Madras High Court
M.Balakrishnan vs P.Rajamani Nadar on 25 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.413 of 2000 M.Balakrishnan .. Appellant/Defendant Vs P.Rajamani Nadar .. Respondent/Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 01.11.1999 in A.S.No.102 of 1996 on the file of the learned Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai modifying the judgment and decree dated 29.02.1996 in O.S.No.593 of 1988 on the file of the learned Additional District Munsif, Pudukkottai. !For Appellant ... Mr.P.Senthurpandian for Mr.UM.Ravichandran ^For Respondent ... Mr.T.R.Rajaraman :JUDGMENT
This second appeal is focussed as against judgment and decree dated 01.11.1999 in A.S.No.102 of 1996 on the file of the learned Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai modifying the judgment and decree dated 29.02.1996 in O.S.No.593 of 1988 on the file of the learned Additional District Munsif, Pudukkottai.
2. Heard both sides.
3. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
4. Niggard and bereft of details, the case of the plaintiff as stood exposited from the records could be portrayed thus:
The plaintiff is owning his plot and his house there on by virtue of the sale deed dated 01.12.1973. After such purchase, the plaintiff removed the mud compound wall of 2 1/2 feet width, which situated on the northern edge of his property and he had put up a brick built wall of lesser width leaving a space of about one foot width to the north of the said wall in the plaintiff's plot, so as to enable him to repair his newly put up wall effectively and properly. While so, the defendant occupied the area to the north of his plot by virtue of he having purchased the property as per sale deed Ex.B1 dated 21.05.1986 executed by one Subramanian. Whereupon the defendant encroached upon the said one foot width of plaintiff's space, kept by him for his own use and he started raising construction by putting up a big wall with structure adjoining the said plaintiff's brick build wall and thereby encroached the plaintiff's north western area. He had also put up a septic tank adjoining the plaintiff's land and also raised the toilet, in such a manner that the window of the toilet is facing the plaintiff's land. Accordingly, he prayed for mandatory injunction so as to remove such encroachments in his property.
5. Gainsaying and denying, refuting and challenging the allegations and the claims of the plaintiff, the defendant filed the written statement; the gist and kernel of which would run thus:
The plaintiff is having no land at all muchless an extent of one foot to the north of the compound wall put up by him. The area to the north of the plaintiffs said wall belongs to the defendant. The structures raised by him are not in any way causing nuisance to the plaintiff and accordingly he prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues and during trial, the plaintiff examined himself as P.W.1 along with P.W.2 and Exs.A.1 to A.6 were marked on his side. The defendant examined himself as D.W.1 along with D.W.2 and Exs.B.1 and B.2 were marked on his side.
7. The trial Court ultimately rejected the claim of the plaintiff over the area situated to the north of his compound wall. However, the trial Court issued mandatory injunction for replacing the window of the latrine and also for the removal of the septic tank put up by the defendant, so as to ensure hygiene and the rest of the plaintiff's claim for demolition of the wall and the structure was dismissed.
8. Challenging the Judgment and decree of the trial Court, the plaintiff preferred the first appeal before the Additional District Judge cum Chief Judicial Magistrate, Pudukkottai, which Court reversed the Judgment and decree of the trial Court and granted mandatory injunction for demolition of the wall and the structure. However, the first appellate Court dismissed the claim of the plaintiff seeking closure of the window and the removal of the septic tank put up by the defendant.
9. Being aggrieved by and dissatisfied with the Judgment and decree of the first appellate Court, the defendant preferred this second appeal on the grounds interalia thus:
The first appellate Court wrongly understood as though the defendant had put up construction with the loft so as to cause inconvenience to the plaintiff. The first appellate Court failed to note that there was no encroachments made on any part of the plaintiff's land. The first appellate Court ought to have held that the plaintiff had no right to the north of his compound wall. The first appellate Court has not considered Ex.A1, the sale deed of the plaintiff, which refers to an extent of 20 feet from north to south on the western portion of his plot. Accordingly, the defendant prayed for setting aside the Judgment and decree of the first appellate Court.
10. Based on the above, the following substantial questions of law were framed by my learned Predecessor at the time of admitting this second appeal:
"(a) Whether the lower Appellate Court is right in granting the decree for mandatory injunction to remove the compound wall and the loft in spite of the fact that the plaintiff has not established by clinching evidence that the newly constructed compound wall and the loft would cause more inconvenience to him?
