Madras High Court
Ramanathan vs Vallabhai on 22 January, 2007
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/01/2007 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Second Appeal No.990 of 1996 Second Appeal No.991 of 1996 and Cross-Objection No.65 of 1999 1.Ramanathan 2. Vimala Senthil 3. Murugan 4. Damodaran ... Appellants in both the Second Appeals Vs Vallabhai ... Respondent in both the Second Appeals Second Appeals against the judgment and decree passed by the Subordinate Judge, Sivaganga made in A.S.Nos.103 of 1990 and 102 of 1990 dated 23/12/1993 modifying the decree and judgment of the District Munsif, Sivaganga made in O.S.Nos.435 of 1983 and 342 of 1987 dated 23/8/1990. Cross Objection No.65 of 1999 Dr.Vallabai ... Cross-objector Vs 1. Ramanathan 2. Vimala Senthil 3. Murugan 4. Damodaran ... Respondents Cross-objection filed under Order 41 Rule 22 of the Civil Procedure Code for the relief as stated therein. !For appellants ... Mr.R.Suriya Narayanan for Mr.R.Srinivasan in Second Appeal Nos.990 and 991 of 1996 and respondents in Cross- Objection No.65/1999 ^For respondent ... Mr.S.Natarajan in both the Second Appeals and for Cross-objector in 65 of 1999 :COMMON JUDGMENT
The appellants have challenged the judgment and decree passed in Appeal Suit Nos.103 of 1990 and 102 of 1990 by the Sub-Court, Sivagangai, wherein the judgment and decree passed in Original Suit No.435 of 1983 by the trial Court are confirmed and the judgment and decree passed in Original Suit No.342 of 1987 by the trial Court are modified. The cross-appellant has challenged the judgment and decree passed in Appeal Suit No.102 of 1990 in respect of disallowed portion.
2. The appellants herein as plaintiffs have instituted the suit in Original Suit No.435 of 1983 for the reliefs of declaration and permanent injunction on the file of the District Munsif Court, Sivagangai, wherein the present respondent has been shown as the sole defendant. The respondent herein as plaintiff has instituted the suit in Original Suit No.342 of 1987 on the file of the said Court for the reliefs of declaration and mandatory injunction, wherein the appellants herein have been shown as the defendants. The trial Court has conducted a joint trial in Original Suit Nos.435 of 1983 and 342 of 1987. After evaluating both the oral and documentary evidence has dismissed the suit filed in Original Suit No.435 of 1983 and decreed the suit as prayed for filed in Original Suit No.342 of 1987. Against the common judgment passed by the trial Court, the plaintiffs found in Original Suit No.435 of 1983 as appellants have preferred Appeal Suit No.103 of 1990 and the defendants found in Original Suit No.342 of 1987 have preferred Appeal Suit No.102 of 1990 on the file of the Sub-Court, Sivagangai. The First Appellate Court, after reappraising the evidence available on record has dismissed the Appeal Suit No.103 of 1990 whereunder the judgment and decree passed in Original Suit No. 435 of 1983 are confirmed and also allowed Appeal Suit No.102 of 1990 in part, whereunder the judgment and decree passed in Original Suit No.342 of 1987 are modified. Against the judgment and decree passed by The First Appellate Court, the present appeals have been filed at the instance of the plaintiffs found in Original Suit No.435 of 1983 as well as the defendants found in Original Suit No.342 of 1987.
3. The material averments made in the plaint filed in Original Suit No.435 of 1983 may be stated like thus:-
The house of the plaintiffs has been shown as ABCD in the plaint plan. The suit property has been described as FADE. The house of the plaintiffs is originally belonged to one Kaliammai. After her demise, the same has been enjoyed by one Vellaisamy Servai and his children. The wife of the first plaintiff by name Shanmugavalli has purchased the same under a registered sale deed dated 18/4/1981. The said Shanmugavalli has passed away on 12/10/1982 and the plaintiffs have succeeded the property covered under the sale deed. On the southern portion of the suit property, the house of the plaintiffs is situate. The defendant has no manner of right, title and interest over the suit property and now, he is making arrangements to put up a wall over the suit property. Under the said circumstances, the plaintiffs have filed the present suit for the reliefs indicated above.
