Madras High Court
Krishnammal vs Paramasivan on 16 December, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/12/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.(MD)No.76 of 2010 and M.P(MD)No.1 of 2010 1.Krishnammal 2.Shanmugam ... Appellants/Appellants/ Defendants Vs. 1.Paramasivan 2.Thayammal ... Respondents/Respondents/ Plaintiffs Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.07.2008 made in A.S.No.50 of 2007 on the file of the Principal Sub Court, Tenkasi, in confirming the judgment and decree dated 16.02.2007 made in O.S.No.194 of 2004 on the file of the District Munsif Court, Shencottah. !For Appellants ... Mr.S.Ramesh alias Ramiah ^For Respondents... Mr.S.Meenakshi Sundaram * * * * * :JUDGMENT
This second appeal is focussed by the defendants challenging the judgment and decree dated 29.07.2008 passed in A.S.No.50 of 2007 on the file of the Principal Sub Court, Tenkasi, in confirming the judgment and decree dated 16.02.2007 passed in O.S.No.194 of 2004 on the file of the District Munsif Court, Shencottah.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Broadly, but briefly, the relevant facts absolutely necessary for the disposal of this second appeal would run thus:
The plaintiffs filed the suit seeking the reliefs to the effect that the defendants should remove the encroachment made in the common pathway on the main ground that the pathway found described in the schedule of the plaint is the one meant for the use of both parties; however, the defendants high-handedly started putting up the staircase encroaching a portion of the common pathway; whereupon the plaintiffs were constrained to file the suit.
4. Per contra, the defendants in a bid to challenge and impugn the averments in the plaint filed the written statement, the gist and kernel of it, would run thusly:
There was no encroachment in the suit pathway. The description of the suit property as found set out in the plaint was not correct. The construction put up by the defendants, was not forming part of the said common pathway. The village map would exemplify and demonstrate that the extent of the common pathway was only 5 1/4 feet and not 2 1/2 C.C. (Carpenter Cubit). Accordingly, he would pray for the dismissal of the suit.
5. Whereupon, the trial Court framed the relevant issues.
6. During trial, P.W.1 was examined and Exs.A.1 to A.3 were marked on the side of the plaintiffs. D.W.1 was examined and Ex.B.1 was marked on the side of the defendants.
7. Ultimately, the trial Court decreed the suit, as against which the defendants filed the appeal for nothing but to be dismissed by the first appellate Court.
8. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the present second appeal has been focussed by the defendants on various grounds and also suggesting the following substantial questions of law:
"1. Whether the Lower Courts are correct in accepting and acting upon Ex.A.1 and Ex.A.2 even without proper Pleadings or Proof?
2. Whether the assumption by the Lower Courts as to the Validity and Entitlements of Old Documents is correct and in accordance with law?
3. Whether the Suit for Mandatory Injunction is maintainable in law without a Prayer for Declaration?
4. Whether the Courts below are correct and justified in arriving at a finding of Encroachment and whether it is legally correct or sustainable?
5. Whether or not the Suit is Bad for not seeking the relief of Recovery of the allegedly lost Possession?
6. When the offending constructions have been already put up whether the Plaintiff is justified in seeking its Removal having not raised any objections earlier?
7. Even assuming that there is Encroachment whether the Lower Courts have considered as to what is the proper Remedy to be granted?
8. Whether the Lower Court are correct in considering Damages in lieu of Mandatory Injunction as per the judicial Principles and Pronouncements and whether the Lower Courts are correct in Ordering the Removal of the Steps?"
(extracted as such)
9. The dictum laid down by the Honourable Apex Court in the following decisions:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 and
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1;
would be to the effect that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.
10. The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
11. Keeping in mind the aforesaid dictum of the Honourable Apex Court, I would like to analyse the matter.
12. On hearing both sides, I have decided to frame the following substantial questions of law:
(i) Whether both the Courts below were justified in decreeing the suit allegedly ignoring Ex.B.1, the Village Map, but relying on Exs.A.1 and A.2?
