Madras High Court
A/M Kothandaramasamy Koil vs Vairam on 3 January, 2012
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/01/2012
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
SA(MD)No.15 of 2008
A/M Kothandaramasamy Koil
Thrupuvanam, rep. by its
Managing Trustee Jayaprakash
.. Appellant/1st Respondent/Plaintiff
Vs.
1.Vairam
2.Somasundaram
3.Kunchithapadam
.. Respondents/Appellants 1, 2 & 4/
Defendants 1, 2 & 4
4.The Tahsildar
Kumbakonam, having its
office at Dr.Moorthy Street
Kumbakonam.
5.The District Collector
District Collectorate Buildings
Thanjavur.
6.The Hon'ble Member of Parliament
Myladuthurai Constituency
Myladuthurai. .. Respondents 2 to 4/
Appellants 2 to 4/
Defendants 5 to 7
Second Appeal filed under Section 100 of CPC against the Judgment and
decree dated 09.08.2007 passed in Appeal Suit No.41 of 2006 by the Principal Sub
Court, Kumbakonam reversing the Judgment and decree dated 15.11.2005 passed in
Original Suit No.4 of 2004 by the Principal District Munsif Court, Valangaiman
at Kumbakonam.
!For Appellant ... Mr.T.Srinivasa Raghavan
^For RR - 1 to 3 ... Mrs.N.Krishnaveni
for Mrs.AL.Gandhimathi
For RR - 4 and 5 ... Mr.S.Kumar
Addl.Govt.Pleader
For R - 6 ... No appearance
:JUDGMENT
The Judgment and decree dated 09.08.2007 passed in Appeal Suit No.41 of 2006 by the Principal Sub Court, Kumbakonam are being challenged in the present Second Appeal.
2. The appellant herein as plaintiff has instituted Original Suit No.4 of 2004 on the file of the Principal District Munsif Court, Valangaiman at Kumbakonam for the relief of mandatory injunction, wherein the present respondents have been shown as defendants.
3. The trial Court after considering the rival evidence adduced on either side has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants 1 to 4 as appellants have preferred Appeal Suit No.41 of 2006 on the file of the first appellate Court.
4. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed Appeal Suit No.41 of 2006 and thereby set aside the Judgment and decree passed by the trial Court in Original Suit No.4 of 2004. Against the Judgment and decree passed by the first appellate Court, this Second Appeal has been preferred at the instance of the plaintiff as appellant.
5. At the time of admitting the present Second Appeal, the following substantial questions of law have been formulated for consideration:
(i) Whether the lower appellate Court is right in rejecting the plea of the legal bar under section 48 of the Trust Act to the facts of the case?
(ii) Whether the lower appellate Court is right in rejecting the plea of section 108(p) of the Transfer of Property Act to the facts of the case?"
6. Before analysing the rival submissions made on either side, it would be more useful to look into the nature of averments made in the plaint as well as in the written statement. In the plaint it has been specifically pleaded that the suit properties are situate in Survey Nos.2/4, 3/2, 4/3. The defendants 1 to 4 without prior permission of the plaintiff have put up construction and therefore the alleged construction should be removed by means of mandatory injunction.
7. In the written statement it has been stated that at the time of construction, the plaintiff has not raised any objection. Therefore the plaintiff has acquiesced the alleged construction put up by the defendants 1 to 4 and further the description of properties is totally erroneous and altogether the present suit deserves to be dismissed.
8. As stated earlier, the trial Court has decreed the suit as prayed for. But the first appellate Court has dismissed the suit.
9. The learned counsel appearing for the appellant has repeatedly contended that the plaintiff is the absolute owner of the suit properties. The defendants 1 to 4 are nothing but tenants of the plaintiff and they stealthily put up the alleged construction. Under the said circumstances, the present suit has been instituted for the relief of mandatory injunction and the trial Court has rightly decreed the suit as prayed for. But the first appellate Court without considering the nature of ownership of the suit properties and also alleged construction put up by the defendants 1 to 4, has erroneously dismissed the suit and therefore, the Judgment and decree passed by the first appellate Court are liable to be set aside.
10. In order to controvert the argument advanced on the side of the appellant, the learned counsel appearing for the respondents 1 to 3 has also equally contended that only with the knowledge and also permission of the plaintiff, the alleged construction has been put up and therefore, the plaintiff is barred by way of acquiescence from questioning construction and further the description of suit properties is not proper and the trial Court without considering the nature of infirmities which are in existence on the side of the plaintiff, has erroneously decreed the suit. But the first appellate Court after perpending the nature of defects pointed out on the side of the defendants has rightly dismissed the suit and therefore, the Judgment and decree passed by the first appellate Court do not warrant interference.
