Madras High Court
R.Pappathi vs K.Subramani on 21 August, 2019
Author: S.S. Sundar
Bench: S.S. Sundar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
S.A.(MD).No.360 of 2019
and C.M.P.(MD).No.7450 of 2019
1.R.Pappathi
2.S.Balamurugan
3.S.Balasubramanian
4.S.Balakumar .. Appellants/Appellants
Vs.
K.Subramani .. Respondent/Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure Code, against the decree and judgment, dated 09.08.2018 made
in A.S.No.09 of 2016 on the file of the Principal Subordinate Court, Madurai
confirming the judgment and decree dated 26.08.2014 made in O.S.No.150
of 2004 on the file of the District Munsif, Madurai Taluk.
For Appellants : Mr.R.Suriyanarayanan
For Respondents : Mr.V.Om Prakash
JUDGMENT
The defendants in the suit in O.S.No.150 of 2004 on the file of the District Munsif Court, Madurai, are the appellants. http://www.judis.nic.in 2
2.The respondent in this appeal filed the suit in O.S.No.150 of 2004 on the file of District Munsif Court, Madurai Taluk, for mandatory injunction directing the defendants/appellants herein to remove the encroached portion to the width of one feet into the suit pathway and for permanent injunction restraining the appellants from in any way interfering with the respondent's peaceful possession of the pathway described in the suit schedule. The case of the plaintiff is that the suit property is a private pathway situated in T.S.No.1200, Theivakanni South Street, Anuppanadi, Madurai. The respondent pleaded that he purchased a house plot along with a pathway from one Avadaiammal under a registered sale deed, dated 15.03.1972. It is also his case that he had put up row of houses and use the pathway to have access to the buildings constructed by him from the main road. It is his specific case that the pathway also was purchased by the plaintiff from his vendor to have access to his property. It is also pleaded by the plaintiff that the suit pathway is the only way to reach his property.
3.The plaintiff also annexed a rough plan along with the plaint to identify the suit property and the property for which the pathway was purchased along with the plot in which the plaintiff had put up construction. The pathway described in the plaint is having the width of 2 feet on the http://www.judis.nic.in 3 eastern end and 7 feet on the western end. Claiming exclusive right over the pathway the suit came to be filed. Alleging that the defendant who is the owner of the northern property had encroached into the pathway by one feet, the suit came to be filed.
4.The appellants are the legal representatives of the deceased sole defendant in the suit. The defendant filed a written statement claiming pathway right over the suit property. In para 4 of the written statement, the defendant has pleaded as follows:
@4/gpujpthjpapd; Mjp ghj;jpa!;jh; kw;Wk; thjp Mfpa ,UtUnk j';fsJ brhj;Jfis Mt[ilak;khs;
vd;gthplkpUe;J jhd; th';fpa[s;sdh;/ gpujpthjp
jd;Dila brhj;ij fpiuak; th';Fk;bghGJ me;j
brhj;jpy; jhth ghijia xl;oa[s;s gFjpapy;
Kd;g[ ,Ue;j Xl;L tPl;od; thhpj; jz;zPh; jhth ghijapd; tHpahf jhd; btwpnaWtJ tHf;fk;. Mij nghd;W me;j Xl;L tPl;od; bjw;F Rthpy; kuhkj;J ntiyfs; bra;tjw;F gpujpthjp jhth ghijia jhd; ePzl ; fhykhf gad;gLj;jp te;Js;sdh;/ ,t;thW gpujpthjp jhth ghijia g[y';fp tUtJ thjpf;F ed;F bjhpa[k;/@
5.It is therefore, the case of the defendant is evident that he has pleaded only an easementary right over the suit property. Apart from the pleading referred above it is also contended by the defendant that the sale http://www.judis.nic.in 4 deed in respect of the pathway was without any consideration and that the pathway is a common pathway. Sum and substance, the defendant has disputed only the exclusive right of the plaintiff and not regarding the existence of pathway or the title over the suit pathway.
6.The trial Court after framing necessary issues found that the plaintiff is entitled to mandatory injunction as well as permanent injunction as prayed for as he has proved his title to the suit pathway. Though the defendant claimed an easementary right, the trial Court further found that no document or evidence is produced before the Court to sustain the plea of the defendant claiming right over the property. The plaintiff has produced several documents. Even, the sale deed that was relied upon by the plaintiff would clearly show that the plaintiff has purchased the house site along with the pathway which is described as the second item in the sale deed.
