Madras High Court
Lourdusamy vs Subbulakshmi Ammal (Died) on 7 April, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
S.A.No.467 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 02.04.2025
Judgment Delivered on : 10.06.2025
Coram :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
S.A.No. 467 of 1999
and
C.M.P.No. 5671 of 1999
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Lourdusamy .. Appellant
Vs.
1. Subbulakshmi Ammal (died)
2. Mallika
3. Suga Priya Ravindran
4. Devasena
5. S.Karthik Ganesh
(Respondents 2 to 5 added as parties to the Second Appeal
and cause title amended, vide order dated 07.04.2022 made
in C.M.P.(MD).No.2294 of 2022 in S.A.No.467 of 1999)
.. Respondents
Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree dated 07.10.1998 in A.S.No.54 of 1996 on
the file of the Principal Subordinate Court, Tirunelveli, confirming the
judgment and decree dated 31.07.1995 in O.S.No.1248 of 1988 on the file
Page No.1/19
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S.A.No.467 of 1999
of the Additional District Munsif Court, Tirunelveli.
For appellant : Mr.D.Nallathambi
For respondents : Mr.R.T.Arivukumar for RR-2 to 5
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JUDGMENT
This Second Appeal is filed against the judgment and decree dated 07.10.1998 in A.S.No.54 of 1996 on the file of the Principal Subordinate Court, Tirunelveli, confirming the judgment and decree dated 31.07.1995 in O.S.No.1248 of 1988 on the file of the Additional District Munsif Court, Tirunelveli.
2.The Appellants herein is the defendant in O.S.No.1248 of 1988 on the file of the Additional District Munsif Court, Tirunelveli. Originally, the suit was filed by the plaintiffs seeking declaration, mandatory injunction and other reliefs.
3.For the sake of convenience, the parties are described as per their Page No.2/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 ranking in the Trial Court.
4. The brief case of the plaintiffs in O.S.No.1248 of 1988 is as follows:
The plaint second schedule property belongs to the plaintiffs viz., Subbulakshmi Ammal and Mallika and the defendant viz., Lourdusamy jointly. Originally, item Nos.1 and 2 of the first schedule properties and the second schedule property belonged to one Subbiah Asari. Then, the said property was exchanged through various hands, later, it came to the hands of one Gandhimathi Ammal and her son Muthukumar, who in turn executed a sale deed on 22.04.1981 in favour of the first plaintiff. In the said sale deed, the second item of the first schedule property was sold. The first plaintiff in turn, sold the same to the second plaintiff on 20.02.1982. Consequently, the first plaintiff became the owner of the first item and the second plaintiff became the owner of the second item of the first schedule properties. The second schedule property, there was a path-way, which was originally owned by one Muthiah Asari and subsequently, it came to the hands of one Varaprasatha Ammal, who is the predecessor-in-interest of the defendant. The defendant developed with an intention to grab the property Page No.3/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 shown as D.1, C.1, D and C and thereby, occupied the entire area which lies on the Southern side of the second schedule property. In fact, the property shown as D.1, C.1, C and D is also the common path-way being used by the plaintiffs and the defendant. The defendant took advantage of the absence of the plaintiffs for 3 days when they were on a pilgrimage to Tiruchendur and constructed a sump and a stair-case encroaching the second schedule property. Hence, the suit is filed by the plaintiffs for declaration that they are entitled to the lane mentioned in the suit second schedule property and also for mandatory injunction for demolition of the stair-case and sump put up by the defendant in the suit second schedule property.
5. The defendant has filed written statement stating as follows:
The suit is not maintainable. The plaintiffs had to prove the averments in the plaint. The rough sketch is misleading. The common pathway shown as A, B, C and D is not correct. In fact, the common pathway belongs to the plaintiffs and the defendant is only A, B, C1 and D1. The plaintiffs have no right over the property belonging to the Municipality and the Well situated therein. The Well was used by the defendant and the people living in Page No.4/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 Devakirupai Street. The defendant has never objected the right of the common pathway exercised by the plaintiffs. The construction was put up by the defendant only with the knowledge and consent of the plaintiffs and hence, the suit may be dismissed.
6. Based on the pleadings, the trial Court framed the following issues :
'' 1. Whether, the plaintiffs are entitled to get a relief of declaration and injunction in respect of plaint second schedule property ?