11. It is an admitted fact that Original Suit No.4 of 2004 has been instituted for the relief of mandatory injunction. The sum and substance of the relief sought for in the present suit is to remove the construction alleged to have been put up by the defendants 1 to 4 by way of passing mandatory injunction.
12. A mere glance of the description of suit properties mentioned in the plaint would go to show that in the property description three survey numbers admeasuring 5 acre 64 cents have been shown as suit properties. No where in the plaint it has been specifically stated about the breadth and length of alleged construction and also about survey numbers, in which the alleged construction is in existence. Therefore, it is quite clear that except survey numbers and its extent, no proper description has been given with regard to identity of the construction alleged to have been put up by the defendants 1 to 4.
13. At this juncture, it would be condign to look into the provision of Order 7 Rule 3 of the Code of Civil Procedure, 1908 and also the provision of section 39 of the Specific Relief Act, 1963.
14. Order 7 Rule 3 of the Code of Civil Procedure, 1908 reads as follows:
Where the subject-matter of the suit is immovable property.-Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
15. Section 39 of the Specific Relief Act, 1963 reads as follows:
"Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
16. From the conjoint reading of the said provisions of law, it is made clear that if a suit has been instituted in respect of an immovable property, concerned plaint should contain proper description of the suit property so as to identify the same and further relief of mandatory injunction can be granted in respect of a property, in case the same can be enforced through Court of law.
17. The present suit has been instituted for the relief of mandatory injunction so as to remove the construction alleged to have been put up by the defendants 1 to 4. It has already been animadverted to that except three survey numbers and its extent, the plaint does not contain the breadth and length of the alleged construction or survey numbers, in which the alleged construction is situate. Therefore, the plaint is completely lacking proper description of the suit properties so as to identify the same.
18. As per order 7 Rule 3 of the Code of Civil Procedure, 1908 if a suit has been instituted in respect of an immovable property the concerned plaint should contain necessary description so as to identify the same and further as per section 39 of the Specific Relief Act, 1963 a decree of mandatory injunction should be granted only when the same is capable of being executed. In the instant case, as stated in many places, no proper description has been given with regard to the alleged construction. To put it in short, in the present case only the alleged construction is the suit property. But in the plaint, it has been simply mentioned three survey numbers and its total extent, without mentioning the construction alleged to have been put up by the defendants 1 to
4. Therefore, it is easily discernible that the plaint filed in Original Suit No.4 of 2004 does not contain proper description of suit property as contemplated under Order 7 Rule 3 of the Code of Civil Procedure, 1908. By way of eschewing the defects which are in existence in the plaint, even if a decree of mandatory injunction is granted in favour of the appellant/plaintiff, the same cannot be executed nor enforced as contemplated under section 39 of the Specific Relief Act, 1963. Therefore, it is quite clear that the plaint filed in Original Suit No.4 of 2004 is defective.
19. It is an admitted fact that the present suit has been instituted for the relief of mandatory injunction. The specific case of the plaintiff is that the plaintiff is the owner of the suit properties, wherein the defendants 1 to 4 are enjoying the same as tenants. The defendants 1 to 4 have put up unauthorised construction. The main defence taken on the side of the defendants 1 to 4 is that only with the consent of the plaintiff the alleged construction has been put up and thereby the plaintiff is barred to raise its objection by way of acquiescence.
20. Apart from the contentions put forth on the side of the plaintiff as well as defence put forth on the side of the defendants 1 to 4, this Court is of the view that instead of dismissing the present suit, an opportunity can be given to the appellant/plaintiff so as to set right the plaint for the purpose of suiting the nature of the relief sought for therein. Since this Court is of the view that an opportunity can be given to the appellant/plaintiff for the purpose of amending the plaint suitably, the Judgments and decrees passed by the Court below are liable to be set aside and the suit is liable to be remitted to the file of the trial Court. Since the suit is liable to be remitted to the file of the trial Court, the substantial questions of law formulated in the present Second Appeal need not be decided.
21. In fine, this second appeal is allowed without cost and the Judgments and decrees passed by the Courts below are set aside and Original Suit No.4 of 2004 is remitted to the file of the trial Court. In the trial Court, the appellant/plaintiff is directed to file necessary petition so as to amend the plaint suitably. The contesting defendants are entitled to file additional written statement if any. Both parties are entitled to adduce additional evidence. The trial Court is directed to dispose of Original Suit No.4 of 2004 before the end of March 2012 and report the same to the Registry without fail. The Registry is strictly directed to send all records forthwith. The Court fee paid on the appeal memorandum is ordered to be refunded to the appellant.
mj To
1.The Principal Sub Court, Kumbakonam
2.The Principal District Munsif Court, Valangaiman at Kumbakonam