Madras High Court
Mrs.Suvabai vs Bhaskara Reddiar on 15 February, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 15.02.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.376 of 2006 1.Mrs.Suvabai 2.S.Bhawarlal 3.S.Sampathraj ... Appellants vs. Bhaskara Reddiar ... Respondent Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 28.06.2005, passed by the Additional Subordinate Judge, Chinglepet, in A.S. No.88 of 2004, arising out of the judgment and decree, dated 01.10.2004, passed in O.S.No.427 of 1996, by the District Munsif-cum-Judicial Magistrate, Thirukazhikundram. For Appellants : Mr.R.subramanian for M/s.P.Veeraraghavan For Respondent : Mr.V.Raghavachari J U D G M E N T
The appellants herein filed a suit as plaintiffs in O.S. No.427 of 1996 on the file of the District Munsif-cum-Judicial Magistrate, Thirukazhikundram, seeking a prayer---
a) for declaration of the plaintiffs' exclusive right to use the ABCD passage absolutely for the plaintiffs convenient use and enjoyment of their house property lying north of it;
b) for permanent injunction against the defendant restraining him and his men or agents from in any way interfering with the plaintiffs' user and enjoyment of the said ABCD passage through the doorway opened by the defendant;
c) for a declaration that any recital in the sale deed of the defendant dated 27.02.1986, about the passage right in the ABCD portion is invalid and not binding on the plaintiffs
d) for a mandatory injunction directing the defendant to remove his tap connection extended through the ABCD passage abutting the BC wall and also the sunshade put up over the window as well as the closing of the doorway at point "E" within the time.
2. The averments made in the plaint, in brief, are recapitulated below for better appreciation.
The first plaintiff is the wife of Late Suganraj Sowcar, and the plaintiffs 2 and 3 are the sons of Suganraj Sowcar born to the first plaintiff. Suganraj Sowcar, by a sale deed dated 05.10.1957, had purchased a shop bearing Door No.2 and the residential portion bearing Door No.3, with the half share right and title in the said ABCD passage from one Veeraraghava Chettiar, starting from Mettu Street. By another sale deed dated 22.01.1959-Ex.A4, a vacant site belonging to Kutti Bai and Chandra Bai measuring 26' from North to South and 21' from East to West at the northern side and 17 <' of Southern side, was purchased from Chandra Bai and others. In the said sale deed, dated 22.01.1959, the Vendors have clearly mentioned that their < share right and title in the ABCD have been sold to Suganraj. In view of that, Kutti Bai and Chandra Bai have equally got quarter share in the ABCD passage for their two tiled house property bearing Door Nos.37 and 38, South Mada Street, Thirukalikundram. Thereafter, on 10.02.1975, the second plaintiff has purchased the northern tiled house with backyard upto dry latrine at the east from the Chandra Bai and others for Rs.11,022/-, under a registered sale deed with 1/8th share right, title in the ABCD portion. The heirs of Kutti Bai have sold the southern side tiled house in South Mada Street, Thirukalikundram to one C.Subramania Chettiar of Chengalpattu. The second plaintiff, on 06.04.1981, under a registered sale deed from C.Subramania Chettiar and others, has purchased the same for Rs.26,000/-, inclusive of 1/8th share right and title in the ABCD passage. Thus, the plaintiffs have become the absolute owner of the ABCD passage. After the life time of Suganraj Sowcar, the plaintiffs, who are the heirs as well as the purchasers under different sale deed, are enjoying the ABCD passage. Since the plaintiffs have been enjoying the ABCD passage more than 35 years, nobody has got any right over the same, except the plaintiffs.
3. It is seen further in the claim statement that, in the northern wall, there is a door opening to enable the scavenger to come through the ABCD passage and to clean the septic tank latrines of the plaintiffs located in Door No.3 of Mettu Street. Whileso, the defendant, during the plaintiffs' absence, extended the tap connection lying in the front side of his shop through the passage by placing 'U' shaped angles and also opened a door in the middle of the passage and also a window on his wall. Apart from that, the defendant has put up sunshade over the window to the north of the said wall. In view of this act of the defendant, the plaintiffs have filed a suit in O.S.No.427 of 1996, before the District Munsif-cum-Judicial Magistrate, Thirukazhikundram, with the aforesaid prayer.
