Madras High Court
N.Selvaraj vs S.Amrithalingam on 1 February, 2023
Author: P.T.Asha
Bench: P.T.Asha
SA.No.199 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2023
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
SA.No.199 of 2007
1.N.Selvaraj
2.T.Palaniyandi
... Appellants
Vs.
1.S.Amrithalingam
2.Murugavel
3.S.Subramanian
4.S.Aathiyappan
5.S.Shanmugavadivelu
6.Tmt.Parvathy
7.Vembarasi
8.Shiyama
9.Minor.Balakumar
[Rep. by his mother and natural Guardian, Tmt. Vembarasi,7th
respondent.]
... Respondents
1/19
https://www.mhc.tn.gov.in/judis
SA.No.199 of 2007
PRAYER: Second Appeal filed under Section 100 of the CPC, against the
judgement and decree of the Additional District Judge, Pondicherry at
Karaikal made in A.S.No.60/2004 dated 24.08.2006 reversing the
judgement and decree of the Principal District Munsif at Karaikal in
OS.No.150 of 1999, dated 20.09.2004.
For Appellants : Mr.M.Krishnappan, Senior Counsel for
M/s.R.Swarnalatha
For Respondents : Mr.Sai Krishnan [R.6 to R.8]
: R.2 to R.5 served [Rep. by Power of
Attorney - R.1]
: R.1 [died vide order dated 03.08.2021]
: R.9, Minor [Rep. by R.7.]
JUDGEMENT
The defendants as appellants before this Court seek to challenge the judgement and decree passed by the Additional District Judge, Pondicherry at Karaikal in A.S.No.60 of 2004 in and by which the learned judge had reversed the judgment and decree passed by the Principal District Munsif at Karaikal. While narrating the facts of the case hereinafter, the parties are referred to in the same ranking as before the Principal District Munsif at Karaikal.
2/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007
2. The plaintiffs had filed the suit OS.No.150 of 1999 before the Principal District Munsif at Karaikal seeking permanent injunction restraining the defendants, their men, servants or agents from constructing further on the western side of the plaintiffs' house mentioned in the schedule and for mandatory injunction to remove the offending construction to an extent of 40 feet north to south closed to the western wall of the plaintiffs' house.
3. The property which is the subject matter of the above suit is herein below set out as follows :-
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4. It is the case of the plaintiffs that they are the owners of the house and its appurtenances bearing Door No.12, (Old Door No.17) Abirami Amman South Street, and T.R.Pattinam. It is their case that the house and its appurtenances have been in existence for more than 100 years and they have got the property under a Will dated 12.05.1975 executed by one Smt. Nagarathinam Ammal. The Will came into effect on the death of 4/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 Nagarathinam Ammal in the year 1978, from which date the plaintiffs have become the absolute owners of the said property. The Will in question has in very clear terms mentioned that the eastern and western wall of the house belonged absolutely to the said Nagarathinam Ammal. The plaintiffs would contend that they have been in enjoyment and possession of the same from the year 1978. Since the 1st plaintiff was suffering from certain physical ailments, he had been staying at Karaikal and taking treatment. It is the mother of the plaintiffs and the other brothers of the 1st plaintiff who are staying in the suit property and they are not worldly wise.
5. The 1st defendant is the owner of the property situate to the west of the suit schedule property and he is residing there. The 2nd defendant is the paternal uncle of the plaintiffs and he had been assisting the 1st defendant in the construction that was taking place in the 1st defendant’s property which is situate on the western side of the plaintiffs' property. Since the construction was very close to the western wall of the plaintiffs' house, the plaintiffs had objected to the same. The 2nd defendant as the agent of the 1st defendant was also put on notice about the same. 5/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007
6. It is the contention of the plaintiffs that the rules required that there should be a 5 feet set back between two house so as to help the owner to color wash the wall or repair the wall. The rain water also flows through this space and by reason of the defendants put his construction flush onto the western wall all these facilities that were available to the plaintiffs have now been denied to them. The plaintiffs had therefore issued a legal notice to the 2nd defendant who was the person carrying on the construction work. However, the defendants did not stop the construction and the 2nd defendant had issued a reply stating that the construction was being conducted as per the extant rules and regulations. The plaintiffs had sent a rejoinder informing the counsel for the 2nd defendant that they were not keen of approaching the Court but was desirous of bringing about an amicable settlement. However, the rejoinder did not evoke any reply, therefore the plaintiffs have come forward with the suit in question.