4. The material averments made in the written statement filed by the defendant are summarised as follows:-
It is false to say that the suit property is in possession and enjoyment of the plaintiffs. The suit property and its adjoining northern and western properties are originally belonged to one vellaisamy Servai and his heirs have sold the same in favour of one Ramasamy Asari under the registered sale deed dated 19/3/1945. The said Ramasamy Asari has sold the same in favour of one Kottai under a registered sale deed dated 15/3/1972 and subsequently, he sold the same in favour of one Visalakshiachi under a registered sale deed dated 16/11/1972. The defendant has purchased the same under a registered sale deed dated 9/3/1983. Therefore, the suit property is the absolute property of the defendant. The plaintiffs are not having any right over the same. The plaintiffs are not entitled to get the reliefs sought for in the plaint and altogether, the present suit deserves dismissal.
5. The material averments made in the additional written statement filed by the defendant are summarised as follows:-
The plaintiffs are not having any right over the suit property and therefore, the suit is liable to be dismissed.
6. The material averments made in the plaint filed in Original Suit No.342 of 1987 are summarised as follows:-
The suit property and its adjoining southern property have been shown as ABCD in the plaint plan. The property purchased by the plaintiff has been shown as AEFG in the plaint plan. The property which has been described as ABCD is originally belonged to one Vellaisamy Asari and his wife Ponnatha and they sold the same in favour of one Ramasamy under a registered sale deed dated 19/3/1945. The said Ramasamy has sold the property purchased by him to one Kottai under a registered sale deed dated 15/3/1972 and he sold the same in favour of one Visalakshiachi under a registered sale deed dated 15/3/1972. The plaintiff has purchased the suit property and its adjoining northern property under a registered sale deed dated 9/3/1983. During the month of October 1983, the defendants have extended the northern roof of their house by way of encroaching a portion of the suit property. The defendants are not having right over the suit property. Under the said circumstances, the plaintiff has filed the present suit for the reliefs indicated above.
7. The material averments made in the written statement filed by the defendants are summarised as follows:-
It is false to say that the suit property is the property of the plaintiff. It is also equally false to say that the defendants have encroached a portion of the suit property. The defendants are entitled to get 25 feet on the north south. The defendants have filed the suit in Original Suit No.435 of 1983 against the plaintiff and the present suit is nothing but a counter blast to the suit mentioned above. The plaintiff is not entitled to get the reliefs sought for in the plaint and altogether, the present suit deserves to be dismissed.
8. On the basis of the rival pleadings of the parties, the trial Court has framed necessary issues and after appraising both the oral and documentary evidence has passed the judgment and decree as noted down earlier and the First Appellate Court has also after reappraising the evidence available on record has passed the judgment as stated supra.
9. At the time of admission of the present Second Appeals, the following substantial question of law has been formulated.
"Whether the lower Appellate Court was correct in stating that the suit property in O.S.No.342 of 1987 is a part of the suit property in O.S.No.435 of 1983 and therefore, the plaintiff in O.S.No.342 of 1987 is entitled t get declaration of title?"
10. The learned counsel appearing for the appellants has contended with great vehemence that the predecessor in title of the plaintiffs has purchased the suit property and its adjoining southern property and the same measures 25 feet on the north south and therefore, the suit property comes within the limit of the plaintiff. But both the trial Court as well as the First Appellate Court have erroneously dismissed the suit filed by the plaintiffs in Original Suit No.435 of 1983 and therefore, the concurrent findings given by the Courts below are liable to be set aside and the plaintiffs are entitled to get the reliefs sought for in the plaint filed in Original Suit No.435 of 1983.