4. The defendant, by filing a written statement, contended that the defendant has purchased 0.02 5/8 cent with 19 <' North-South on the East, 18 =' East-West on the West, along with 67 years old Mangalore tiled shop bearing old door Nos.92 and 93 of Mettu Street, and with a half share in the common NARASAM, under the registered sale deed dated 27.02.1986, for a sum of Rs.45,000/-. Prior to the purchase, the defendant has been running Lathe and Welding business in the said premises, right from 1976, which is well known to the nearby residents, including the plaintiffs. It is seen further that the defendant and his predecessors' continue to be in enjoyment of the common NARASAM. When the defendant fixed the door, sunshade and pipeline, there was no sort of objection from the plaintiffs . The doors fixed in common NARASAM can be locked with key and both the plaintiffs as well as defendant were having keys for the locks. The report and plan filed by the Advocate Commissioner in O.S.No.279/96 would establish the enjoyment of the suit NARASAM by the defendant.
5. The learned District Munsif, Thirukazhikundram, after considering the case of both sides, has decreed only with regard to permanent injunction and declaration, but refused to grant the prayer in respect of mandatory injunction on the ground that the said obstruction would not cause any hindrance, hardship or inconvenience to the plaintiffs. Aggrieved by the said order, both the plaintiffs as well as the defendant have filed their appeals before the first appellate Court. As against the non-grant of mandatory injunction to remove the sunshade, window and pipeline, plaintiffs/appellants herein filed first appeal and the defendant/respondent herein aggireved by the decree against the declaration and permanent injunction filed appeal. But, the first appellate Court, after considering the claim of both sides, dismissed both the appeals filed by them, confirming the trial Court judgment. As against the firs appellate Court judgment, the plaintiffs/appellants herein have filed the present second appeal seeking for a mandatory injunction with regard to removal of pipeline, window, door and sunshade.
6. At the time of admission, the following substantial questions of law were framed for consideration:-
a) Whether the Courts below, having accepted the exclusive title and possession of the appellants/plaintiffs to the suit NARASAM, were right in law in declining to grant the relief of mandatory injunction as sought for by the appellants/plaintiffs?
b) Whether there was any evidence before the Court below in support of the findings that the plaintiffs/appellants did no raise any objection when the encroachments were made and that there was delay in seeking the relief of mandatory injunction?
c) In the absence of any evidence whether the findings of the Courts below that the existence of the three items of admitted encroachments made by the respondent/defendant, would not cause any injury or prejudice to the appellants/plaintiffs are sustainable in law?
7. Now, with reference to the above substantial questions of law, this Court has to consider as to whether the Judgments of the courts below suffer from any patent error or illegality, warranting interference.
8. Learned counsel for the appellants submitted that the property consisting of ABCD portion was purchased by the sale deed dated 05.10.1957, 22.01.1957, 10.02.1975 and 06.04.1981, which was marked as Exs.A2, A4, A5 and A6, respectively. The first appellate Court, having accepted the findings of the trial court that the suit NARASAM, exclusively belongs to the plaintiffs/appellants herein and that the Respondent has no manner of right, title and interest in the suit property, erroneously declined to grant the relief of mandatory injunction sought for, by the plaintiffs/appellants herein. When the case of the plaintiffs/appellants herein was accepted by the Courts below that they are the absolute owner of the ABCD passage of the suit property, by virtue of sale deed, dated 05.10.1957, 22.01.1957, 10.02.1975 and 06.04.1981, while granting declaration of plaintiffs exclusive right to use the ABCD passage, followed by grant of permanent injunction against the defendant and his men from in any way interfering with the plaintiffs' enjoyment of the said ABCD passage through the doorway, the non-grant of mandatory injunction to remove his tape connection, windows and door, is amounting to denial of first two prayers, as the plaintiffs may not be in a position to effectively use the relief of declaration and permanent injunction.
9. In support of his submission, he has also relied upon a judgment of this Court in M.A.Raja v. Vedhantham Pillai (2000 (II) CTC 199) for a proposition that, if the obstruction continues, that will be violation of decree for permanent injunction also. Therefore, it was contended that the plaintiffs are well within the right to approach this Court for grant of mandatory injunction for removal of the aforesaid fixtures.
10. He has also placed yet another judgment in Lakshmanan and Others v. G.Ayyasamy ((2011) 6 MLJ 544), on the point that the owner of the property is entitled to have his right exercised up to the sky and in such a case, aerial projection cannot be permitted. Therefore, when the plaintiffs are the owner of the property, it is not open to the Courts below to negative the prayer for mandatory injunction. On that basis, he prayed for issuing mandatory injunction.
11. On the other hand, learned counsel appearing for the respondent submitted that the defendant has been using the ABCD passage for quite a long time. Therefore, the judgment and decree passed by the Courts below refusing to grant mandatory injunction for removal of fixtures as stated above, which are fixed on the walls of the defendant, cannot be interfered with by this Court. Further, it was submitted that when there has been a finding in favour of the defendant that the defendant has been enjoying the easementary right in the disputed suit property for quiet a long time continuously, the second appeal filed as against the refusal of grant of mandatory injunction should be dismissed.