(ii) Whether both the Courts below were justified in not giving any direction against the taking of sewage and sullage water of the plaintiffs' houses through an open canal, which is made to run along the common pathway and thereby shrinking and shortening the width of the common pathway as revealed by the Advocate Commissioner's report and sketch?
(iii) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?"
13. All the substantial questions of law are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one other.
14. A recapitulation and re'sume' of germane facts would run thusly:
The contentions of the plaintiffs are to the effect that there is an extent of 2 1/2 C.C of common pathway branching towards south from Amman koil street which is running from east to west. The defendants' property is situated to the south of the said Amman koil street and to the west of the said common pathway. The plaintiffs' houses are situated to the south of the defendants' houses. Obviously and axiomatically, the plaintiffs who have their ingress and egress to their houses, should make use of the common pathway having the width of 2 1/2 C.C. According to the plaintiffs, the defendants encroached into the said common pathway to an extent of 1 feet and 2 inches adjoining their plots on the eastern side. In other words, an extent of 1.2 feet (14 inches) on the extreme western portion of the said common pathway adjoining the plaintiffs' land was encroached by the defendants by putting up a staircase.
15. The learned Counsel for the defendants would put forth and set forth his arguments which could pithily and concisely be set out thus:
(i) Ex.B.1, the Village map, being the public document, would unambiguously and unequivocally display and demonstrate that the said common pathway is having a width of 5 1/4 feet, whereas in an unauthenticated manner, the plaintiffs by placing reliance on their self-serving documents would project and contend vainly and vexatiously that the width of the pathway, is 2 1/2 C.C [2 3/4 feet X 2 1/2 = 6.8 feet]
(ii) The plaintiffs who asserted their right should have precisely proved before the Court as to how they claimed the pathway as the one having a width of 6.8 feet. Whereas the public document namely Ex.B.1 would evince and evidence that the pathway is only to an extent of 5 1/4 feet width, as per which the defendants are well within their area and by no stretch of imagination, they could be labelled or dubbed as encroachers or that they allegedly encroached into the common pathway to the extent of 14 inches. The comparative hardship should also be taken into consideration before granting mandatory injunction, which the Courts below failed to take note of.
(iii) A catena of decisions is to the effect that if one joint owner raises some construction in the joint property, the other joint owner cannot seek for mandatory injunction. When such is the position, both the Courts below were not justified in ordering demolition of the alleged encroached portion. If for any reason, this Court comes to the conclusion that there was some slight encroachment, then the plaintiffs could adequately be compensated in money. It is not as though the nature of encroachment is such that the aggrieved party cannot be compensated in terms of money.
(iv) The plaintiffs, in fact, are taking their sewage and sullage water through a drainage canal of one feet width running from their houses to the said main road along the common pathway at the extreme eastern side, whereby the defendants deprived of their right to use the pathway in its fullest extent. The defendants are not having any sadist schadenfreude attitude in seeing that the plaintiffs are deprived of their facility on taking their sewage and sullage water through the said drainage canal. Meanwhile, the plaintiffs also should not have any such aggressive attitude towards the defendants in getting the alleged encroachment portion demolished. Accordingly, he would pray for setting aside the judgments and decrees of both the Courts below and for dismissing the original suit.
16. In a bid to shoot down and torpedo the arguments of the learned Counsel for the defendants, the learned Counsel for the plaintiffs would pilot his arguments, the pith and marrow of them, would run thusly:
(i) Exs.A.1 and A.2 are not mere self-serving documents, but genuine ones emerged at a point of time whom there had been no dispute emerged between the parties. Virtually, those are all ante litem motam documents which could rightly be relied upon. Ex.A.2 is an ancient document and the averments as found set out therein cannot be termed as self-serving versions. As per Exs.A.1 and A.2, the width of the common pathway was 2 1/2 C.C.