(b) Whether Court below is right in granting the decree to the plaintiff when he failed to establish that the defendant has encroached his land and put up the compound wall and the loft?
(c) Whether the Lower Court is right in granting the decree for mandatory injunction to remove the construction put up by the defendant beyond the compound wall of the plaintiff?"
11. The substantial questions of law are taken together for discussion as they are interlinked with each other.
12. Heard both sides.
13. The quintessence of the apple of discard between the contesting parties, is that the plaintiff would assert that he is having vacant area beyond his northern side compound wall, whereas the defendant would contend that beyond such compound wall, the plaintiff had no right as the area to the north of such compound wall of the plaintiff belongs to the defendant.
14. In this factual matrix, the scrutiny of the respective sale deeds of the plaintiff and the defendant should necessarily be undertaken with meticulousness. Ex.A1, the sale deed dated 01.12.1973 in favour of the plaintiff would say the least, is not free from doubt concerning the linear measurement of the property set out therein. In page No.5 of Ex.A1, there is an unauthorised and unauthenticated correction relating to the linear measurement from north to south direction of his plot area. It is mentioned as 20 European feet. The second digit '0" in the number '20' is found overwritten. In a registered sale deed, if there is correction there should be reference to it. However, relating to Survey Number, there was correction and that was authenticated by specifying so. But, relating to the said linear measurement of 20 European feet, there is no such authentication. Even as per the unauthenticated correction, the plaintiff is entitled to 20 feet extent of plot area from north to south direction on the western side and the northern boundary of his plot is specified as one that of Chindambaram Chettiar, the vendor of the defendant. There is no where in Ex.A1, it is found stated that there was any passage. But quite antithetical to the recitals in Ex.A1, the plaintiff would suggest during cross examination of D.W.1 as though the plaintiff has got right in a common passage which is situated to the north of the compound wall of the plaintiff. Giving a go-by to his plaint averments, the plaintiff would abruptly suggest as though there is common passage situated to the north of his said compound wall. The fact remains that in the plaint, he contended that he left some space to the north of his newly constructed compound wall for effecting repairs. There is no precise evidence to prove as to when he actually constructed the said compound wall. There is also no indication about the existence of mud wall of 2 1/2 feet width at the time of he having purchased the property under Ex.A1, during the year 1973.
15. P.W.1 in his evidence would barely depose that after such purchase vide sale deed Ex.A1, he removed the mud wall of 2 1/2 feet width and put up a brick built wall of smaller size leaving about one foot width to the north of his compound wall. This version of the plaintiff remains only his ipse dixit, Without being fortified or buttressed by any evidence muchless clinching evidence. There is nothing to show that in the said compound wall, he had any threshold or passage for entering into the alleged space, which he left towards north of the said newly constructed wall by him.
16. It is common knowledge that if an individual is having space beyond his compound wall, there would be some threshold or small gate so as to having ingress and egress to his vacant space beyond the compound wall. But in this case, he had no such passage of threshold in his compound wall.
17. The first appellate Court merely relying on one stray alleged admission of the defendant without any more discussion and without referring to Ex.A1, accepted the case of the plaintiff as though the plaintiff is having space to the north of his compound wall. The first appellate Court failed to take into consideration the deposition of D.W.1 in entirety. It is a trite proposition of law that from the deposition of a witness, one stray sentence should not be viewed in isolation. The entire deposition has to be read and the meaning has to be understood. An excerpt from the deposition of D.W.1 during cross examination is extracted here under for ready reference:
"thjpf;F mth; fpua ghj;jpag;go fPH;g[wk; bjd;tlypy; Buhil xl;o Kfg;gpy; 28 mo mfyk; mtUf;F ghj;jpak; vd;gija[k; mth; mij mDgtpf;f chpik cs;sth; vd;gija[k; mBjBghy; Bkw;F filapy; bjd;tlypy; 21 1/2 mo mtUf;F ghj;jpak; vd;gija[k; mth; mDgtpf;f chpik cs;sth; vd;gija[k; ehd; kWf;ftpy;iy. tlf;Bf jw;BghJ cs;s fhk;gt[z;Lr;Rth; KGtija[k; mtUf;F ghj;jpag;gl;lJ vd;gij ehd; xj;Jf;bfhs;fpBw;d. jw;BghJ cs;s fhk;gt[z;Lr;Rth; nUe;j nlj;jpy; 2 1/2 mo cauk; cs;s kz; fhk;gt[z;Lr;Rth; nUe;j tptuk; vdf;Fj; bjhpahJ. mij thjp noj;Jtpl;L jw;BghJ cs;s fhk;gt[z;Lr;Rth; fl;Lk;BghJ tlf;Bf xU mo nlk; tpl;L fl;odhh; vd;why; rhpay;y".