7.Aggrieved by the judgment and decree of the trial Court granting decree for mandatory injunction and permanent injunction, the appellants preferred an appeal in A.S.No.9 of 2016. The appellate Court also concurred with the trial Court and confirmed the judgment and decree of the trial Court. The lower Appellate Court considered all the documents http://www.judis.nic.in 5 independently and came to the conclusion that the plaintiff has established his exclusive title to the suit property and that the defendants have no manner of right over the suit property. It is to be noted that the appellate Court found that the construction put up by the defendant encroaching into the suit property is an act of vengeance and that the same has to be removed as the defendant has no manner of right to interfere with the exclusive right of plaintiff. Aggrieved by the concurrent judgment and decree of the court below, the above second appeal has been preferred by the defendants.
8.The appellants in their memorandum of grounds have framed the following substantial questions of law:
1. Whether the Courts below correct in decreeing the suit for mandatory injunction to remove the alleged encroachment in the suit pathway, without granting relief of declaration of the same?
2. Whether the suit for mandatory injunction is maintainable without seeking the relief of declaration of the suit pathway is an absolute one of the plaintiff?
3. Whether the suit for mandatory injunction is maintainable against the defendants instead of seeking a relief of recovery of possession, even assuming the plaintiffs' the absolute owner of the suit pathway?
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4. Whether the suit for declaration is necessary one when the defendants denied the absolute title and right of the plaintiff over the suit pathway?
5. Whether the suit is barred by limitation as the same is not filed within three years from the date of the alleged encroachment?
6. Whether the relief of mandatory injunction can be granted as there is an acquiescence over the construction of the defendants over the suit property?
9.The learned counsel for the appellants submitted that the plaintiff is not entitled to get a decree for mandatory injunction and permanent injunction without seeking a declaratory relief. Since the plaintiff's exclusive title is denied by the appellants, the learned counsel for the appellants submitted that the Court is not supposed to decide the question of title where there is no prayer for declaration of title. The learned counsel then submitted that the suit for mandatory injunction cannot be granted without a prayer for declaration of title and that the relief granted by the courts below are contrary to several precedents. The learned counsel also submitted that this suit is bared by limitation and that the defendant also has a right to use the pathway.
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10.This Court consider the pleadings, documents and the findings of the courts below.
11.First of all, the suit for mandatory injunction and permanent injunction in a case like this cannot be declined merely because there is no declaratory relief sought for. The person is entitled to the relief of injunction as against any one, who has no better title than the plaintiff himself. In the present case, the suit for injunction is based on title. The title of plaintiff is not specifically denied and the defendant himself pleaded only a right of easement to have access through the pathway. In such circumstances, though there is a denial of title in the written statement, it can be considered that the defendant wants to establish only an easementary right. Having pleaded right of easement to use the land as pathway to maintain his southern wall, the defendant has put up a construction encroaching into the property thereby depriving the right of the plaintiff. Therefore, this Court is unable to appreciate the contention of the counsel for the appellants that the suit without prayer for declaration of title is not maintainable. In a case where there are complicated issues and the plaintiff's title cannot be decided without going into such complicated issues the Court will be justified in dispensing with a prayer for declaration of title. http://www.judis.nic.in 8
12.In the present case, the plaintiff and defendants have purchased their respective properties from the same person. The document Ex.A1 relied upon by the plaintiff clearly shows that the plaintiff has also purchased the pathway which is described as second item in the sale deed. The property namely, the suit pathway has been described with reference to four boundaries as well as measurements even in the document. The defendant has not produced any document to show that such right of easement was conferred on him by the original owner or his vendor. There is no document or evidence adduced by the plaintiff. In such circumstances, the findings of the court below are well founded and supported by reasons. The Courts below have independently considered and found that the plaintiff is the exclusive owner of the suit pathway. There is no illegality or irregularity in appreciation of evidence or conclusion in the judgments. In such circumstances, this Court is unable to find any substantial question of law to vitiate the judgment and decree of the courts below.
13.Accordingly, this second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
21.08.2019 Index : Yes / No Internet: yes / No TM http://www.judis.nic.in 9 To
1.The Principal Sub Judge, Madurai.
2.The District Munsif, Madurai Taluk.
3.The Section Officer, E.R/V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 10 S.S. SUNDAR, J., TM S.A.(MD).No.360 of 2019 21.08.2019 http://www.judis.nic.in