(ii) Accordingly, if viewed, it is well established by the Advocate Commissioner's report and sketch that the defendants encroached the said common pathway to an extent of 14 inches, which the defendants should necessarily remove it. There are no latches or acquiescence on the part of the plaintiffs to the raising of the said questionable structure by the defendants and the plaintiffs approached the Court diligently and promptly too. Neither of the parties could claim to have any right to make any construction, however negligible it might be in the common pathway and they cannot also burden it additionally in any manner. The width of the suit pathway itself is only 6.8 feet and in such a case, if out of that, 14 inches are excluded, then what remains would not be sufficient for the plaintiffs to take the vehicles like lorry or some such transport vehicles to their houses for transporting their belongings or some goods at times of need.
(iii) Without proving any special damage, the plaintiffs are entitled to seek mandatory injunction. Accordingly, he would submit that both the Courts below au fait with law and au curante with facts dealt with the matter warranting no interference in second appeal. According to him, there is no substantial question of law involved in this second appeal.
17. At the outset itself, I would like to refer to the decisions cited on either side.
18. The learned Counsel for the defendants would place reliance on the following decisions:
(i) Somasundaram Chetty and others v. Babu Alias Ramiah and others reported in 1919 (22) MLJ 62. An excerpt from it, would run thus:
"The finding of the District Judge as to the extent of the encroachment cannot be said to be satisfactory. The District Munsif found that it was two inches. The District Judge in paragraph 2 of his judgment says that this finding is open to doubt. In paragraph 3 he says that it would appear that the encroachment was half an inch along the line CD. In paragraph 4, he suggests that the encroachment was two inches and in paragraph 5 he concludes by saying that there has been some slight encroachment but that the extent of the encroachment has not been clearly made out. It may be that what the learned Judge means is that while, in his opinion, the encroachment cannot be less than half an inch, he is unable to hold positively either that it is two inches as found by the District Munsif or that it is not two inches. But this is not made clear. As an appellate court the way he ought to have regarded the question was whether the finding of the District Munsif on the point was wrong. If he was unable to hold that the finding was wrong, his duty was to confirm such finding. Further the District Judge having found that there was some encroachment he ought to have found what, in his opinion, was the least extent of the encroachment if he could not find the exact extent of the encroachment. I may observe that the maxim de minimis non curat lex has no application to the law of trespass.
I should, therefore, direct the District Court of Madura to submit a fresh finding, having regard to the above observations, on the question: "To what extent has the defendants' wall been built on the plaintiffs' parapet wall between the points C and D in the Commissioner's plan?"
As my learned brother is for confirming the judgment of the lower appellate court this appeal is dismissed with costs under S.98, Civil Procedure Code."
(ii) S.S.V.Krishnan Pillai and others v. Kilasathammal reported in A.I.R. 1928 Madras 810. An excerpt from it, would run thus:
"As I have already observed, each case has to be determined only on its own facts, and so doing I have come to the conclusion in this case that the mandatory injunction granted by the lower Courts with respect to the terrace or shed over the passage erected by the defendant cannot be maintained. I, therefore, dissolve the injunction so far as that structure is concerned. So far as the pial is concerned, the mandatory injunction will stand."
(iii) Krishna Kumar Singh and others v. Padum Singh and others reported in AIR (37) 1950 Patna 511. An excerpt from it, would run thus:
"[8] In the Tagore Law Lectures of 1895-96 on the Law of Joint Property and Partition in British India by R.C.Mitra this question has been discussed at some length with reference to the authority of the different Courts at pages 226 to 233, and the learned author has come to this conclusion:
"The result of the above discussion is, that in no case should the Courts, at the instance of a cosharer, order demolition of pucca buildings on a joint land, after the same have been erected by another cosharer, unless it be shown (1) that injury would otherwise accrue to the cosharer-plaintiff and (2) that before the buildings were started objection was taken to their erection; Nocurry Lall v. Brindabun Chunder, 8 Cal. 708. In short, it is only where a cosharer cannot be adequately compensated otherwise than by the demolition of a building that a Court of Equity should order such demolition.""
