Madras High Court
Ayyasamy Pillai vs Annamalai Pillai (Died) on 22 October, 2024
Author: S.Srimathy
Bench: S.Srimathy
C.R.P.(MD)No.1759 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
C.R.P.(MD)No.1759 of 2021
and
C.M.P.(MD)No.9377 of 2021
Ariyamalai Ammal (Died)
1.Ayyasamy Pillai
Dhanapal (Died)
2.Sulochana
3.Suresh
4.Sakthi ... Petitioners
Vs.
Annamalai Pillai (Died)
1.Nagarajan
2.Kasi Vishwanathan
Thilagam (Died)
Rajalakshmi (Died)
3.Sivasubramanian
4.Visalakshi
https://www.mhc.tn.gov.in/judis
1/8
C.R.P.(MD)No.1759 of 2021
5.Sakthivel
6.Palanivel ... Respondents
PRAYER : Civil Revision Petition is filed under Section 115 of C.P.C., against
the order and decree, dated 17.03.2021, passed in E.A.No.5 of 2021 in E.P.No.1
of 2020 in O.S.No.377 of 1979 on the file of the District Munsif cum Judicial
Magistrate, Srirangam.
For Petitioners : Mr.P.Thiyagarajan
For Respondents : Mr.S.Ramesh
Assisted Court : Mr.V.Om Prakash
Government Advocate
*****
ORDER
The present civil revision petition is filed by the plaintiff in the suit against the order, dated 17.03.2021, passed in E.A.No.5 of 2021 in E.P.No.1 of 2020 in O.S.No.377 of 1979 on the file of the District Munsif cum Judicial Magistrate, Srirangam.
2. The suit in O.S.No.377 of 1979 is filed by Ariyamalai Ammal for bare injunction restraining the defendants from interfering in the peaceful possession of the suit property. Admittedly, the plaintiff is the owner of the property in https://www.mhc.tn.gov.in/judis 2/8 C.R.P.(MD)No.1759 of 2021 Survey No.135/A1 and having possession. The suit property in adjacent portion situated in Survey No.135/A2 is classified as vaikal poramboke as per the revenue records and this portion also is in possession of the plaintiff. And the suit was dismissed vide judgment and decree dated 23.12.1989. However, on appeal the bare injunction was granted in favour of the plaintiff vide judgment and decree dated 30.10.1990, wherein the Appellate Court held that possession is with the plaintiff and the same is proved, hence the plaintiff is entitled to injunction. Hence the defendants are restrained from interfering in the peaceful possession of the portion stated as vaikal poramboke. The injunction was confirmed in the second appeal, vide judgment and decree, dated 28.04.2003.
3. Thereafter, the plaintiff had filed E.P.No.368 of 2003 and the defendant had filed counter. The EP Court had appointed Advocate Commissioner. After hearing the parties, the EP was allowed directing the defendants to remove the encroachments of tiled roofing over the east-west wall on the north of the suit property, door way filter and bore pipes in the suit property within a period of one month, failing which arrest would be ordered. Aggrieved over the defendants had https://www.mhc.tn.gov.in/judis 3/8 C.R.P.(MD)No.1759 of 2021 preferred CRP(MD)No.1367 of 2012. In the said CRP the High Court had appointed Advocate Commissioner. Based on the report of the Advocate Commissioner the High Court had held that the EP Court is correct in directing to remove the encroachments and dismissed the Civil Revision Petition.
4. Thereafter, the plaintiff again had filed E.P.No.1 of 2020 inter alia praying to remove the encroachment, wherein the defendants had encroached by erecting sunshade in the first floor and second floor. The defendants had vehemently objected to the said allegation and submitted that the said sunshade is erected in his place. Hence had filed E.A.No.5 of 2021 inter alia praying to determining the boundaries of the suit property with the assistance of surveyor. The said E.A. application for appointment of surveyor was allowed in favour of the defendants. Aggrieved over the same the present Civil Revision Petition is filed.
5. In order to resolve the issue between the parties and in order to ascertain the nature of encroachment in the suit property, this Court directed the Tahsildar https://www.mhc.tn.gov.in/judis 4/8 C.R.P.(MD)No.1759 of 2021 to inspect the suit property and report the same. The Taluk Deputy Surveyor, Srirangam Taluk namely, A.Xavier Franklin, inspected the property and submitted a report, wherein it is stated that the ground floor is still maintained as vaikal poramboke which is in possession of the plaintiffs and there is no encroachment. However, two sun shades were erected by protruding a small portion of 2 feet 9 inches in the first floor and in the second floor. But the same is not erected in the plaintiff’s place, but the same is erected in the defendant’s place. In other words, the sunshade is not in plaintiff’s place / space. And there is ample space in between the sunshade and the plaintiff’s property.
6. This Court is of the considered opinion when there is a space between the plaintiff’s space and the defendant’s space, there cannot be any disturbances for the plaintiffs. Further it is only sun shades in the first floor and second floor in the arial space. The defendants had not put up any encroachment in the ground space and still it is maintained as vaikal. The width of the vaikal is 3.5 meters. Even if the defendants had put up sunshade in first floor and second floor, in between the two houses, there is clear arial space of 3.5 width. However, the defendants are https://www.mhc.tn.gov.in/judis 5/8 C.R.P.(MD)No.1759 of 2021 restrained to erect any shade beyond the present shade. In other words, The defendants are restrained from putting up any structure on the northern side of the petitioners' property. Also the defendants are restrained from encroaching the said 3.5 meters in future. The sun shades put up in the first floor and the second floor which lies in the defendants space need not be removed.
7. Since the plaintiffs are in possession, they can enjoy the said vaikal portion as per the decree. However, the plaintiff shall not put up any construction in the vaikal space, since it is government land. It is made clear the plaintiff can use the land but cannot put up any construction in the vaikal. And the plaintiff is permitted to put up any construction in their own land in Survey No.135/1A. The defendants shall not interfere by draining the rain water in the said space and the defendants shall not drain the rain water in the plaintiff’s place through the said sunshade. The plaintiffs are entitled to put up fence by enclosing the vaikal along with their house. At the cost of repetition, the plaintiffs can put up fence and use the same as open space, but the plaintiffs cannot put up any construction in the said space in the vaikal.
https://www.mhc.tn.gov.in/judis 6/8 C.R.P.(MD)No.1759 of 2021
8. With the above said observations, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
22.10.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Tmg
To
1.District Munsif cum Judicial Magistrate,
Srirangam.
2.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
7/8
C.R.P.(MD)No.1759 of 2021
S.SRIMATHY, J.
Tmg
C.R.P.(MD)No.1759 of 2021
22.10.2024
https://www.mhc.tn.gov.in/judis
8/8