Madras High Court
R.M.Kannan vs Gnanammal on 19 December, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.12.2014 CORAM THE HON'BLE MS.JUSTICE V.M.VELUMANI S.A.No.911 of 2003 & Cross Objection No.58 of 2003 R.M.Kannan ... Appellant in S.A.No.911/2003 & Respondent in Cross Objection No.58 of 2003 Vs. 1.Gnanammal 2.Muthiah 3.Rajendran 4.Selvaraj ... Respondents in S.A.No.911/2013 & Cross Objectors in Cross Objection No.58 of 2003 Second Appeal and Cross Objection have been filed against the judgment and decree dated 28.06.1999, made in A.S.No.157 of 1997 on the file of I Additional District Judge-cum-Chief Judicial Magistrate Court, Trichy, modifying the judgment and Decree, dated 21.01.1997 made in O.S.No.644 of 1987 on the file of I Additional District Munsif Court, Trichy. !For Appellant in the : No Appearance S.A. & respondent in the Cross Objection ^For Respondents in the S.A. and Cross Objectors in the Cross Objection : Mr.R.Devaraj Date of reserving the Judgment : 18.09.2014 Date of pronouncing the Judgment : 19.12.2014 :COMMON JUDGMENT
This Second Appeal and Cross Objection have been filed against the judgment and decree dated 28.06.1999, made in A.S.No.157 of 1997 on the file of I Additional District Judge-cum-Chief Judicial Magistrate Court, Trichy, modifying the judgment and decree, dated 21.01.1997, made in O.S.No.644 of 1987 on the file of I Additional District Munsif Court, Trichy.
2. The appellant is the plaintiff and the respondents are the defendants in the suit in O.S.No.644 of 1987 on the file of I Additional District Munsif Court, Trichy. The suit filed by the appellant was dismissed in respect of the claim of mandatory injunction and permanent injunction by the trial Court and decree of specific performance was granted. Aggrieved over the same, the appellant has filed the first appeal in A.S.No.157 of 1997. The first appeal in A.S.No.157 of 1997 was allowed by the first appellate Court, confirming the decree of specific performance and modifying the decree of trial Court and granted decrees of mandatory and permanent injunction as prayed for by the appellant.
3. According to the appellant, the decree of specific performance granted by both the Courts below do not relate to the suit property and he is aggrieved by the judgment and decree of the Courts below. The appellant on misconception that the relief claimed by him had been rejected has filed the second appeal.
4. Aggrieved by the judgment and decree of the first appellate Court, granting mandatory and permanent injunction, the respondents have filed the Cross Objection.
5. The case of the appellant:
(i) The appellant is the owner of the house and premises bearing Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. He purchased the said property from one Suseila under registered sale deed, dated 13.03.1985. The said Suseila purchased the property from one Netto under registered sale deed, dated 16.06.1984. The said Netto had filed O.S.No.888 of 1977 on the file of District Munsif Court, Trichy, for mandatory and permanent injunction against the respondents, alleging that the respondents trespassed into his property bearing Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy and encroached the same.
(ii) The appellant was negotiating to purchase the property in Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. In order to have cordial relationship with the respondents, who are his neighbours, the appellant even before purchase of the property in Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy, from Suseila entered into an agreement of sale, dated 12.02.1985, with the respondents and one S.Anthoniraj (now deceased) for purchasing an area of 37 feet north to south and 2 feet east to west on the eastern side wall of property in Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. After the death of the said Anthoniraj, the respondents are liable to execute the sale deed. As per the agreement, the property agreed to be sold was handed over to the appellant. There was a mud drainage in the property sought to be sold. As a person in possession of the property in Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy, he had constructed cement drainage in the place of mud drainage.
(iii) There was a 6 feet wooden gate on the eastern side of the property belonging to the appellant. The scavengers used to come through the said gate and clean the drainage and dry latrine. Now, the said dry latrine was replaced by flush out latrine. The respondents removed the wooden gate and constructed a wall. The appellant issued a notice, dated 16.01.1987, calling upon the respondents to execute the sale deed, as he had paid the entire sale consideration of Rs.4,000/-. The respondents sent a reply, dated 29.01.1987 containing baseless allegations, even though they have admitted the execution of agreement of sale and the removal of wooden gate. The appellant sent a re-joinder, dated 09.02.1987.