(iv) Bodi Reddy v. Appu Goundan reported in 1970 (II) MLJ 577. An excerpt from it, would run thus:
"Thus, in my opinion, whenever the plaintiff comes to the Court and prays for possession of his property in the occupation of a trespasser, with the incidental relief of mandatory injunction directing the trespasser to demolish the construction put up by him, there is no question of the Court exercising any discretion as to whether the mandatory injunction should be granted or award of damages alone would be sufficient and once the plaintiff has established his right to a decree for possession, that decree must follow irrespective of any consideration of laches, acquiescence, want of hardship or inconvenience to the plaintiff and any question of hardship to the defendant. The discretion is available only in suits where the plaintiff asks for an injunction against the defendant, not in respect of any trespass or encroachment committed by the defendant on the plaintiff's property itself, but in respect of any action done by the defendant on his own land or on a common property or on a public property interfering with the enjoyment of the plaintiff of his own property. In a suit in which the plaintiff asks for relief on the basis of his title to the property, the only circumstance in which the plaintiff may be denied the relief is when the principle of equitable estoppel will apply and even then it is not as if the Court declares the title of the plaintiff and denies the relief of possession to him in the exercise of its discretion, but prevents the plaintiff from asserting his title to the property itself on the basis that by his own conduct he has estopped himself from asserting any such right."
19. The learned Counsel for the plaintiffs would rely on the following decisions:
(i) R.S.Muthuswami Gounder v.A.Annamalai and others reported in AIR 1981 MADRAS 220.
(ii) M.Ramalingam v. N.Thangavelu reported in 1997 -2- L.W.35.
(iii) B.Thiagarajan and another v. K.Vedantham reported in 1998(11) MLJ
231.
(iv) S.Govindan v. S.Gopala Aiyengar reported in 1998-3-L.W.400. Certain excerpts from it, would run thus:
"15. The learned counsel for the respondent relies on the judgment of Veeraswami, J. (as he then was) reported in 1961 I MLJ 480 = 74 L.W. 182 (Sankarasubbu Pillai v. Parvathi Ammal). The learned counsel would seek to rely on the extract in the judgment that in the case of co-owners no one can claim an exclusive right to any particular part of the property owned in common and an encroachment by a co-owner by building upon a portion of the common property cannot be equated to trespass, unless such an encroachment is shown to have been objected to by the other co-owners at the earliest time. On the basis of the said observations, the learned counsel would contend that it was not competent for only one of the co-owners to claim exclusive right in the absence of objections from the other co-owners. I am afraid that the judgment does not lay down any such ratio and it is a settled principle of law that even a single co- owner who alleges to have been injured by the conduct of another co-owner, can maintain an objection against the other, notwithstanding as to whether some other co-owner, has objection to the offending action or not. Merely because some other co-owner does not raise an objection, the co-owner who actually suffered injury is not precluded from questioning the offending construction. The facts peculiar to the present case show that offending construction affects only the interests of the plaintiff and nobody else and therefore the plaintiff is definitely competent to maintain an objection even though the other co-owners may not object to the conduct of the defendant.
16. The learned counsel for the appellant relies on a Division Bench judgment of the Punjab High Court reported in AIR 1961 Punjab 528 (Sant Ram vs. Daya Ram) in which the Court has held that where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by one of the co-owners.
17. Further reliance is placed on the judgment of the Allahabad High Court reported in AIR 1978 Allahabad 178 (Prabhoo vs. Doodh Nath). The learned Judge of the Allahabad High Court has held that one co-owner has not in law any right to appropriate land to himself out of joint land against the consent of his co- owners and the high handed action by one co-owner cannot be encouraged by courts of law, unless some special equity is shown in favour of the defendant in a suit for demolition of constructions. In this case, it is admitted in the evidence of DW-1 that he has not obtained any permission from the plaintiff or the local authorities before the construction was put up.
18. Having regard to the facts and circumstances, I am unable to sustain the judgments of the courts below which are totally unsustainable on legal issues arising in the above second appeal on the admitted facts and the evidence adduced in the dispute between the parties hereto. Therefore I am inclined to hold that the plaintiff is entitled to mandatory injunction as prayed for by him. The learned counsel for the appellant also makes it clear that his client will not and cannot have any objection to the defendant putting up a lavatory in front of his own portion and therefore there is no question of any disability that would be caused to the defendant in granting the decree for mandatory injunction."