2. Whether the plaintiffs are entitled to get mandatory injunction in respect of plaint second schedule property ?
3. To what other reliefs the plaintiffs are entitled to ?''
7. After framing issues, during trial, on the side of the plaintiffs, four witnesses were examined as P.W.1 to P.W.4 and four documents were marked as Exs.A.1 to A4. On the side of the defendant, two witnesses were examined as D.W.1 and D.W.2 and eight documents were marked as Ex.B.1 Page No.5/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 to Ex.B8, besides, four documents were marked as Ex.C.1 to Ex.C.4.
8. The Trial Court, after framing issues and after hearing the submissions of the respective counsel, decreed the suit in favour of the plaintiffs as prayed for in the suit. Aggrieved by the judgment and decree passed by the trial Court, the defendant preferred an appeal in A.S.No.54 of 1996 before Principal Subordinate Judge, Tirunelveli. The lower appellate Court dismissed the appeal with a direction to the defendant to remove the construction put up in the plaint second schedule property in the portion in C, D, C1 and D1 in the plan appended to the decree of the trial Court, within one month from 07.10.1998 and as against the said judgment and decree of the first appellate Court, the defendant has filed the present Second Appeal.
9. This Second Appeal was admitted on 08.04.1999 on the following substantial questions of law:
(i) Whether the plaintiffs who are the co-owners of the second schedule property, are entitled to the relief of mandatory injunction, when they accused the construction made by the other co-owner ? and
(ii) Whether the Courts below have correctly Page No.6/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 exercised their discretion in the matter of granting mandatory injunction ?
10. Learned counsel for the defendant contended that the Courts below are wrong in finding that the plaintiffs are entitled to the whole of the plaint second schedule lane and the Courts below ought to have held that the plaintiffs are entitled to use the lane upto a lane of 33 feet 9 inches and not 60 feet and 6 inches. The length of the common lane is only 33 feet and 9 inches from Vinayagar Koil Street. The Courts below did not consider the fact that there is absolutely no necessity for the plaintiffs to use the rear portion of the plaint second schedule property. The trial Court held that the Well in the poramboke land is useless and that the plaintiffs need not go to the rear portion. In this connection, the trial Court found that the plaintiffs may have to go to the Street on the West of second schedule property, which is wrong, as the plaintiffs had not pleaded so. The Courts below should not have relied upon Exs.A-1, A-2 and A-4 documents, as they do not confer any right upon the plaintiffs, which is not helpful to the plaintiffs at all. The lane mentioned therein is for the use of vendee, who had purchased the property in the rear portion. The plaintiffs who have the property in the Page No.7/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 front portion of the plaint second schedule, cannot claim any right on the rear portion of the same.
11. Learned counsel for the defendant further contended that the Courts below failed to give due importance to the recitals of boundaries in the various exhibited documents and the Courts below failed to give any significance to the non-production of the earlier title deeds of the plaintiffs. The Courts below failed to consider the admission made by the witnesses on the side of the plaintiffs that the documents contain admittedly wrong recitals and the Courts below ought not to have relied upon the same. The Courts below should have considered the topographical feature of the suit properties and their surroundings before deciding upon the issues involved in the suit and the Courts below failed to apply the correct principles of law relating to the grant of mandatory injunction. The Courts below had rightly rejected the case of the plaintiffs that the defendant constructed the stair- case during their absence. The plaintiffs did not protest against the construction of the stair-case in the beginning. They are silent spectators. After construction was completed, the plaintiffs came to the Court and asked for mandatory injunction. The plaintiffs are guilty of laches and Page No.8/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 acquiescence and the Courts below ought to have rejected the prayer for mandatory injunction. The Courts below had not taken note of the fact that the plaintiffs came to Court after the defendant protested against their putting up a gate in the entrance of the second schedule property. The suit is mala-fide. The Courts below failed to notice the fact that the stair-case had been constructed even according to the plaintiffs in a portion of the common property and the general principle of law of injunction ought not to have been applied to the case on hand, as the different principle of law is applicable to this case. Further, the Courts below misdirected themselves with regard to the question of limitation. Thus, the learned counsel for the defendant prayed to set aside the judgment and decree of the first appellate Court.
12. In support of his contention, the learned counsel for the defendant would rely on the decisions of this Court in the cases of (i) S.Palanivelu Vs. K.Veradammal reported in 1978 (1) MLJ 212 and Kandasamy and others Vs. Savithri (died) and another reported in (2005) 3 M.L.J. 495.