12. Heard the learned counsel appearing on either side and perused the materials available on record.
13. It is an admitted case that the plaintiffs/appellants herein, while laying their claim before the trial Court seeking for permanent injunction, declaration and mandatory injunction, including removal of pipe line, doors, sunshade, of course, that are fixed on the walls of defendant/respondent herein, the trial Court, upon considering the case of both sides, rightly accepted that the plaintiffs/appellants herein are the absolute owner of the suit property and also came to the conclusion that the ABCD passage belongs to the plaintiffs, on the basis of sale deed dated 05.10.1957, 22.01.1957, 10.02.1975 and 06.04.1981, which were marked as Exs.A2, A4, A5 and A6, respectively. Further, on the basis of the evidence produced by the defendant, both the Courts below have held that when the defendant in the year 1980, has mortgaged the property on 11.07.1980, to one Tharachand, they have not specifically mentioned anything about the right to enjoy or any right which they have enjoyed in the ABCD passage of the plaintiffs' property. Therefore, on that basis, the trial Court as well as the first appellate Court have correctly come to the conclusion that the plaintiffs/appellants herein are the absolute owner of the ABCD passage. If that be the case, both the Courts below, after granting the prayer for permanent injunction as well as for declaration, should not have refused to grant the mandatory injunction for removal of the above said fixtures . Therefore, as the Courts below refused to grant mandatory injunction, the same will be violation of a decree for permanent injunction.
14. In this context, it is useful to refer to a judgment of this Court in M.A.Raja's case (cited supra). In paragraphs 24 and 25 of the judgment, it is held thus, "24. What will be the effect if mandatory portion of decree cannot be executed. I have already said that decree for mandatory injuction is granted only consequent to the finding that plaintiff is entitled to permanent injunction. If obstruction continues, that will be violation of decree for permanent injunction also. Plaintiff will be entitled to have the same executed under Order 21, Rule 32 of CPC. In fact I find execution application itself is filed only under Order 21, Rule 32(5) of CPC.
25. In the decision reported in Ondipudur Weavers Co-op & S.Socy.Ltd.v. Velumani, 1977 (II) MLJ 19, a similar question came for consideration. In that case, a decree was granted declaring the right of plaintiffs to make use of the road and restraining defendant from interfering in the use of the road. Execution application was filed complaining that defendants have disobeyed the orders of this court and they have not removed the obstruction in the road. They wanted judgment debtor to be arrested for alleged disobedience. Executing Court without arresting Judgment Debtor, appointed a Commissioner for removal of obstruction to have access usable as directed by the decree. The same was challenged before this court and learned judge considered the scope of Order 21, Rule 32(5) in that case. In para 5 of the judgment, it is held thus, "5. In this case, there is a decree declaring the respondent's right to use the pathway and an injunction restraining the appellants from interfering with such right When the respondents decree holders found that the pathway is so covered with thorny bushes that the right of pathway declared in their favour could not be properly exercised, normally they are entitled to clear the thorny shrubs for facilitating their use of the pathway. But when it was found that the appellants, judgment -debtors, resisted that attempt of respondents , decree holders, in clearing the thorny shrubs found on the pathway, naturally they have to approach the executing court complaining that the judgment-debtors who have been restrained from interfering with the user of the pathway by the decree-holder are obstructing the clearance of the thorny shrubs and therefore they have virtually disobeyed the orders of preventive or prohibitory injunction. Order 21, Rule 32(5) of the code is not invoked by the decree-holders on the ground that the appellant adjudgment-debtors have not performed any positive act directed by the court but that they are preventing the clearance of the shrubs by the decree- holders for the proper use of the pathway Such interference with the clearance of the thorny shrubs will amount to an indirect attempt on the part of the judgment debtors to interfere with the plaintiffs user of the pathway. If, in fact, the judgment-debtors, have not obstructed or prevented the clearance of the shrubs by the decree-holders, they would not have approached the executing court for the appointment of a Commissioner to clear the thorny shrubs. I am not, therefore, inclined to agree with the learned counsel form the appellants that the application filed under Order21, Rule 32(1) and (5) by the respondents in this case is not maintainable."