(v) Sagayanathan v. D.Lingappan reported in 2009(4) TLNJ 155 (Civil).
20. The learned Counsel for the defendants placing strong reliance on those decisions cited by him, would argue that if for any reason, this Court holds that there is any encroachment, then the same could be compensated in terms of money, but demolition is an extreme remedy which is not required to be resorted to and that too, when the plaintiffs and the defendants are having joint ownership over the said common pathway.
21. Whereas the learned Counsel for the plaintiffs citing the decisions set out supra, would submit that so far the pathway is concerned, the method and manner of viewing the problem is different and inasmuch as the defendants shortened the width of the pathway unduly, it warranted the interference of the Courts and accordingly, both the Courts below correctly decreed the suit paving no way for the second appeal.
22. The bedrock of the decisions cited on the side of the defendants is to the effect that if one co-owner makes any construction or effects some modification, blindly no demolition by way of granting mandatory injunction would arise. But, those decisions are not relating to any common pathway. Here, one important fact should not be lost sight of. The width of the pathway itself is small. At this juncture, it has to be seen as to what is the actual width of the pathway.
23. Exs.A.1 and A.2 are certainly ante litem motam documents. In other words, those documents emerged when there was no dispute at all. The dispute arose only subsequently and that too, when the defendants were trying to put up the alleged staircase structure referred to supra in a part of the common pathway. The defendants on their part have not produced any documents as to what is the actual width of the pathway except Ex.B.1, the village map. It is common knowledge that the village map is something drawn by the Government Officials during the general survey. There is no indication also that after hearing both sides, the said village map relating to the common pathway emerged. Normally, the survey maps would depict and delineate, detail and portray the public roads, pathways, etc. No doubt, incidentally, while describing the plots of the individuals in the map, there would also be reference to the common passage and accuracy cannot be expected in such maps.
24. The cardinal and core question arises as to whether the right of a party has to be decided based on the village map or based on authentic documents touching the right of the rival parties. In respect of the village map vis-a- vis authentic documents, the answer is at once clear that the dispute has to be resolved only based on authentic documents.
25. Here, Exs.A.1 and A.2 would refer to the suit common pathway of width of of 2 + C.C. and in fact, from the evidence, it could be seen pellucidly and palpably that the said extent was adopted and adhered to quite uptill the erring construction put up by the defendants. The Advocate Commissioner in his report and sketch gave a picturesque description as to the open space available adjacent to the defendants' property and the width of that open space varies from one portion to another, with which this Court is not very much concerned. But, the width of 6.8 feet is available through out but for offending staircase. At the entrance, it is shown by the Advocate Commissioner that the newly offending the staircase is having a width of 2 feet and the remaining open space is having a width of 5 1/2 feet. As such, it is clear that before raising the construction of the staircase by the defendants, there existed, at the spot, a common pathway having a width of 6.8 feet. A fortiori, I could see considerable force in the contention of the plaintiffs that as per Exs.A.1 and A.2, there existed a common pathway having a width of 6.8 feet. There is no basis at all to hold that the width of the common pathway was only 5 + feet. Absolutely, there is no reliable oral and documentary evidence to buttress and fortify the claim of the defendants that the width of the common pathway was only 5 1/2 feet or 5 1/4 feet.
26. I recollect the maxims "Vox emissa volat; litera scripta manet." [The uttered voice flies; the written letter remains.] and "Vox audita perit, littera scripta manet." [The heard word is lost, the written letter abides.]. Accordingly, the written versions in the ancient document Ex.A.2, would certainly have its own weight in adjudging the width of the said common pathway. Accordingly, both the Courts below cannot be found fault with for having rendered their judgments placing reliance on such reliable documents, which warrants no interference in the second appeal.
27. The next phase of consideration is as to whether the said encroachment should be ordered to be demolished or whether the plaintiffs could be compensated in terms of money.
