Madras High Court

Jeyanthi vs Manikandan on 26 September, 2025

                                                                                       S.A.(MD)No.312 of 2019

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             Reserved on : 12.08.2025

                                           Pronounced on : 26.09.2025

                                                         CORAM

                                  THE HON'BLE DR. JUSTICE A.D. MARIA CLETE

                                             S.A.(MD)No.312 of 2019
                                                      and
                                       C.M.P.(MD)Nos.6311 & 10990 of 2019

                     Jeyanthi,
                     W/o. Esakkimuthu,
                     125, Thirumalaisamypuram,
                     Naagal Nagar,Dindugal Town,
                     Dindugal District           ... Appellant/Respondent /Plaintiff


                                           Vs.
                     Manikandan,
                     S/o. Pitchai Naidu,
                     49, Raju Nayakkar Compound,
                     Naagal Nagar,Dindugal Town,
                     Dindugal District.
                     Now Residing at-
                     Old No. 70, New No. 124,
                     Thirumalalsamypuram,
                     Near Lalitha Bankers
                     Dindugal.                   ... Respondent/Appellant/Defendant

                     PRAYER in SA: The Second Appeal filed under Section 100 C.P.C., to
                     set aside the judgment and Decree passed in A.S.No. 19 of 2017 on the
                     file of the Principal Sub Court, Dindugal, dated 01.03.2019 reversing the

                     1/13




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                                                                                            S.A.(MD)No.312 of 2019

                     judgment and decree passed in O.S.No. 710 of 2009 on the file of the
                     Additional District Munsif Court, Dindugal, dated 23.01.2017 and thus
                     render justice.


                     PRAYER in CMP(MD)No.6311 of 2019:
                                  To grant an order of temporary injunction forbearing the
                     respondent his men           agents and servants from interfering with the
                     appellant’s peaceful possession and enjoyment of the suit schedule
                     property and not to put up any construction and change the character of
                     the suit schedule property the subject matter in OS.No.710 of 2009 on
                     the file of the Additional District Munsif Court                       Dindigul pending
                     disposal of this second appeal and thus render justice.


                     PRAYER in CMP(MD)No.10990 of 2019:
                                  To vacate the interim injunction granted in CMP No.6311 of 2019
                     in SA No.312 of 2019 dated 12.11.2019 on the file of this Honourable
                     Court and thus render justice.

                     APPEARANCE OF PARTIES:

                     For Appellant           : Mr.N.GA. Natraj, Advocate

                     For Respondent          : Mr.S.M.Thirunavukkarasu, Advocate


                                                          JUDGMENT

Heard.

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2. This Second Appeal has been preferred against the judgment

and decree dated 01.03.2019 passed in A.S. No.19 of 2017 by the learned

Principal Subordinate Judge, Dindigul, whereby the judgment and decree

dated 23.01.2017 in O.S. No.710 of 2009 passed by the learned

Additional District Munsif, Dindigul, was reversed.

3. For convenience, the parties will be referred to by their ranks as

in the trial court.

4. At the time of admitting the Second Appeal on 19.07.2019, this

Court framed the following substantial questions of law for

consideration, which are extracted verbatim below:

I. Whether the 1st appellate court was correct in allowing the

appeal on the wrong notion as though the respondent is a co-owner

along with the plaintiff, relying on the boundary recitals mentioned

in the sale deed Ex A5, when it is not the case of the respondent that

he is the co-owner?

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II. Whether the 1st appellate court is correct in disallowing

mandatory injunction when all the constructions except the

impugned constructions described in the plaint are put forth during

the pendency of the suit as per the Commissioner’s report?

III. Whether the 1st appellate court is correct in not ordering

mandatory injunction when admittedly all the impugned

construction are made during the pendency of the suit either in the

exclusive property of the Plaintiff or in a Co-owner’s property; and

thus committing an error of encouraging illegality being committed?