7. The 2nd defendant had filed a written statement which was adopted by the 1st defendant in which they had denied those of the allegations contained in the plaint which were not admitted by them. They had questioned the Will dated 12.05.1975 and it is the case of the defendants 6/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 that since the 1st defendant was a retired Government Servant all necessary precautions to measure the property belonging to the 1st defendant was first undertaken, the area demarcated and peg marked before the construction activities had taken place. The plaintiffs, according to the defendants were not living in the house at T.R.Pattinam and the same was lying vacant. The 2nd defendant had approached the plaintiffs with a request to lease out the vacant house to him during the period of the construction. The 2nd defendant was residing in the plaintiffs' house as a tenant during the construction work.
8. It is their case that the wall was raised within their limits after obtaining prior approval of the Planning Authority, Karaikal. The construction progressed for about 5 months and during this period the plaintiffs had visited the property on several occasion and were watching the construction activities. At no point of time they had raised any objection. The defendants while putting up the construction had ensured that the rain water which fell on the concrete roof would be emptied and drained into the road through the drainage which had been especially constructed on the eastern end. In fact, the rain water which was collected from the roof of the 7/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 plaintiff’s house also drains into this drainage. Therefore, the allegation that there is no space to drain out the rain water cannot be believed.
9. Further, it is the case of the defendants that the construction activities itself has been undertaken only after obtaining due approval from the Planning Authorities and that being the case if there is a mandatory requirements for setting aside a set back as of 5 feet, the authorities would have insisted upon the same. Therefore, since the plan has been approved it only shows that this statement of the plaintiffs is absolutely false. The defendants would contend that the plaintiffs by their conduct is stopped from filing this suit. The defendants would submit that the legal notices that had been issued by the plaintiffs had been suitably responded to.
10. After the amendment subsequent to the death of the 2nd plaintiff and the 9th plaintiff attaining majority, the defendants had stated that the suit itself is not maintainable under Section 75 of the Pondicherry Town and Country Planning Act as the relief that is sought for by the plaintiffs fell squarely within the jurisdiction of the authorities constituted under the Act, wherein the jurisdiction of the Civil Court was expressly barred. The 8/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 defendants also prayed to have the contents of the original written statement read as part and parcel of the additional written statement.
11. The Trial Court had framed the following issues:-
1. Whether the plaintiffs are the owners of house and its appurtenances bearing No.12 (Old No.17) Abiramiamman South Street of T.R.Pattinam which is more fully described in the schedule of property appended to this Plaint?
2. Whether the first defendant is the owner of western property of the plaintiffs and second defendant his close relative of first defendant was assisting the first defendant in the construction work on the western side of the plaintiff’s property?
3. Whether the construction made by the defendants in their property is very close to the western wall of plaintiff house and that too was made without provide 5 feet width space between the houses for effecting white washing and repairing of western wall of the plaintiffs? 9/19
https://www.mhc.tn.gov.in/judis SA.No.199 of 2007
4.Whether the eves water which was running south to north was not able to low freely and there by the eves water of the defendant house drenched the western wall of the plaintiff house and caused hazard to the inmates of the plaintiff’s house?
5.Whether the plaintiffs are stopped by conduct to file and maintain the suit?
6.Whether the defendant have constructed the eastern wall on their own land and the construction was in accordance with law, usage and custom of the locality?
7. Whether the prayer for mandatory injunction is not maintainable without the prayer for the declaration of plaintiff’s right?