28. As has been already indicated and pointed out supra, the common pathway is a very small one having a width of 6.8 feet and in that if 14 inches are sacrificed or excluded, deducted or subtracted, then certainly the width would get minimized to an extent of 5 + feet which without any proof of special damage, would certainly cause hindrance to both the parties. Much arguments have been advanced on both sides relating to the feasibility and tenability, possibility and probability or otherwise of taking vehicles through that common passage.
29. The learned Counsel for the defendants would submit that even if it is of 6.8 feet width of common pathway, a lorry cannot be driven along the passage as to reach the plaintiffs' houses which are situated at the end of that pathway.
30. Whereas the learned Counsel for the plaintiffs would submit that some goods vehicles of considerable size have to be taken along that passage to the plaintiffs' houses, because at times, heavy articles have to be transported to their houses or out of their houses and at that time, 5 + feet width of pathway would not be sufficient at all even by phantasmagorical thoughts.
31. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that this Court need not expect the plaintiffs to prove what special damage that would befall on them, if the encroachment is not removed. The act of the defendants in encroaching the common pathway is quite antithetical to the common or garden principle that the parties entitled to use the common pathway should adhere to the catchy phrase "Reciprocal obligations of restricted use and enjoyment" which is based on the maxim "Sic utere tuo ut alienum non laedas." [So use your own as not to injure another's property].
32. I recall the maxim "Ubi jus, ibi remedium." [Where there is a right, there is a remedy.]
33. Here, as has been already highlighted supra, the plaintiffs established their right over the common pathway of a width of 6.8 feet. In such a case, the plaintiffs cannot be compelled to restrict or dwarf, contain or shorten their right over it. The matter has to be viewed from one other angle also. What right the defendants are having to perpetuate and retain the encroachment made by them. I recall and recollect the maxim "Cujus est solum, ejus est usque ad coelum." [One who owns the surface of the ground owns, or has an exclusive right to everything that is upon or above it to an indefinite height]. Accordingly, if viewed, the ground area should not have been encroached by the defendants to the detriment of the plaintiffs.
34. The decision in S.Govindan v. S.Gopala Aiyengar reported in 1998-3- L.W.400, is directly on the point that in respect of the common pathway is concerned, neither of the parties is entitled to encroach upon it and it has to be used as a common passage only. Trite, the proposition of law, is that if the common pathway has to be used by the persons concerned, none else other than the persons entitled to use, could use it and they should not also put the common pathway into abnormal use so as to burden it unduly. I would like to fruitfully rely on the precedent in Chhaganlal v. Kesarlal and others reported in AIR 1959 RAJASTHAN 97. An excerpt from it, would run thus:
"Learned counsel for the plaintiffs Kesarlal and Lalchand has urged on the other hand that the passage was narrowed down to 3' 9" in width, that the trial court had itself remarked that it did not leave any room, even for large sacks of cotton or bier to be carried through it in case of death of someone amongst the occupants of the house, that under these circumstances the first appellate court ought not to have set aside the trial court's order regarding the demolition of the new construction.
It has been urged that the plaintiffs are not prepared to accept Rs. 150/- that the injury is not capable of compensation and that the decree of the first appellate court should therefore be set aside and that of the trial court should be restored. In reply to this argument learned counsel for defendant-appellant Chhaganlal has urged that his client has not raised a wall over the entire length, but he has only raised 2 pillars on one end, that similar pillars were already existing on the other end and his client has only covered the passage. It is contended that under these circumstances the trial court's order for demolition of the new construction was not proper. In support of his argument learned counsel has referred to Paras Ram v. Sherjit, ILR 9 All 661. In that case it was held that "the mere circumstance of a building being erected by a joint owner of land without the permission of his co-owners, and, even in spite of their protest, is not sufficient, in itself, to entitle such co-owners to obtain the demolition of such building, unless they can show that the building has caused such material and substantial injury as a Court of equity could not remedy in a suit for partition of the joint land".