(iv) Since the respondents failed to execute the sale deed as per the agreement of sale and has not removed the wall constructed, the appellant had filed the suit praying for a decree of specific performance in respect of property described in the schedule to the plaint, mandatory injunction to remove the wall put up by the respondents and permanent injunction restraining the respondents from interfering with his right to use the said property.
6. The fourth respondent filed written statement, which was adopted by the other respondents. According to the respondents, they did not agree to sell the suit property to the appellant. The predecessor in title of the appellant had encroached the property of the respondents by 2 feet x 37 feet and put up a superstructure including the encroached portion. The respondents and Anthoniraj did not agree to sell 2 feet x 37 feet from the eastern side of the appellant's property. The respondents denied existence of mud drainage and the right of the way through their property. The parties agreed to close the way on the eastern side of the wall of the appellant. The respondents have insisted on closure of the way. Hence, the appellant had filed the suit.
7. The second respondent filed additional written statement and the same was adopted by the other respondents. In the additional written statement, the respondents have stated that the appellant is already in possession of the property agreed to be sold and denied that the appellant is in possession of the suit property. The property agreed to be sold and the suit property are not one and the same. The property described in the schedule to the plaint is on the eastern side of the property bearing Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. On the other hand, the property agreed to be sold is on the western side of eastern wall of the property referred to above. The appellant is not entitled to mandatory injunction.
8. Based on these pleadings, the learned I Additional District Munsif, Trichy, framed necessary issues.
9. The appellant was examined as PW1 and Exs.A1 to A9 were marked. The second respondent was examined as DW1 and Ex.B1 was marked.
10. The learned I Additional District Munsif, Trichy, considered the materials on record and based on the evidence and admission of the second respondent as DW1 that the respondents are ready to execute the sale deed as per agreement of sale, decreed the suit for specific performance as per Agreement of Sale Ex.A4, and dismissed the suit in respect of other reliefs i.e., mandatory injunction and permanent injunction.
11. The appellant filed A.S.No.157 of 1997 against the judgment and decree, dated 21.01.1997.
12. The learned I Additional District Judge-cum-Chief Judicial Magistrate, Trichy, framed points for consideration and considering the pleadings and evidence allowed the appeal confirming the judgment and decree of the trial Court in respect of relief of specific performance and modified the decree in respect of mandatory and permanent injunction. The learned I Additional District Judge-cum-Chief Judicial Magistrate, Trichy, granted decree of mandatory and permanent injunction as prayed for in addition to decree of specific performance.
13. Aggrieved over the same, the respondents have filed the Cross Objection.
14. On misconception, the appellant has filed the present second appeal on the following grounds:-
a) The Courts below erred in granting decree of specific performance in respect of the property other than the property described in the schedule to the plaint. The appellant has clearly described the property in respect of which, he sought specific performance. He has substantiated his claim by cogent evidence. The Courts below wrongly interpreting the agreement of sale-Ex.A4, granted decree of specific performance in respect of different property. On the other hand, the appellant is entitled to a decree of specific performance in respect of the suit property.
b) The appellant has constructed cement drainage in the place of mud drainage in the property measuring 6 feet east of his eastern wall. The sewerage water both from the appellant's and the respondents' house flow into it. There was a wooden gate on the eastern side of eastern wall of the appellant. The appellant has right to utilise the said portion. The respondents have removed the wooden gate illegally and constructed the wall.
The appellant is entitled to a decree of mandatory injunction directing the respondents to remove the said wall and restraining them from interfering with his right to utilise the said portion of the land.
15. At the time of admission of the second appeal, this Court framed the following substantial question of law:-
"Whether the judgments and decrees of the Courts below are sustainable in law, as the entire evidence which are relevant to decide the issue and the relevant provision of law applicable to the facts of the case were not taken into consideration."