13. Per contra, learned counsel for the plaintiffs contended that the Page No.9/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 second schedule suit property originally belongs to plaintiffs 1 and 2 and the defendant jointly. The first plaintiff is the owner of the first item and the second plaintiff is the owner of the second item of the first schedule property. The second schedule property, there is a common pathway, which was originally owned by one Muthiah Asari and subsequently, it came to the hands of one Varaprasatha Ammal, who is the predecessor in interest of the defendant. The defendant, in order to grab the property of the plaintiffs, thereby occupied the entire area of southern side of the second schedule property. The property shown as D.1, C.1, C, D is also the common pathway being used by plaintiffs 1 and 2 and the defendant. The defendant took advantage of absence of plaintiffs 1 and 2, encroached the common pathway and constructed a stair-case. Pending suit, an Advocate Commissioner was appointed and he filed the reports along with plans, which were marked as Exs.C.1 to C.4. The exhibits C.1 to C.4 clearly show that the defendant constructed the stair-case in the common area. Therefore, the defendant has no exclusive right over the suit second schedule property and he has no right to obstruct the lane by putting up any construction whatsoever. From Ex.A.3, it is an admitted fact that plaintiffs 1 and 2 are in possession on the eastern side of the defendant's property. Further, the Page No.10/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 defendant had filed a suit in O.S.No.702 of 1989 for bare injunction as against the plaintiffs describing A, B, C.1 and D.1 as the suit property. The said suit was tried along with the suit in O.S.No.1248 of 1988 and the trial Court decreed both the suits in favour of plaintiffs and the said judgment and decree was confirmed by the first appellate Court in A.S.Nos. 44 of 1996 and 54 of 1996. He further contended that both the Courts below after appreciating the entire oral and documentary evidence, especially, Exs.A.1, A.2 and A.4 and came to the conclusion that common pathway had a length of 22 carpenter cubic east to west into 1.3/4 carpenter cubic. Therefore, the subsequent modification in the deeds will not give a right to the defendant, in respect of the common pathway, which is second schedule of the suit property. Therefore, the defendant cannot restrain plaintiffs 1 and 2 from using the common pathway as shown in the documents standing in the name of his predecessors. Once, the parent title deeds show the right of the common pathway, subsequent deeds cannot take away the right of the other parties, in which, the plaintiffs 1 and 2 are not party to the documents. Therefore, there is no merit in the appeal and the same is liable to be dismissed.
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14. Heard the learned counsel on either side and perused the materials available on record.
15. On a reading of the entire pleadings, oral and documentary evidence, especially Ex.A.1 and A.2, it is seen that plaintiffs 1 and 2 are in possession of the eastern side of the defendant's property and the same is not disputed. Further, Ex.A.4 sale deed is of the year 1982, which clearly shows that suit second schedule property is the common pathway. Plaintiffs 1 and 2 have purchased the properties way back in the year 1982, whereas, the defendant purchased the property only in the year 1983 i.e., subsequent to Ex.A.1 and Ex.A.2. Therefore, a reading of Exs.A.1, A.2 and A.4, the second schedule properties are used as common pathway.
16. The main contention of the defendant is that as per Exs.B.1 and B. 2, the defendant had constructed a building within his property. The further contention of the defendant is that the construction of stair-case put up by the defendant was only with the knowledge and consent of plaintiffs 1 and
2. Even though, he had constructed the said stair-case on 15.09.1988 itself, the same was not objected by the plaintiffs 1 and 2 at that time. However, Page No.12/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 after completion of construction, with an ulterior motive, plaintiffs 1 and 2 filed the suit. Therefore, plaintiffs 1 and 2 are not entitled to get a decree of mandatory injunction on the ground of delay and laches. Further, the defendant also filed the suit in O.S.No.702 of 1989 against the plaintiffs 1 and 2 praying permanent injunction restraining plaintiffs 1 and 2 not to obstruct him from enjoying his pathway right over the property shown as A, B, C.1 and D.1 in Ex.A3 in O.S.No.1248 of 1988 and the same was decreed in his favour. Challenging the said judgment and decree in O.A.No.702 of 1989, plaintiffs 1 and 2 filed the appeal in A.S.No.44 of 1996. The said appeal suit in A.S.No.44 of 1996 was tried along with A.S.No.54 of 1996 and both the suits were dismissed by the first appellate Court by a common judgment dated 07.10.1998. Aggrieved by the said judgment and decree passed in A.S.No.44 of 1996, plaintiffs 1 and 2 have not filed any appeal, therefore, the entitlement of the defendant cannot be denied by the plaintiffs 1 and 2.