11. Per contra, the learned counsel appearing for the respondent in both the appeals has also equally contended that the suit property and its adjoining northern property are originally belonged to the ancestor of the defendant and they sold the same to one Ramasamy Asari and subsequently, he sold the same to one Kottai and the said Kottai has sold the same to one Visalakshi Achi, from whom the defendant has purchased the suit property and its adjoining northern property by virtue of the sale deed dated 9/3/1983. In all the sale deeds, it has been mentioned that north south measurement is 18 feet and it covers the suit property and therefore, the defendant is having title to the same and the Courts below have rightly negatived the claim of the plaintiffs and the trial Court has rightly granted the relief sought for in Original Suit No.342 of 1987. But the First Appellate Court has erroneously dismissed the relief of mandatory injunction mainly on the ground of limitation and therefore there is no attractive ground to make interference with the judgment and decree passed in Original Suit No.435 of 1983.
12. On the basis of the rival submissions made by either counsel, the Court has to look into whether the plaintiffs found in Original Suit No.435 of 1983 are having title to the suit property or the plaintiff found in Original Suit No.342 of 1987 is having title to the same?
13. At this juncture, it would be apropos to look into the juxta- position of the suit property and its adjoining properties with the assistance of Ex.C.4, the plan filed by the Advocate Commissioner. In Ex.C.4, the property of the plaintiff has been shown as ADC.1 and B.1. The suit property has been shown as FEDA. It situates immediately on the northern side of the property of the plaintiffs. The property of the defendant is situate immediately on the northern side of the suit property. The plaintiffs have claimed right to the suit property by virtue of Exs.A.2 to A.4. Ex.A.2 is a sale certificate issued in Original Suit No.126 of 1937, wherein, the north south measurement of the property of the plaintiffs is mentioned as 25 feet. Ex.A.3 is a sale deed dated 28/8/1974 by one Kaliammal in favour of Ramaiyaservai wherein also, the same north south measurement is found place. Ex.A.4 is a sale deed dated 18/4/1981 executed by one Vellaisamy servai and others in favour of Shanmugavalli, wherein also the very same north south measurement has been given. Only on the basis of north south measurement given in Exs.A.2 to A.4, the plaintiffs have claimed title to the suit property.
14. The defendant has claimed title to the suit property by virtue of Exs.B.1, B.3, B.6 and B.7 and in all the documents referred to supra, the north south measurement is given as 18 feet. At this juncture, the Court must find out whether the suit property comes within the limit of the defendant or within the limit of the plaintiffs. In Exs.A.2 to A.4, the names of predecessors in title of the defendant are found place and especially, in Ex.A.2, it has been clearly mentioned that the house purchased by Vellaisamy Saervai is situate immediately on the northern side of the property covered under Ex.A.2. Therefore, it is very clear that on the immediate northern side of the property, mentioned in Exs.A.2 to A.4, the house of the predecessor in title of the defendant is situate.
15. At this juncture, the Court must look into Ex.C.1, the Commissioner's report, wherein it has been clearly stated that immediately on the northern side of GH points, the traces of old house are found place. Therefore, it goes without saying that the house of the predecessor in title of the defendant situated immediately on the northern side of GH points. It has already been stated in detail that as per Exs.B.1 to B.7, the defendant is entitled to get 18 feet on the north south. In Ex.C.4, the north south measurement of the property of the defendant including the suit property has been given as 17.6 inch. Therefore, the suit property is the absolute property of the defendant. Simply because in Exs.A.2 to A.4, the north south measurement has been given as 25 feet, the plaintiff cannot claim any right over the suit property, since the house of the predecessor in title of the defendant situated immediately on the northern side of the property covered under Exs.A.2 to A.4. Therefore, the plaintiffs found in Original Suit No.435 of 1983 are not entitled to get the reliefs sought for in the plaint.
16. Both the Courts have rightly found that the plaintiffs are not having any right over the suit property. In view of the discussion made earlier, it is very clear that the concurrent findings given by the Courts below with regard to the reliefs sought for in Original Suit No.435 of 1983 are perfectly correct and the same need not be interfered with.
17. The learned counsel appearing for the respondent/cross-objector has also contended that the plaintiffs found in Original Suit No.435 of 1983 have encroached a portion of the suit property and extended roof of their house towards northern side and for the removal of the same, the defendant therein as plaintiff has instituted the Original Suit No.342 of 1987. The trial Court has granted the relief of mandatory injunction. But the First Appellate Court has negatived the same on the ground of limitation and since the plaintiffs are committing continuous wrong, the period of limitation doesn't arise and therefore, the finding of the First Appellate Court with regard to mandatory injunction is liable to be set aside.
