Madras High Court
A.Rajamanickam vs A.Britto on 12 July, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.07.2017 Date of Reserving the Order Date of Pronouncing the Order 07.07.2017 12.07.2017 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN C.R.P.(NPD) (MD) No.164 of 2006 and C.M.P.(MD) No.1528 of 2006 A.Rajamanickam ... Petitioner -vs- A.Britto ... Respondent PRAYER: Civil Revision Petition is filed, under Section 115 of the Code of Civil Procedure Code, to set aside the order and decree, dated 03.10.2005 and made in E.A.No.58 of 2005 in O.S.No.166 of 2004, on the file of the District Munsif Court, Devakottai. !For Petitioner : Mr.S.Srinivasa Raghavan ^For Respondent : Mr.M.Ashok Kumar :ORDER
Challenge in this civil revision petition is made to the fair and decreetal order, dated 03.10.2005, passed in E.A.No.58 of 2005 in O.S.No.166 of 2004, on the file of the District Munsif Court, Devakottai.
2. The suit in O.S.No.166 of 2004 has been laid by the revision petitioner for permanent injunction in respect of the suit property described in the plaint. It is found that the petitioner had been granted a decree in respect of the suit property on 21.02.2005.
3. Pursuant to the same, according to the petitioner / plaintiff, inasmuch as the respondent / defendant had wilfully disobeyed the order of permanent injunction passed in the suit and thereby committed contempt, he is liable to be punished and hence, the petitioner laid an application in E.A.No.58 of 2005, under Order XXI Rule 32 C.P.C. The said application was hotly resisted by the respondent / defendant by filing a counter. It is also found that in support of the petitioner's case, he has examined himself as P.W.1 and marked Exs.P1 to P5 and on the other side of the respondent, no oral evidence has been tendered and Exs.R1 and R2 have been marked. Further, Exs.C1 and C2 have also been marked. The Court below, on a consideration of the oral and documentary evidence adduced by the respective parties, dismissed the application laid by the petitioner. Challenging the same, the present civil revision petition has been preferred.
4. As seen from the Judgment and Decree of the Lower Court passed in the main suit and also the contentions of the respective parties, it is found that the petitioner has been granted the relief of permanent injunction only in respect of the property situated in Survey No.74/11. Even as per the case of the petitioner, the property belonging to the respondent is situated in Survey No.74/10 and Survey No.74/10 is situated to the west of his property in Survey No.74/11. Now, complaining that the respondent / defendant in wilful disobedience of the decree passed in the suit had put up staircase in the property of the petitioner / plaintiff and thereby prevented him from draining water from the roof tiles, according to the petitioner / plaintiff, the respondent / defendant had committed wilful disobedience of the order passed by the Court below and hence, liable to be punished.
5. However, considering the materials placed before the Court below, it is found that it has been clearly admitted by the petitioner during the course of his evidence that only in respect of the Survey No.74/11, he has instituted the suit and he has not claimed any relief as such in respect of Survey No.74/10, which property has been admitted to be the property belonging to the respondent / defendant. It is, therefore, found that the petitioner as such has not claimed any relief in respect of Survey No.74/10. When, Survey No.74/10 is admitted to be the property belonging to the respondent / defendant and when the decree passed in O.S.No.166 of 2004 pertains to Survey No.74/11, it does not reason as to how the petitioner is complaining that the respondent / defendant has wilfully disobeyed the order of the Court below and thereby violated the injunction order passed in the main suit. On a perusal of the Commissioner's Report and Plain in toto coupled with the decree passed in the main suit would go to show that ?GH? is the wall situated on the western side of the property belonging to the petitioner and to the west of the said wall, it is found that Survey No.74/10 emanates and in such view of the matter, when the petitioner is not entitled to any space to the west of ?GH? Wall and when even according to the petitioner's case, the respondent / defendant has put up a staircase only in Survey No.74/10, shown as ?ABCD? in the Commissioner's Plan marked as Ex.C2 and when it is also admitted by the revision petitioner that he has not sought for any easementary right to drain the roof water into the space on the western side of ?GH? wall and the space situated to the western side of ?GH? wall is admitted to be the property of the respondent / defendant comprised in Survey No.74/10 as rightly found by the Court below, the case of the revision petitioner that the respondent / defendant had put up the staircase in wilful disobedience to the injunction order passed in the main suit as such cannot be accepted in any manner. The petitioner has clearly admitted in his evidence that he has not sought for any easementary right as against the respondent / defendant to drain his roof water into the portion situated to the west of ?GH? wall. When it has not been established that the respondent / defendant had put up staircase in the property of the petitioner and on the other hand when the materials placed before the Court would go to show that the respondent / defendant had put up the staircase in a slanting manner and also left a space between the ?GH? wall and his staircase, as has also been admitted by the petitioner, it is found that as rightly found by the Court below the case of the petitioner that the respondent / defendant has encroached into his property and put up a staircase as such cannot be accepted in any manner.
6. The position being as above, it is found that the Court below on a consideration of the materials placed has rightly held that the respondent / defendant has not committed any wilful disobedience of the injunction order passed by the Court in the main suit and therefore, the claim of the revision petitioner that the respondent / defendant should be punished as such is unacceptable and rightly dismissed the application preferred by the revision petitioner in E.A.No.58 of 2005.
7. In view of the aforesaid reasons, the impugned order does not call for any interference from this Court in any manner. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
To:
The District Munsif, Devakottai.
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