8.Whether the value of suit property is Rs.3 lakhs and this Court has no pecuniary jurisdiction to entertain and try the suit?
9. To what other reliefs the parties are entitled to?
12. The 1st plaintiff had examined himself as P.W.1 and one 10/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 Sabapathy as P.W.2 and marked Ex.A.1 to A.11. On the side of the defendants, the 2nd defendant had examined himself as D.W.1 and the Member Secretary, Karaikal Planning Authority, Assistant Engineer PWD Karaikal, one Murugadoss and the Advocate Commissioner were examined as D.W.2 to D.W.5 respectively. The defendants had marked Ex.B.1 to B.14 in support of their case and the Advocate Commissioner’s Report and Plan were marked as Ex.C.1 and C.2.
13. On considering the pleadings, evidence and the arguments in detail the learned Principal District Judge has proceeded to dismiss the suit. Aggrieved by the said dismissal the plaintiff had filed A.S.No.60 of 2004 on the file of the the Additional District Judge, Pondicherry at Karaikal. The learned Additional District Judge by his judgement and decree dated 24.08.2006 was pleased to allow the appeal and set aside the judgement and decree of the Trial Court by granting the permanent injunction and mandatory injunction as sought for. It is aggrieved by this judgement and decree the defendants are before this Court.
14. The above Second Appeal was admitted on the following 11/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 Substantial Questions of law by this Court on 20.02.2007.
a) Whether it is compulsory to leave 5 feet side set back while constructing house under Pondicherry Buildings Bye-law and Zoning Regulation of 1972?
b) Whether the Civil Court will have jurisdiction to decide the issue in regard to the grant of permission for constructing the house under the Pondicherry Town and Country Planning Act?
c) Whether mandatory injunction is maintainable without praying for declaration of title to the property?
15.Mr.M.Krishnappan, learned Senior counsel for M/s.R.Swarnalatha appearing on behalf of the appellants/defendants would submit that the plaintiffs have based their entire case on Ex.A.2, Will dated 12.05.1975. However, a perusal of this Will would show that there is no description about the property which is the subject matter of the bequest and that being the case, the lower Appellate Court has erred in reversing the judgment and decree of the Trial Court holding that the plaintiffs have not proved their right to the suit schedule property. He would submit that the plaintiffs have 12/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 pressed into service Ex.A.1, a Will dated 23.07.1910 which according to them was the parent document. However, a reading of Ex.A.2 shows no reference to Ex.A.1 and therefore, the contention of the plaintiffs that Ex.A.1 is the anterior document to Ex.A.2 is absolutely false. De hors Ex.A.2, the plaintiffs have not filed any document to show their possession and enjoyment of the suit schedule property. In fact, Ex.A.4 which is a patta filed on the side of the plaintiffs does not even contain the Door Number or the street name and this being the case, the judgement and decree of the lower Appellate Court is totally erroneous.
16. As regards the contention of the plaintiffs that there is a mandatory requirement for setting aside 5 feet set back between the properties, he would submit that the plaintiffs have not produced any regulation to this effect. On the contrary the defendants had examined the Member Secretary of the Karaikal Planning Authority as D.W.2 who has deposed that the 2nd defendant had submitted Ex.B.12, application for approving his construction and the same has been found to be compliant with the regulation. The approval under Ex.B.13 dated 15.12.1998 was issued by the Planning Authority. In fact when Ex.B.12 was under 13/19
https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 consideration, the plaintiffs have submitted their objection which after due inquiry was rejected. The plaintiffs have not chosen to question the same. Therefore, in the light of the overwhelming evidence, the lower Appellate Court has erred in reversing the judgment and decree of the Trial Court. The learned Senior counsel further argued that despite serious objections regarding title of the plaintiffs to the suit schedule property, the plaintiffs had not deemed it fit to amend the prayer to include the relief of declaration which would squarely fall within the judgement of the Hon’ble Supreme Court reported in (2008) 4 SCC 594 - Anathula Sudhakar Vs. P.Buchi Reddy and Others.)