18. No doubt in the aforesaid extract, in one portion, D.W.1 would state that the plaintiff is entitled to 21 1/2 feet from south to north direction on the western side of the plaintiff's plot. But in reality the plaintiff's sale deed Ex.A1, as already highlighted supra refers to only 20 feet. The learned counsel for the defendant would convincingly and appropriately argue that the plaintiff cannot pick holes in the case of the defendant and rely upon an isolated sentence in the deposition of the D.W.1, to claim that the plaintiff is entitled to 21 1/2 feet, when the plaintiff's sale deed itself refers to only 20 feet. As has been already highlighted supra, the deposition of the defendant should be taken as a whole. In the same excerpt extracted supra, D.W.1 clearly and categorically deposed that the plaintiff is having no area to the north of his compound wall. When that be the case, I am at a loss to understand how the first appellate Court could decide the entire issue based on such one stray sentence found in the above extract.
19. In the Advocate/Commissioner's Report and Sketch Exs.C1 and C2, there is no reference to the actual extent of the plaintiff's plot from north to south available on ground, measuring from south western corner of his plot to the north western corner of his existing compound wall. Paragraph No.6 of the Advocate/Commissioner's Report is extracted here under for ready reference:
"jhth nlj;ij ru;BtaUld; mse;jjpy; uh$hkzpapd; nlk; fhk;gt[z;l; Rtw;wpd; bgz;l; nUf;Fk; nlj;jpy; 9 mA;Fyk; cs;Bs js;sp ghyhfpU&;zdpd; nUf;Fk; nlj;jpy; nUf;fpd;wJ vd;Wk;, me;j bgz;oy; nUe;J Bkw;Bf bfhq;rk;, bfhq;rkhf Fiwe;J filrpaha; 4 mA;Fyk; nlk; fhk;gt[z;l; Rtw;iw jhz;o uh$hkzpf;F nlk; nUf;fpd;wd. mBj Bghy; fhk;gt[z;od; fpHf;F tpspk;gpy; nUe;J 38 1/2 mo bgz;l; tiu rupahf cs;sJ".
20. It is therefore clear that he did not measure the property with reference to Ex.A1. The plaintiff whose burden to prove the case, has not chosen to get appropriate direction from the trial Court to get the properties of both sides measured in accordance with their respective sale deeds. It is not readily known on what basis the Advocate/Commissioner and the Surveyor arrived at the conclusion that an extent of 9 inches width on the northern side of the said compound wall, starting after 38 1/2 feet from the eastern edge of the compound wall and tapering towards the western edge and ending with 4 inches width.
21. The learned counsel for the plaintiff by placing reliance on the F.M.P. extract, Ex.A5 would develop his arguments to the effect that the plaintiff is entitled to 21 1/2 feet from north to south direction on the western side of his plot. But there is no plausible explanation as to how the plaintiff is entitled to 21 1/2 feet quite contrary to the extent of 20 feet contemplated in the sale deed.
22. It is a trite proposition of law that the revenue records cannot be taken as conclusive proof of title. A mere comparison of Ex.B2, F.M.B. extract relating to the defendant's property situated in T.S.No.2900, does not fit in with the description as found in Ex.A5, the F.M.B. extract. In Ex.B2, T.S.No.2900 is shown as having almost broad 'v' shaped land, whereas in Ex.A5, the demarcating line between T.S.Nos.2900 and 2901 is shown as almost a straight line. As such revenue records and maps should not be the sole criterion for adjudicating the title to the suit property. In this connection, the decision of this Court in M.E.A.Mohamed Ali and others v. The District Revenue Officer reported in 2005 (4) CTC 9 could fruitfully be referred to. An excerpt from it, would run thus:
"2. The dispute relates to entries in the revenue records. It is well settled that entries in the revenue records does not create or extinguish title nor has it any presumptive value vide M.T.W.Tenzing Namgyal & Ors. v. Motilal Lakhotia & Ors., 2003 (5) SCC 1 : JT 2003 (5) SC 173; Balwant Singh v. Daulat Singh, 1997 (7) SCC 137; and Smt.Sawarni v. Smt.Inder Kaur and others, 1996 (6) SCC 223 : 1996 (7) JT SC 580. Such entries are only for the purpose of payment of land revenue. Hence the parties aggrieved by such entries in the revenue records should get their rights adjudicated in a civil suit. Ordinarily writ petitions should not be entertained against orders for making entries in the revenue records, as such orders do not affect the rights of any one.