5. The appellant herein, who was the plaintiff before the Trial

Court, instituted O.S. No.710 of 2009 seeking a declaration of title, a

decree of permanent injunction, and a decree of mandatory injunction.

6. The suit schedule property measures East–West 47’ and North–

South 35’, totalling 1645 sq. ft. The present dispute, however, is

confined to a narrow strip of land measuring 47’x 2’ (94 sq. ft.), forming

the northern boundary of the plaintiff’s property and the southern

boundary of the defendant’s property.

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7. According to the plaintiff, under Ex.A5 he purchased the

property measuring 47’ x 35’ . His building, however, extends only up to

33’ North–South, leaving a strip of 2’ on the northern side, which forms

the lane in question. He contends that this 2’ passage is also part of his

purchase under Ex.A5 and that he is entitled to rights over the northern

common lane as recited therein.

8. The defendant, on the other hand, claims title under Exhibits.A6

to A8. Originally, the property belonged to one Parvathi Ammal, who

settled it in favour of her husband, Muthusamy Naidu, under Ex.A6. The

extent of the property so settled measured East–West 100’ and North–

South 27’. The successors in title of Muthusamy Naidu sold the

property to the defendant’s mother under Ex.A7, describing it as

measuring East–West 100’ and North–South 28’ on the western side and

29’ on the eastern side. Thereafter, the defendant’s mother in turn settled

the property in favour of the defendant under Ex.A8. Thus the vendors

of the defendant’s mother had conveyed an extent larger than what they

were lawfully entitled to, a fact which also stood admitted during the

cross-examination of D.W.1.

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9. The defendant further contended that the plaintiff had no direct

access to the disputed strip of land and, therefore, could not assert any

right over it.

10. The Trial Court, upon appreciation of the oral and

documentary evidence, held that the 2’ strip formed part of the plaintiff’s

purchase under Ex.A5, and accordingly decreed the suit in favour of the

plaintiff by granting a declaration, a decree of permanent injunction, and

a mandatory injunction directing removal of the constructions/

encroachment.

11. On appeal, the First Appellate Court reversed the judgment of

the Trial Court. Relying on the recital ‘common lane’ in Ex.A5, it held

that the 2’ passage constituted a common lane available to the plaintiff

and two other owners on the western side, but not to the defendant. On

that reasoning, it declined to grant a declaration in favour of the plaintiff

and consequently refused both the declaration and the relief of

mandatory injunction.

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12. Upon consideration of the rival pleadings and the evidence on

record, this Court is of the view that the approach adopted by the First

Appellate Court is legally unsustainable for the following reasons:

(i) Nature of the 2’ passage – The description in Ex.A5 shows

that the plaintiff purchased property measuring 47’ x 35’ with a building

thereon. The construction of his house admittedly extends only to 33’

North–South axis, leaving the 2’ strip. Thus the total extent of 35’

claimed under Ex.A5 necessarily includes the said 2’ lane. The recital of

‘common lane’ therein indicates that the passage was to be enjoyed

commonly by the plaintiff and two others situated on the western side. At

no stage has the defendant established any right over this passage. The

First Appellate Court therefore erred in denying a declaration in favour

of the plaintiff.

(ii) Effect of Commissioner’s reports – The Advocate

Commissioner inspected the suit property on three occasions, namely,

04.12.2009, 19.12.2009, and 06.02.2010, and filed reports. It is evident

that subsequent to the institution of the suit, and even after the

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appointment and first visit of the Commissioner, the defendant proceeded

with further constructions. He raised a compound wall on the western

side of the passage, projected sunshades into the lane, laid pipelines for

discharge of drainage water, and otherwise encroached upon the common

lane. These acts were recorded by the Commissioner as subsequent

developments. The conduct of the defendant in carrying on construction

despite caveat, police complaints, and the pendency of the suit is

squarely hit by the doctrine of lis pendens under Section 52 of the

Transfer of Property Act, 1882.