15. As stated above, when the Courts below have held that the plaintiffs are entitled to the relief of declaration and permanent injunction, they are also well within their rights of mandatory injunction. Because, the refusal of mandatory injunction after granting declaration and permanent injunction to say the least, both the Courts below have overlooked the legal aspect that the first two prayers of the plaintiffs' exclusive right to use the ABCD passage and permanent injunction against the defendant from interfering with the plaintiffs' enjoyment of the said ABCD passage could not be executed. This relief of mandatory injunction is legally bound to be granted to the plaintiffs/appellants herein, on the principle that the owner of the property is entitled to have his right exercised up to the sky and in such a case, aerial projection cannot be permitted.
16. In the case of Lakshmanan and Others v. G.Ayyasamy ((2011) 6 MLJ 544), this Court has held thus;-
"A man is not liable for a trespass committed involuntarily, but he is liable if the entry is intentional, even though made under a mistake, e.g., if, in mowing in his own land, a man inadvertently allows his blade to cut through into his neighbour's field, he is guilty of a trespass. Notwithstanding the decision of Court of Appeal in Letang v. Cooper, approving Fowler v. Lanning, which lays down that intention is a necessary element to constitutes trespass to person, it is still the law that an entry upon another's land constitutes trespass to land whether or not the entrant knows that he is trespassing. If the defendant consciously enters upon a land believing it to be his own but which turns out to be of the plaintiff, he is liable for trespass. But a person is not liable if the entry is involuntary, e.g., when he is thrown upon the land by someone else. In such a situation, there is no act of entry at all by the defendant............
(3) Every interference with the land of another, e.g., throwing stones or materials over a neighbour's land, is deemed constructive entry and amounts to trespass. Deliberate placement of matter, e.g., jettisoning of oil, in such circumstances, as will carry it to the land of the plaintiff by natural forces, may constitute trespass. The matter may not be tangible; if may be gas or invisible fumes.
A trespass may be committed by driving a nail into a person's wall, or by placing anything against his wall, or by shooting over his land, or by placing anything above and overhanging his land, or by planting trees in his land, or placing any chattel upon his land, or causing any physical object or noxious substance to cross the boundary of his land. But trespass of the nature described above must be distinguished from private nuisance which resembles trespass. The distinction is important for trespass is actionable per se whereas nuisance is actionable only on proof of damage. The distinction lies in the nature of the injury whether it is direct or consequential. If the injury is direct, it is trespass; whereas, if the injury to the plaintiff is consequential it is a case of nuisance. If a person throws stones on the neighbour's land, it is trespass. If a person plants a tree on his land the roots of which after some years undermine the foundation of the neighbour's building, it is nuisance. Discharge of filthy water on plaintiff's land from a spout in defendant's house is trespass.
2(B) Aerial Trespass The owner of land is entitled to the column of air space above the surface ad infinitum. The ordinary rule of law is that whoever has got the site -- is the owner of everything up to the sky and down to the centre of the earth. An ordinary proprietor of land can cut and remove a wire placed at any height above his land. At least in modern times, this is an overstatement. The correct view is that the owner's right to air and space above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it. If the rule were as used to be stated earlier, it would lead to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburbun garden. If a man were to erect a building overhanging the land of another, he would commit trespass and an action would lie against him."
From the above decided case law, if the issue raised in the second appeal is viewed, the plaintiffs/appellants herein, who have succeeded in respect of two prayers before the Courts below for refusal of mandatory injunction alone, have filed appeal before the first appellate Court. But, after the dismissal of the defendant's appeal, the defendant has accepted the case of the plaintiffs. Under these circumstances, by applying the ratio laid down by this Court in Lakshmanan's case (cited supra) that the owner of the property is entitled to have his right exercised up to the sky and in such a case, aerial projection cannot be permitted, this Court, being satisfied that the Courts below have made grave error in not following the clear enunciation of law, is compelled to interfere with the findings of the Courts below.
17. In respect of the second and third substantial questions of law, when the plaintiffs have established their case that, only in the absence of the plaintiffs, the defendant has laid the pipeline, door and sunshade, it is not open to the Courts below to say that the plaintiffs did not raise any objection, when encroachment was made. Accordingly, second and third substantial questions of law are answered.
18. From the aforesaid observations, the defendant/respondent herein is directed to remove the sunshade, pipeline, as they are falling into the plaintiffs property. So far as the door is concerned, since the door way is kept to use the ABCD passage, the door fixed in the defendant's wall also should not be opened permanently, therefore, it is open to the defendant to replace the door by fixing permanent fixture on that.
19. In result, the Second Appeal is allowed in the above terms. No Costs.
rkm To
1. The Additional Subordinate Judge, Chengalpet
2. The District Munsif-cum-Judicial Magistrate, Thirukazhikundram