It would suffice to say that the observations made above by the learned Single Judge are not helpful to the defendant, because the passage in dispute is so narrowed that it is not capable of being partitioned between the parties and therefore, it is clear that the injury sustained by the plaintiffs is substantial and material and a court of equity cannot remedy the same even if a suit for partition of that property is ever brought. Learned counsel bas next referred to Gopal Ram v. Ram Prasad AIR 1952 Pat 351. In that case also the learned Judges had laid down two principles as follows :
"In the first place, if one of the cosharers intends to appropriate to his own use a portion of the joint land and takes up a portion of such land and builds a pucca house thereon he ought not to be treated as a trespasser. Secondly, if a co-sharer seeing one of his co-sharers erect a house on a piece of joint land stands by and makes no objection, a Court of Equity will presume his acquiescence to the erection of the building and will not order demolition of the pucca building on the joint land unless it is shown that injury would accrue to the co-sharer plaintiff and also before the building was started objection was taken to its erection."
The learned Judges in the above case followed the view taken in Paras Ram's case, ILR 9 All, 661 but it has already been pointed out above that the principle which was laid down by Mahmood J. in Paras Ram's case, ILR 9 All 661 is of little help to the defendant-appellant in the facts and circumstances of the present case and therefore the view ex-pressed in the Patna case, AIR 1952 Pat 351 does not carry the defendant's case any further. Learned counsel has then referred to Joy Chunder Rukhit v. Bipro Churn Rukhit, ILR 14 Cal 236. This case was referred in Paras Rani's case, ILR 9 All. 661 and it is therefore distinguishable for the same reason. Learned counsel has also referred to Baru Mal v. Rala Ram, AIR 1938 Lah 779. In that case a lane which led to the property of the plaintiff was covered by the defendants partly, that is, the part of the lane adjoining their own property was roofed over by them. The plaintiff sued for an injunction to compel the removal of the structure. It was observed by the learned Judge as follows:
"In the ordinary way, I do not see why one of the owners should not sue for injunction for the removal of a structure of this kind, even though the damage only be very slight or hypothetical, and on this point I do not think that the view taken by the lower courts was correct. There is however an entirely different reason for refusing to grant an injunction in this case. The plaintiff has made an exactly similar use of the lane opposite his own property, and in these circumstances I do not think that he can ask the defendants to remove their structure, so long as his own structure remains, even though their own encroachment may be greater than his."
It is absolutely clear from the above observation that it is of no help to the defendant-appellant. On the other hand, it shows that according to the learned Judge also the ordinary remedy which should have been given to the plaintiff was the removal of the structure from the joint property even though the damage was slight or hypothetical. It further appears that the learned Judge would not have hesitated to give that remedy to the plaintiff, but it was refused for another reason.
That reason was that the plaintiff himself had covered a part of the lane and this is why the learned Judge did not think it proper to order the demolition of the construction made by the defendants, since he thought that the defendants were also in equity entitled to make a construction similar to the one which was made by the plaintiff.
On the other hand, it may be pointed out that in Subbayya v. Somalingam AIR 1920 Mad 223 the plaintiffs and the defendants were joint owners of a lane which was 10 in width. The defendants had encroached upon the lane to the extent of 1' in breadth. The plaintiffs brought the suit for mandatory injunction for the removal of the obstruction. It was observed in that case as follows:
"The principle, so far as we are able to see, is that, if it is common property and if there are other remedies open to the party who has been affected by the wrongful act of the co-owner, then the Courts should not ordinarily grant a mandatory injunction. But in this case no other remedy is possible. Therefore the property should be left in its original condition if there is to be convenient enjoyment, as the lane cannot be partitioned. Under these circumstances, when one of the joint owners puts an obstruction on the lane which has the effect of making it less convenient for the other co-owner, the only remedy open to him is to sue for a mandatory injunction".
With these observations, which very fittingly apply to the present case also, the order of the Subordinate Judge demolishing the steps and pials was maintained. Similarly, in Yusuf Alim Hakimji v. Muhammad Din and Sons, AIR 1927 Lah 718, it was held that -
"In a suit for injunction against a co-owner relating to the erection of structure on the joint property, if the property is not particle, there is no occasion for the plaintiff to show any special damage. It is sufficient for him to show that he has been deprived of the user of the property as it stood originally".