(iii) Plea of acquiescence – The First Appellate Court erred in

invoking the principle of acquiescence. From the very inception, the

plaintiff consistently opposed any construction in the passage by lodging

police complaints, raising objections during the Commissioner’s

inspection, and resisting the same before the Court. In these

circumstances, the doctrine of acquiescence is wholly inapplicable.

The observation of the First Appellate Court that the relief sought

by the plaintiff is barred under Section 41(g) of the Specific Relief Act,

1963, on the ground of acquiescence, is wholly untenable. The evidence

on record clearly establishes that the plaintiff, far from remaining

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passive, had opposed the defendant’s unlawful acts from the very

inception. Immediately upon commencement of construction, the

plaintiff lodged a complaint before the North Dindigul Town Police and

obtained CSR receipt Ex.A11, which serves as contemporaneous proof of

his objection. Anticipating further legal proceedings, the defendant

himself filed a caveat under Ex.A13, thereby admitting his knowledge of

the plaintiff’s resistance. The plaintiff thereafter instituted the present

suit without delay, and even after the appointment of an Advocate

Commissioner and his first inspection, the defendant, in defiance of

judicial process, persisted with the construction despite the plaintiff’s

protests. The plaintiff’s conduct thus demonstrates continuous and

consistent opposition at every stage, leaving no scope for waiver,

consent, or “sitting by,” which alone would constitute acquiescence

within the meaning of Section 41(g).

A mere delay in asserting rights does not, by itself, constitute

acquiescence. Furthermore, when the plaintiff has consistently registered

protest, the restriction under Section 41(g) is inapplicable. In light of

these principles, the finding of acquiescence by the first appellate court is

untenable, and the plaintiff remains entitled to the equitable relief sought.

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(iv) Irreparable injury – The constructions carried out by the

defendant in the common lane are not structurally integral to the main

building. They consist of independent additions such as sunshades, a

western boundary wall, and pipelines. The removal of these structures

would not result in any irreparable harm to the defendant. However,

allowing them to remain would permanently obstruct the plaintiff and

other co-owners from accessing and fully enjoying the use of the

common lane.

(v) Equitable considerations – A party who knowingly

undertakes construction on another’s property during the pendency of

legal proceedings cannot invoke the equitable jurisdiction of the court.

The defendant’s actions were high-handed and deliberate, and he cannot

be allowed to retain the benefits derived from his wrongful conduct.

Accordingly, the substantial questions of law framed in this second

appeal are answered in favour of the appellant.

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13. For all the reasons stated above, this Court holds:

a) The plaintiff is hereby declared to be the owner of the suit

schedule property and also one of the co-owners, along with the other

entitled parties, of the common lane measuring 47 feet × 2 feet situated

on the northern side of his property.

b) The finding of the first appellate court denying declaration is set

aside and the declaration granted by the trial court is modified as above.

c) The judgment of the trial court decreeing permanent injunction

and mandatory injunction is restored.

d) The defendant is restrained from interfering with the plaintiff’s

use and enjoyment of the common lane by putting up construction or

otherwise.

e) The defendant shall remove the constructions put up in the

common lane, as identified in Ex. A12 in red colour, together with all

other constructions made by the defendant in the said common lane,

which have been recorded by the Advocate Commissioner in his report.

(Commissioner’s Report marked as C.W.2), within a period of three

months from the date of this judgment.

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14. In the result the Second Appeal is allowed. The judgment and

decree of the first appellate court are set aside. The decree of the trial

court is modified to the limited extent that the plaintiff is declared as

co-owner of the common lane measuring 47’ x 2’. All other reliefs of

injunctions permanent and mandatory stand restored. No costs.

Consequently, connected Miscellaneous Petitions are closed.

26.09.2025

NCC : Yes / No Internet : Yes / No Index : Yes / No LS

1.The Principal Sub Judge, Dindugal.