3. We make it clear that the impugned judgment of the learned single Judge does not create any right in favour of the parties in that case. We further make it clear that the order of the revenue authorities is not binding in the civil suit, and the Civil Court will decide the rights of the parties independently of the order of the revenue authority."
23. It is therefore clear that the plaintiff cannot simply rely on the F.M.B. extract or Ex.A6, the settlement extract to prove his title to the land to the north of his said compound wall. The first appellate Court without considering all these legal implications jumped to the conclusion that the plaintiff has got land as per the Advocate/Commissioner's Report to the north of the suit property.
24. The first appellate Court fell into error in understanding as though there was a loft constructed by the defendant, which would be a source for causing the rain water to flow into the plaintiff's land. D.W.1, by way of dispelling such apprehension in the mind of the plaintiff, clearly in his deposition stated thus:
"ehd; fpHBkypy; thjpapd; tlf;F Rw;Wr;Rtiu xl;o ehd; fl;oa Rth; jhd; g{h;j;jp Mfhky; cs;sJ. mjd; fpHBky; ePsk; 27 mo. cauk; 19 1/2 mo tiu cs;s ePsj;jpw;F 7 1/2 cauKk; 7 1/2 mo ePsj;jpw;F 6 1/2 cauKk; fl;oa[s;Bsd;. mjd;Bky; 2 1/2 mo ePsj;jpw;F yhg;l; Bghl;Ls;Bsd;. mJ thjp tPl;il Behf;fp cs;sJ. mij jw;BghJ cs;s jhh;R tPl;Lld; Brh;j;J xl;lg;BghfpBwd;. ne;j gFjpapy; ehd; Kjy; tprhuizapy; brhd;dgo thjp fhk;gt[z;oypUe;J 4 Kjy; 6 mA;Fsk; nilbtsp tpltpy;iy vd;why; rhpay;y"
25. The above extract would clearly demonstrate that the alleged loft which was under construction was not projecting over the plaintiff's land and in fact the defendant intended to enclose his area and I make it clear that the defendant is entitled to continue this construction in such a way not to make the rain water to flow into the plaintiff's plot from his construction or any part of his building.
26. The plaintiff has miserably failed to discharge the burden of proof cast upon him and it is quite obvious from the above discussion that the first appellate Court failed to consider all these aspects. Accordingly, the Judgment and decree of the first appellate Court against the defendant on this aspect is liable to be set aside.
27. The first appellate Court however once again fell into error in giving a finding as though the plaintiff is not entitled to get the window of the latrine constructed by the defendant replaced and also for the removal of the septic tank put up by the defendant. The trial Court correctly gave a finding that maintaining a window of the latrine facing the plaintiff's property would cause nuisance to the plaintiff. By no stretch of imagination it could be held that the defendant is having unrestricted right to have a window of his latrine facing the plaintiff's property and it is quite obvious and no more elaboration in this regard is required. The trial Court correctly observed that the window has to be replaced by the defendant in such a manner that it is not causing hindrance or nuisance to the plaintiff. Hence, I would make it clear that the window of the latrine put up by the defendant should be replaced in such a manner that it is not facing the plaintiff's property. The defendant also was not justified in putting up septic tank very near to plaintiff's wall as correctly observed by the trial Court.
28. The learned counsel for the defendant would submit that in fact there is no septic tank at all; if that be the position, then the injunction granted by the trial Court on that aspect would not in any way prejudice the defendant. It is common knowledge that the latrine and septic tank should be constructed in one's land in such a way not to be a source of nuisance to the neighbour and that principle is squarely applicable in this case also as against the defendant. Hence, in all aspects, the trial Court Judgment and decree is convincing and it should be restored and the first appellate Judgment should be set aside in toto and accordingly, the substantial questions of law are answered.
29. With the above observations, this Second Appeal is disposed of. However, in the facts and circumstances of the case, there is no order as to costs.
smn To
1. The Additional District Judge-cum-
Chief Judicial Magistrate, Pudukkottai.
2. The Additional District Munsif, Pudukkottai