16. When the matter was taken up for hearing on 11.09.2014, the learned counsel for appellant represented that he has handed over the bundle to the appellant. Therefore, this Court directed the Registry to print the name of the appellant and list the matter on 12.09.2014. When the matter was taken up for hearing on 12.09.2014, there was no representation for the appellant and therefore, the matter was directed to be listed on 17.09.2014 under the caption for dismissal. Again, when the matter was taken up for hearing on 18.09.2014, there was no representation on behalf of the appellant.
17. Heard the learned counsel for the respondents/cross objectors.
18. The learned counsel for the respondents/cross objectors argued that the Courts below erred in granting the relief of specific performance, as the suit property is not the property agreed to be sold, is the property already encroached by the predecessor-in-title of the appellant. After encroaching the property of the respondents, he had put up superstructure. The property agreed to be sold is on the western side of eastern wall of property bearing Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. The property described in the schedule to the plaint is on the eastern side of eastern wall of the property bearing Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. The appellant himself admits that he has sought for relief of specific performance of the property described in the plaint schedule only. Hence, both the Courts below erred in granting decree of specific performance in respect of different properties, which lies on the western side of eastern wall of the property. The first appellate Court erred in granting the decree of mandatory injunction and permanent injunction. The property in question belongs to the respondents, which is situated on the eastern side of the eastern wall of the property belonging to the appellant. The appellant has no right to enter into the said portion of land. The appellant had not proved his claim to utilise the portion in question. The first appellate Court erred in reversing the well considered judgment and decree of the trial Court, rejecting the relief of mandatory and permanent injunction. The reason given by the first appellant Court is erroneous and contrary to the facts.
19. I have carefully considered the pleadings, evidence, the judgment and decree of the Courts below, grounds of appeal, grounds of cross objection and the arguments of the learned counsel for the respondents/cross objectors.
20. The appellant has filed O.S.No.644 of 1987 for the relief of specific performance of agreement of sale, dated 12.02.1985, marked as Ex.A4, mandatory injunction, directing the respondents to remove the wall constructed by them and for permanent injunction.
21. In respect of the relief of specific performance, the appellant had pleaded that the respondents and one Anthoniraj agreed to sell the suit property, namely, 37 feet north to south and 2 feet east to west from the eastern side of his eastern ancient wall of Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. The appellant had described the property as such in the schedule of the plaint. The respondents admitted the execution of agreement of sale Ex.A4, but denied that it relates to suit property. The agreement of sale relates to land east to west 2 feet and north to south 37 feet, which was encroached by the predecessor in title of the appellant, viz., Netto. The said Netto after encroaching the property, had put up superstructure in the encroached property. He filed the suit in O.S.No.888/1977 for mandatory and permanent injunction. While the said suit was pending, he sold the property to one Suseila, who in turn sold the property to the appellant. The respondents agreed to sell only the encroached property to the appellant. The said property measures 2 feet east to west from the eastern wall of property towards west. They never agreed to sell the suit property, which lies on the eastern side of eastern wall of property bearing Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy.
22. The learned I Additional District Munsif, Trichy, examined Ex.A4 and found out that there is no description of property agreed to be sold. From the recital of Ex.A4, the learned I Additional District Munsif, Trichy, concluded that the property agreed to be sold is not the suit property and it relates to the property already encroached and construction having been put up by the predecessor in title of the appellant. In spite of such conclusion, the learned I Additional District Munsif, Trichy, granted decree of specific performance in respect of the property already encroached by the predecessor in title of the appellant solely on the ground that the second respondent-DW2 had stated that the respondents are willing to execute the sale deed as per Ex.A4. The appellant did not seek specific performance of that property. He sought the sale deed in respect of the property viz., 37 feet north to south and 2 feet east to west, eastern side of his eastern ancient wall of Door No.64/E-1, Kallar Street, Kallukuzhi, Trichy. The appellant failed to substantiate his claim for specific performance of property described in the schedule to the plaint by any acceptable evidence. The learned I Additional District Munsif, Trichy, dismissed the suit in respect of mandatory and permanent injunction. The appellant had preferred first appeal against the judgment and decree of the learned I Additional District Munsif, Trichy.