17. The learned counsel for the respondents/plaintiffs, on the other hand, would submit that the Appellate Court had clearly found that the relief which the plaintiffs are seeking does not in any manner touch upon the plaintiff’s title to their property. Therefore, the filing of the suit without seeking relief of declaration is not fatal to the plaintiffs. He would further rely upon the cross examination of D.W.3, wherein D.W.3 has submitted that there has a possibility of rain water stagnating between the walls which could be harmful to the building. He would submit that the lower Appellate 14/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 Court has rightly considered the admission of D.W.3, that if there is no space between the walls it would be impossible for the plaintiffs to maintain their wall. He would also rely upon the admission of D.W.2 that since T.R.Pattinam is a rural area, a 5 feet set back has to be left open between the construction of two houses. Therefore, he would urge this Court to confirm the judgment and decree of the lower Appellate Court.
18. Heard the learned counsels and perused the records.
19. As stated by the learned counsel for the defendants/appellants, the plaintiffs have come to Court stating that the suit property belongs to them by virtue of Ex.A.2, Will dated 12.05.1975. The description of the suit property has been set out earlier in Para.No.3 of this Judgement. The description of the property as set out in the Will does not contain the Door Number or the Survey Number so as to identify the property. The description of property also does not contain the measurements. However, in the suit schedule the plaintiffs have introduced the Door Number, the Survey Number, measurements etc. Therefore, the plaintiffs have not been able to prove his contention that under Ex.A.2, Will there is a mention that the 15/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 eastern and western wall of the house belongs to them absolutely. The document also does not talk about any passage between the wall and the neighbour’s property.
20. The plaintiffs would further submit that Ex.A.1 is the document under which the testatrix in Ex.A.2 traces her title to. However, a perusal of Ex.A.1 would show that it does not describe the property with Door Number, Survey Number, and measurement. Therefore, the plaintiffs claim to the 5 feet passage and the wall has not been proved by the plaintiffs. Further, under Ex.B.12, the defendants had submitted their application for approval of their construction. The plaintiffs who had submitted objection under Ex.B.14 has not challenged the rejection of their objection. The construction has been effected only with the approval of the Planning Authority which shows that the construction is as per the regulations.
21. Considering the fact that the objection given by the plaintiffs had been rejected and there was no appeal against the said rejection and thereafter the approval had been granted only goes to show that there is no mandatory requirements to leave 5 feet set back while constructing the 16/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 house under the Pondicherry Buildings Bye-law and Zoning Regulation of 1972. Therefore, the Substantial Question of law No.1 is answered against the plaintiffs. The Substantial question of law No.2 has not been urged by either side and therefore this Court is not called upon to give a finding with reference to the same.
22. When the plaintiffs' title was seriously disputed by the defendants and where documents filed on the side of the plaintiffs do not categorically prove their right over the same, the plaintiffs ought to have amended the suit to include the relief of declaration. The defense raised by the defendants with regard to the title of the plaintiffs is a substantial defence and therefore in the light of the judgment in Anthula Sudhakar case cited supra, the suit filed without seeking relief of declaration is also not maintainable. Therefore, the Substantial Question of law No.3 is also answered against the plaintiffs.
23. Consequently, the Second Appeal is allowed. The judgment and 17/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 decree of the lower Appellate Court, the Additional District Judge, Pondicherry at Karaikal in A.S.No.60 of 2004 is set aside and the judgment and decree of the Trial Court (The Principal District Munsif at Karaikal in O.S.No.150 of 199) stands confirmed. The construction have not been competed, therefore, the relief of permanent injunction becomes infructuous.
01.02.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
shr
To
1. The Additional District Judge, Pondicherry at Karaikal.
2. The Principal District Munsif at Karaikal.
P.T. ASHA, J, shr 18/19 https://www.mhc.tn.gov.in/judis SA.No.199 of 2007 SA.No.199 of 2007 01.02.2023 19/19 https://www.mhc.tn.gov.in/judis