Madras High Court
Palaniammal vs Pechimuthu And Ors. on 12 October, 1990
Equivalent citations: (1991)31MLJ1
JUDGMENT Srinivasan, J.
1. The main question of law that is argued by learned Counsel for the appellant is that the plaintiffs have to fail as they have not prayed, for declaration of title or recovery of possession as, according to learned Counsel for the appellant, it is admitted in the plaint that the defendant had already encroached on the suit property.
2. The prayer in the plaint was for grant of an injunction restraining the defendant from interfering with plaintiffs' possession and fore mandatory injunction for removal of the construction already made by the defendant and marked as A.B. in the plan attached id the plaint. It is contended by learned Counsel for the appellant that in paragraph 6 of the plaint, it is admitted that the defendant had already trespassed on the suit property. The following sentence is relied upon by the learned Counsel:
6. The space claimed by the defendant is marked as A.C. on the south and CD. on the west. In spite of all the above fact the defendant has started construction on 25.5.1977 and in fact has already encroached on the portion marked A.B. in the plan by putting up a construction and is continuing in her nefarious act in spite of plaintiffs protest.
Learned Counsel submits that the aforesaid averment would constitute an admission on the part of the plaintiffs that the defendant has trespassed upon the suit properly and without a prayer for declaration of title and recovery of possession, the suit forbare injunction and mandatory injunction is not maintainable.
3. I do not agree with this contention. The sentence referred to above should not be torn away from the context and read independently of the rest of the plaint. The entire plaint must be read for understanding the aforesaid sentence. It is slated in the plaint clearly that the plaintiffs were in uninterrupted possession and enjoyment of the suit property from 1946, the date of the purchase by Marudayiammal, the mother of the plaintiffs. These is, reference thereafter to the defendant giving trouble to the plaintiffs since 1974 when she purchased her property. Then, it is mentioned in the plaint that the plaintiffs preferred a police complaint against the defendant and after enquiry, the defendant was warned not to put up any construction in the plaintiffs property, and an undertaking was also taken from the defendant to that effect At that stage, the plaint refers to the putting up of construction by the defendant on 25.5.1977. It is stated that the defendant started the construction on that day and in spite of protest by the plaintiffs, the defendant went on constructing. The suit was filed on 13.6.1977 and an order of interim injunction was obtained by the plaintiffs immediately. The order was served on the defendant on 15.6.1977. In spite of the order, the defendant proceeded with the construction and completed the same. In the cause of action paragraph it is stated by the plaintiffs that the cause of action arose on 25.5.1977 when the defendant began construction, and on 14.6.1977 when the defendant violated the ordcr of interim injunction made by the court and encroached upon the plaintiffs' properly. Thus the prayer in the plaint for injunction and mandatory injunction should be read along with the other averments made in the plaint. If the entire plaint is read, it is clear that the plaintiffs have rushed to the court as soon as the defendant started construction. It is not as if the defendant encroached upon the property and squatted on the same for some time, and thereafter began to construct thereon. The encroachment it self was by commencement of the construction on the disputed property. Hence, there is no necessity for the plaintiffs to seek a declaration of their title or recovery of possession. If the impugned construction is removed, the plaintiffs will be certainly in possession as the property is adjacent to their admitted property and it is really part of the same. The courts below have taken the correct view on a reading of the plaint and held that there is no necessity to pray for any declaration or recovery of possession. Hence this contention of learned Counsel for the appellant fails.
4. The next contention urged by learned Counsel for the appellant is that the burden is on the plaintiffs to prove clearly their title and in this case, the plaintiffs have failed to establish their title. The documents on which reliance is placed by the plaintiffs are Exs. A1 and A2 of the years 1946 and 1966 respectively. According to learned Counsel for the appellant, there is no correlation between the suit property and the property which was the subject matter of Exs. A1 and A2. There is no basis for this submission. A Commissioner has inspected the property and submitted a report. The Courts below have considered the report of the Commissioner as well as the evidence on record and found that the plaintiffs have proved their title. The Courts below have discussed in detail all the evidence on record, documentary as well as oral, and given a finding of fact that the title of the plaintiffs has been established in this case. In fact the trial court refers to the admission that the first item of the plaint schedule property is the property purchased under Ex. A. 1 and the second item of the plaint schedule property is the property purchased under Ex. A. 2. That statement found in the judgment of the trial Court has not been challenged cither in the lower appellate court or in this Court. Hence it is not open to the appellant to contend that the suit property has not been correlated with the properties, which were subject matter of Exs. A. 1 and A. 2.