23. The learned I Additional District Judge-cum-Chief Judicial Magistrate, Trichy, on erroneous consideration of materials on record, confirmed the said decree of specific performance. The decree of specific performance granted by the Courts below are contrary to law. The Courts below have granted the judgment and decree, which was not sought for by the appellant. Hence, the decrees of specific performance are set aside.
24. The learned I Additional District Munsif, Trichy, dismissed the suit in respect of the reliefs of mandatory and permanent injunction. The learned I Additional District Judge-cum-Chief Judicial Magistrate, Trichy, set aside the said judgment and decree and passed the judgment and decree granting the relief of mandatory injunction as well as permanent injunction. The appellant on misconception, has filed the present second appeal against the judgment and decree, as if the said reliefs were not granted to him.
25. The respondents have filed the cross objection against the said portion of the judgment and decree granting mandatory and permanent injunction. In Ex.A4, the appellant is permitted to construct a closed cement drainage in the property in question. In the said drainage, the sewerage from the houses of both the appellant as well as the respondents are let in. As per Ex.A4, the appellant had constructed a cement drainage. It is an admitted fact that there was a 6 feet wooden gate on the east side of eastern wall of the property belonging to the appellant and provision was made to lock the gate at the eastern wall of the appellant. It is also admitted that the respondents removed the said gate and constructed a wall.
26. According to the respondents, the appellant orally agreed to remove the wooden gate and construct a wall. The appellant did not comply with the oral agreement. Therefore, the respondents have removed the wooden gate and put up the construction. The respondents contended that the appellant did not have any right to enter into the property belonging to the respondents.
27. The learned I Additional District Munsif, Trichy, considered Ex.A4 and evidence of DW1, rejected the contentions of the respondents that there was an oral agreement, whereby the appellant agreed to remove the wooden gate and put up the construction and also took note of the fact that the sewerage from the house of the appellant are let in into the cement drainage constructed by the appellant on the eastern side of the compound wall of the property belonging to the appellant.
28. In spite of these findings, the learned I Additional District District Judge-cum-Chief Judicial Magistrate, Trichy, did not grant decree of mandatory and permanent injunction. The learned I Additional District Munsif, Trichy, did not give any reason for rejecting the claim of the appellant for a decree of mandatory and permanent injunction. The I Additional District Munsif, Trichy, erred in dismissing the suit for mandatory and permanent injunction. The I Additional District Munsif, Trichy, did not pass the judgment and decree based on the findings arrived at by him.
29. On the other hand, the learned I Additional District Judge-cum- Chief Judicial Magistrate, Trichy, has considered the pleadings and evidence in a proper perspective and reversed the judgment and decree of the I Additional District Munsif, Trichy. The judgment and decree of the learned I Additional District Judge-cum-Chief Judicial Magistrate, Trichy, granting the decree of mandatory and permanent injunction, is based on the finding of fact. There is no substantial question of law involved for consideration by this Court.
30. For the above reasons, the judgment and decree of the I Additional District Judge-cum-Chief Judicial Magistrate, Trichy, setting aside the judgment and decree of the learned I Additional District Munsif, Trichy, rejecting the claim of the appellant for mandatory and permanent injunction, is confirmed. The judgments and decrees of the Courts below granting decree of specific performance are set aside.
31. The substantial question of law framed by this Court is held against the respondents/cross objectors.
32. In the result, the second appeal is dismissed for non-prosecution and the cross objection is dismissed for the reasons stated above. No costs.
19.12.2014 Index : Yes Internet : Yes smn2 To
1.The I Additional District Judge-cum-Chief Judicial Magistrate, Trichy.
2.The I Additional District Munsif, Trichy.
V.M.VELUMANI,J.
smn2 Pre-delivery common Judgment in S.A.(MD)No.911 of 2003 & Cross Objection No.58 of 2003 19.12.2014