In Nathulal v. Roshanlal 1953 Raj L. W. 60 the defendant had put in brackets and constructed a Ros and thereby made an encroachment on the chowk which jointly belonged to the parties. It was held that -
"The land on which the construction is made is not agricultural land and is not such which can be partitioned. The situation of the joint chowk in this case is in the crowded town of Udaipur where open spaces are necessary, not only for rights of way and use on ceremonial occasions but also in order to supply fresh air to the occupiers of the neighbouring houses."
The order of the learned District Judge issuing a mandatory injunction for the demolition of the construction, i.e. the brackets and Ros was maintained. It is clear from the observations made above that the correct principle of law is that if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction.
In the present case it has already been pointed out above that the passage which was joint property of the parties was only 5' 3 1/2" in width that it has been narrowed down to a considerable extent i.e. to 3' 9" and it has been further covered by the defendant. This is a clear infringement of the right of the other co-owner, namely, the plaintiffs. The passage is certainly incapable of partition between the parties and under the circumstances the only remedy which could be given to the plaintiffs was a mandatory injunction to the defendant for demolition of the new construction. The decree given by the trial court was thus correct. The first appellate court was not justified in modifying it in the manner in which it has been done."
35. As such, I am of the considered view that so far the common pathways are concerned, it should be taken as an invariable and inflexible rule that whenever there is an encroachment by any of the common owners, they should necessarily be ordered to remove such encroachment. The principle of "De minimis non curat lex" [The law does not notice or concern itself with trifling matters.], in such matters can not be applied. If at all, the encroachment is of pococurante extent in a very large common passage, the matter would be slightly different. Here out the width of 6.8 feet, 14 inches' encroachment exists and it cannot be pooh-poohed or belittled, slighted or discarded as a pococurante extent warranting the application of the principle of "De minimis non curat lex".
36. Hence, I am of the view that both the Courts below sieved through the evidence and justly ordered to remove the encroachment made by the defendants.
37. While holding so, this Court being the High Court cannot be oblivious of the fact that the plaintiffs are taking openly their sewage and sullage water along the common pathway at the extreme eastern side of the said common pathway and thereby depriving the defendants of their full right of usage of the pathway.
38. Inasmuch as the subject matter of the suit is the common pathway, this Court, in my considered opinion, is having ample jurisdiction in the interest of justice to record the submission of the learned Counsel for the plaintiffs that the plaintiffs would make it in such a manner that the said drainage canal is not running openly and it is taken beneath the surface in a concealed manner, so that both sides would be in a position to use the surface of the common passage fully. The surface of the pathway must be made available to both sides as a common passage. In case of default in implementing the judgments and decrees of this Court and the lower Courts, either of them is having the right to get it enforced by filing E.P. to that effect at the cost of the defaulting party. Both the plaintiffs and the defendants have to carry out their obligations emerged under this judgment within a period of three months from the date of receipt of a copy of this judgment, failing which either of them is having the right to file E.P and get their rights enforced at the cost of the other.
39. Accordingly, the substantial questions of law are answered as under:
(a) The substantial question of law No.(i) is answered to the effect that both the Courts below were justified in decreeing the suit allegedly ignoring Ex.B.1, the Village Map and relying on Exs.A.1 and A.2.
(b) The substantial question of law No.(ii) is answered to the effect that both the Courts below were not justified in not giving any direction against the taking of sewage and sullage water of the plaintiffs' houses through that open canal along the common pathway.
(c) The substantial question of law No.(iii) is answered to the effect that there is no perversity or illegality in the judgments and decrees of both the Courts below.
40. With the above directions, the Second Appeal is ordered, confirming the judgment and decree dated 29.07.2008 passed in A.S.No.50 of 2007 on the file of the Principal Sub Court, Tenkasi, in confirming the judgment and decree dated 16.02.2007 passed in O.S.No.194 of 2004 on the file of the District Munsif Court, Shencottah and also in issuing additional mandates as set out supra. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
rsb To
1.The Subordinate Court, Thoothukudi.
2.The District Munsif Court, Thoothukudi.