5. It is also found by the courts below that the documents produced by the defendant do not establish the claim of the defendant to the disputed property. It is found unequivocally that the defendant is entitled only to an extent of 31 feet north south and 191/2 feet east to west and she is not entitled to claim anything more than that at all. I do not find any justification whatever to interfere with the concurrent findings of fact which are based upon acceptable evidence on record.
6. Learned Counsel places reliance on the judgment of Nainar Sundaram, J., in Srinivasa Pillai v. Ragunathan (1983) 1 M.L.J. 159. It was held that a person in peaceful possession is entitled to be maintained in possession against all but the true owner and the suit by such a person for an injunction against any other person threatening to dispossess him is maintainable and there could be an investigation of his cause and relief could be granted to him, if there is a warrant for it on facts. That judgment has no relevance to the present case. In this case, it has been found on facts that the plaintiffs have title and the defendant has no title to the disputed property.
7. Learned Counsel then contended that the disputed property is situated in between the properly of the plaintiffs and the property of the defendant, and there is a presumption in law that the space which is between the two properties is common property belonging to both the parties. In support of this proposition, learned Counsel places reliance on the judgment of the Bombay High Court in Secretary of State v. Lakshmi Shanker A.I.R. 1925 Bom. 27. In that case before the Bombay High Court, the plaintiffs were the owners of a house situated in the street behind the post office in the town of Borsad. In front of their house, there was an ota which has been there for a considerable time on which the plaintiffs used to stack firewood and keep cots, quilts and benches. When survey was made in 1961, it was decided by the Enquiry Officer that the land on which the plaintiffs' ota stood was part of a street. The plaintiffs' appealed to the Assistant Collector against the decision of the enquiry officer. The appeals were rejected and consequently the plaintiffs filed the suit praying for declaration that the land was in their possession and for a permanent injunction restraining the defendants, the municipality of Borsad and the Secretary of State for India in Council, from dispossessing the plaintiffs of the said land. The suit was decreed by the District Judge on the ground that the plaintiffs had proved that they were the owners of the land in dispute although they had not proved that they became owners by adverse possession for over the statutory period. It was found as a fact that the defendants did not prove their title to the land, though it was asserted by the defendants that it was part of street. In those circumstances, the Court held that the fact that the plaintiffs were in possession of the land for a long time and in the absence of the defendants establishing their title to the property, there was a presumption that the land which was situated adjacent to the plaintiffs' house belonged to the plaintiffs. In that context the following observation was made by the Division Bench of the Bombay High Court:
Until the contrary is proved, it may generally be presumed, that the open space in a pole belonged to the owners of the surrounding houses, and it would be for the owners or the other houses to protest against any obstruction caused by the owner of one house against their common rights.
The language used by the Bench itself shows that the proposition was intended to be confined to the facts and circumstances of the case. That would apply only to a situation where a public body claims a property which is situated adjacent to a private property and enjoyed by the private owner. It would not apply to a case where there is a dispute between two adjacent owners. Particularly in this case when the plaintiffs have established their title by producing documents of title and defendants have failed to prove title to the disputed property, it cannot be said that there is any presumption that the space in between the plaintiffs' and defendants' property is owned in common. I am of the view that there is no such presumption in law, and even if there is such a presumpt ion, that has been clearly rebutted in this case by the evidence on record.
8. The next contention urged by learned Counsel for the appellant is that the Commissioner who inspected the property and submitted his report was not examined and the courts below were in error in relying upon the report of the Commissioner. No such objection was raised before the lower appellate court or in the memorandum of grounds of appeal before me. In fact, the objection has no relevance whatever to the facts of the case. On the facts, it is found that the property is owned by the plaintiffs and they have proved their title thereto. Nothing turns upon the non-examination of the Commissioner. It is not as if, the courts below have placed reliance only on the report of the Commissioner and given a finding in favour of the plaintiffs.
9. Hence the contentions urged by learned Counsel for the appellant fail and the second appeal is dismissed with costs.