17. Admittedly, in the second schedule property, there is a common pathway, wherein the defendant had constructed the stair-case in a portion. Pending suit, an Advocate Commissioner was appointed and he has also Page No.13/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 filed a reports along with plans, which clearly show that the defendant constructed the stair-case in the common pathway. Therefore, the trial Court granted declaration and mandatory injunction and also granted two months time to remove the said encroachment. Though the defendant had denied the measurement, a reading of the pleadings and oral and documentary evidence, especially oral evidence of both the parties and also Exs.A.1, A.2, A.4, B.1 and B.2 would show that they are only factual findings.
18. Substantial question of law No.1 : Whether the plaintiffs who are the co-owners of the second schedule property, are entitled to the relief of mandatory injunction, when they accused the construction made by the other co-owner ?
Admittedly, as far as the second schedule property is concerned, both the defendant and plaintiffs 1 and 2 are co-owners. It is an admitted fact that in the said property there is a common pathway. One of the party should not encroach upon the common land / property and cause inconvenience to the other co-owners. Though it is settled proposition of law that injunction cannot be granted against the co-owners regarding jointly owned property, Page No.14/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 in essence, one co-owner cannot restrict another co-owner's right to use and enjoy the property, as such co-owner has an equal right to do so. However, for alienation or encroachment, if the Court finds that one of the co-owners making any encroachment or execution of hindrance or any alienation, mandatory injunction can be granted. In the case on hand, it is evident from the Commissioner's reports and plan and oral and documentary evidence of both the parties that the defendant made construction in the portion of the second schedule property, which causes inconvenience and hindrance to plaintiffs 1 and 2 to use the suit common pathway situated in second schedule of the suit property. It is contention of the defendant that the construction of stair-case will not cause any hindrance or disturbance to any one. Once, the second schedule property is declared as a common pathway, one of the co-owners has no exclusive right to enjoy and to encroach upon the common pathway. Accordingly, this substantial question of law is answered in favour of the plaintiffs 1 and 2.
19. Substantial question of law No.2 : Whether the Courts below have correctly exercised their discretion in the matter of granting mandatory injunction ?
Page No.15/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 The main contention raised by the defendant is that the said construction was made in the presence of plaintiffs 1 and 2 and at that time they have not raised any objection, subsequently, they cannot seek the relief of mandatory injunction on the ground of delay and laches. The trial Court as well as the first appellate Court has given a finding that objection was made within 15 days of the construction. The contention of the plaintiffs 1 and 2 is that when they went for pilgrimage trip for three days, the defendant started construction of stair-case. However, both the Courts below have stated that it is not possible for the defendant to construct the stair-case within three days, however, they found that plaintiffs 1 and 2 also aware of the construction. The suit is filed within 15 days i.e., from the date of construction of the said stair case, but however the defendant had completed the construction before the filing of the suit. The limitation for filing a suit for mandatory injunction is three years from the date of cause of action. However, once it is admitted that the suit second schedule property is the common pathway, the defendant has no authority to encroach any portion of the second schedule property. Further, Commissioner's reports also reveal that the defendant encroached the common pathway and constructed the stair case. The extent and direction may vary. However, Page No.16/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 plaintiffs 1 and 2 have established that the defendant made the said construction by encroaching the portion of the second schedule property, which is a common pathway. Therefore, the defendant is not entitled to make any construction in the common pathway. Both the Courts below have correctly exercised their discretion by granting mandatory injunction. Therefore, the discretion exercised by both the Courts below is neither arbitrary nor in violation of any statutory provisions. Accordingly, this substantial question of law is answered against the defendant.
20. The trial Court and the first appellate Court after considering the entire materials available on record decreed the suit in favour of plaintiffs 1 and 2. This Court does not find any valid reason to interfere with the concurrent findings on facts. Further, principles of delay and laches would not strictly applicable in civil cases when the suit is filed within the period of limitation.
21. In the result, this Second Appeal fails and the same is dismissed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
10.06.2025 Index: Yes/ No Page No.17/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm ) S.A.No.467 of 1999 Internet: Yes/No Speaking Order/Non-speaking Order ms To
1.The Principal Subordinate Judge, Tirunelveli.
2.The Additional District Munsif, Tirunelveli.
3. The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
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cs/ms Pre-delivery judgment in S.A.No.467 of 1999 10.06.2025 Page No.19/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/06/2025 06:18:04 pm )