18. In support of his contention, he has made reliance upon the decision reported in AIR 1980 ALLAHABAD - 115 (RAJA RAM AND OTHERS Vs. BAHADUR AND OTHERS), wherein it has been held as follows:-
"Suit for mandatory injunction for closing doors, ventilators and windows opened by defendants in their houses is not barred under Article 113 of the Limitation Act since the same amounts to continuous wrong."
19. Admittedly against the finding with regard to the mandatory injunction given by the First Appellate Court, Cross-objection has been filed by the plaintiff found in Original Suit No.342 of 1987.
20. At this juncture, the Court has to make reliance upon the decision reported in AIR 1994 DELHI - 161 (FAQIR CHAND (THROUGH L.Rs.0 VS. LILA RAM (THROUGH L.Rs), wherein it has been held that "Construction of tin-shed in common passage complete ouster of right of common use. Injury was complete, when tin shed was constructed. Limitation of three years under Article 113 will apply for filing suit for seeking mandatory injunction."
21. The learned Judge has relied upon the decision reported in AIR 1940 LAHORE - 359 Full Bench (KHAIR MOHD.KHAN Vs. MT.JANNAT), wherein it has been held as follows:-
"A perpetual injunction was sought requiring the defendant to demolish a chabutra (platform) constructed on a portion of a courtyard which obstructed the passage of carts and other vehicles from the outer thoroughfare into the courtyard and the plaintiff complained that it caused a lot of inconvenience to them and other persons living in the mohalla. The question which arose for decision was whether it was a continuing wrong so as to give cause of action de die in diem as per Section 23 of the Limitation Act or it was covered by Article 120 of the Limitation Act. Six years period was prescribed under Article 120 of the Old Limitation Act which has been curtailed to three years by similar Article 113 of the New Limitation Act. Where the injury complained of is complete on a certain date there is no continuing wrong even though the damage caused by the injury might continue. In such a case, the cause of action to the person injured arises once for all at the time when the injury is inflicted and the fact that the effects of the injury are felt by aggrieved person on subsequent occasions intermittently or even continuously does not make the injury a continuing wrong so as to give him a fresh cause of action on each such occasion."
22. Therefore, from the close reading of the decisions referred to supra, it is made clear that if the injury complained of is complete, there is no continuing wrong even though the damage caused by the injury might continue. In such a case, the cause of action to the person injured arises once for all at the time when the injury is inflicted.
23. With these legal backdrops, the Court has to analyse the argument advanced by the learned counsel appearing for the respondent. In the plaint filed in Original Suit No.342 of 1987, at para 8, it has been clearly mentioned that during the month of October 1983, the defendants found therein have extended the use of their house towards the suit property. Therefore, the injury complained of has become complete on the date given in the plaint itself. The Original Suit No.342 of 1987 has been filed on 16/8/1987. The facts of the present case are in pari materia with the facts of the case decided by the Lahore High Court. Therefore, it is very clear that the relief of mandatory injunction sought for in Original Suit No. 342 of 1987 is clearly barred by limitation. The First Appellate Court has confirmed the relief of declaration granted in Original Suit No.342 of 1987 and dismissed the relief of mandatory injunction by invoking the provision of Article 113 of The Limitation Act. In view of the foregoing narration of both factual and legal premise, this Court has not found any valid ground to take deviation from the finding arrived at by the First Appellate Court with regard to the relief of mandatory injunction. Therefore, the argument advanced by the learned counsel appearing for the respondent/cross objector is sans merit.
24. It has already been discussed in detail that the findings of the Courts below with regard to the reliefs sought for in Original Suit No. 435 of 1983 are perfectly correct and the same need not be interfered with and therefore, both the appeals deserve dismissal.
25. In fine, these appeals and Cross-objection fail and are dismissed without costs. The judgment and decree passed in Appeal Suit Nos.103 of 1990 and 102 of 1990 by the Sub-Court, Sivagangai are confirmed.
mvs.
To
1. The Subordinate Judge, Sivaganga
2. The District Munsif, Sivaganga