by producing Ex.A1. The defendant is his neighbour as

evidenced by Ex.B1 possessing the adjoining property. The Trial

Court, having gone through the oral and documentary evidence,

found that the plaintiff's property bears Survey No.142/2A16 and

the defendant's property bears Survey No.142/2 and thereby they https://www.mhc.tn.gov.in/judis

hold title for separate properties and the dispute between them

relates only to the compound wall constructed on the southern side

of the plaintiff's property.

10. On finding that both plaintiff and the defendant claim

possession in respect of two separate properties by virtue of the

sale deeds standing in their names and the dispute is only in

respect of the compound wall which is claimed by the plaintiff as

having been constructed by his predecessor in title, the Trial Court

has rightly found that the suit filed for permanent injunction in

simplicitor without seeking a relief of declaration of title is suffice.

Having found that the plaintiff's title is not in dispute or under a

cloud, the appellate court had concurred with the Trial Court on the

finding that the suit filed for permanent injunction without seeking

a relief of declaration of title is suffice.

11. With regard to the defence taken by the defendant

contending that the suit is bad for non-joinder of necessary

parties, the Trial Court has rightly found that the claim of the

plaintiff is not in respect of any other neighbours and thereby,

there is no necessity for impleading any other neighbours and the

suit is not bad for non-joinder of necessary parties.

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

12. The legal provision, which the defendant alleges to

have been not complied with by the courts below viz., Section 101

of the Evidence Act reads as under:-

"101. Whoever desires any Court to give judgment

as to any legal right or liability dependent on the

existence of facts which he asserts, must prove

that those facts exist. When a person is bound to

prove the existence of any fact, it is said that the

burden of proof lies on that person."

13. Of course, the Trial Court has found that there is no

mentioning about the wall in Ex.A1, sale deed of the plaintiff.

Equally, it has been found that in Ex.B1 sale deed of the

defendant, which is earlier in time, there is no mentioning about

the wall. However, it appears that the existence of the wall itself

has been disputed by the defendant. At this juncture, it is relevant

to note that the defendant has taken a conflicting stand in para 5

of the written statement to the effect that he had been in

possession and enjoyment of the property as per the

documents under which he had purchased the same and he

had perfected his title by adverse possession also, which is

against the settled principle that plea of title and adverse https://www.mhc.tn.gov.in/judis

possession are mutually inconsistent and both cannot be advanced

simultaneously.

14. It is still worse that the defendant had laid almost a

counter claim to the effect that it is only the plaintiff who had

been in actual encroachment of the defendant's property and

the same has been found out by the revenue officials while

measuring the same and when this has been questioned the same

by the defendant with the plaintiff, the plaintiff had filed the

vexatious suit against the defendant. Had it been true, the

defendant would have been the first person to knock the doors of

the court by producing any revenue records in support of his claim.

Even in the present suit also, he has not chosen to produce any

such records.

15. The plaintiff claims existence of the wall as having

been constructed by his predecessor in title and thereby his

ownership to the same, but, the defendant comes out with an

unclear picture. He tries to take advantage of non-mentioning

about the wall in Ex.A1 sale deed of the plaintiff to contend that

the wall was no in existence at the time of purchase of the

property by the plaintiff. Similarly, there is no mentioning about

the same in Ex.B1 sale deed of the defendant. Therefore, if the https://www.mhc.tn.gov.in/judis

wall was constructed by the plaintiff after his purchase of the suit

property, the defendant would have objected and prevented the

same in the manner known to law.

16. Without having taken recourse to any such action, the

defendant comes out with denial of existence of the wall itself,

which necessitated for appointment of Advocate Commissioner to

arrive at a concrete decision and subsequently, relying on the

Report of the Advocate Commissioner and the logical inference

made by the Advocate Commissioner, the existence of the wall and

its ownership were decided by the Trial Court. When there is some

ambiguity or dearth of information in the documents relied on by

the parties, the courts will be left with no other option except to

have a clear cut picture only by way of appointing Advocate

Commissioner. Therefore, this court does not find any error or

infirmity in such a course of action adopted by the Trial Court.

Having gone through the documentary evidence on both sides and

considering the Report of the Advocate Commissioner, the Trial

Court found that the wall belongs to the plaintiff and granted the

relief of permanent injunction as prayed for. Therefore, this court

is of the view that the question of non-compliance of legal

provision will not arise in this case.

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

17. The appellate court after re-appreciating the oral and

documentary evidence and analysing decision rendered by the Trial

Court concurred with the view of the Trial Court both on facts

and law.

18. Having carefully analysed the materials available on

record including the judgments of both the courts, this court is of

the view that no substantial question of law is involved in the

appeal requiring admission.

19. The Hon'ble Apex Court in Kirpa Ram (D) Tr.Lrs.

vs Surender Deo Gaur (2020 Scc OnLine SC 935) has

categorically held as under:-

"23. Sub-section (1) of Section 100 of the Code

contemplates that an appeal shall lie to the High

Court if it is satisfied that the case involves a

substantial question of law. The substantial

question of law is required to be precisely stated

in the memorandum of appeal. If the High Court

is satisfied that such substantial question of law

is involved, it is required to formulate that

question. The appeal has to be heard on the https://www.mhc.tn.gov.in/judis

question so formulated. However, the Court has

the power to hear appeal on any other

substantial question of law on satisfaction of the

conditions laid down in the proviso of Section

100 of the Code. Therefore, if the substantial

question of law framed by the appellants are

found to be arising in the case, only then the

High Court is required to formulate the same for

consideration. If no such question arises, it is not

necessary for the High Court to frame any

substantial question of law. The formulation of

substantial question of law or re- formulation of

the same in terms of the proviso arises only if

there are some questions of law and not in the

absence of any substantial question of law. The

High Court is not obliged to frame substantial

question of law, in case, it finds no error in the

findings recorded by the First Appellate Court."