Andhra HC (Pre-Telangana)
M. Muthamma vs E. Anantha Lakshmi Bai And Anr. on 24 February, 2004
Equivalent citations: 2004(2)ALD762, 2004(4)ALT435
JUDGMENT P.S. Narayana, J.
1. The unsuccessful defendant in both the Courts below as appellant in the present Second Appeal, had invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure raising the following substantial questions of law:
1. Whether the decision of the Courts below in granting the relief of mandatory injunction assuming without admitting that there is encroachment even without considering the aspect which the same can be compensated otherwise ?
2. Whether the suit for mere mandatory injunction without seeking declaration is maintainable ?
3. Whether the plaintiffs' are bound by the principles of estoppel by conduct in acquiescing and allowing the completion of the constructions ?'
4. Whether the decision of the Courts below without considering the entire evidence on record is sustainable ?
5. Whether the suit is bad for non-joinder of necessary parties ?
6. Whether the non-consideration of Exs.B-10 and B-12 by the Trial Court and Ex.B-10 by the Appellate Court would vitiate the judgment and decree made by the Appellate Court ?
7. Whether the plaintiffs' having kept quiet for several long years be permitted to raise a ground praying for the relief of mandatory injunction for removal of the structures even on the principle of stand by, acquiescence and waiver.
8. Whether the Courts below are justified in granting the relief of mandatory injunction without recording a finding as to the relative damage which would be caused to the respective parties ?
9. Whether the non-consideration of principle of payment of compensation in lieu of mandatory injunction in any way would vitiate the Judgment and decree of the Appellate Court ?
10. Whether this is a fit matter to be remanded or at least to call for a finding relating to the quantum of compensation payable in lieu of the relief of mandatory injunction in the light of Section 40 of the Specific Relief Act, 1963?
2. Submissions at length were made by Sri Sunder Rajan and Sri Vilas Afzulpurkar, Counsel representing the respective parties on the aspect of the relief of mandatory injunction being a discretionary relief and compensation payable to be decided in lieu of mandatory injunction. Doctrine of estoppel, principle of stand by, principle of acquiescence and principle of waiver and applicability thereof also had been argued elaborately. Contentions relating to the applicability or otherwise of the doctrine of equity also had been highlighted. Certain decisions also were relied upon in support of their respective contentions by both the Counsel.
3. Respondents/plaintiffs pleaded in the plaint in O.S. No. 198/88 on the file of DC Junior Civil Judge, City Civil Court, Hyderabad while praying for the relief of mandatory injunction and perpetual injunction as hereunder:
Plaintiffs' are the absolute owners of the premises bearing Municipal No. 3-5-19, situated at Ramkote, Hyderabad having purchased the same through a registered sale deed dated 5/12-8-1955 and there is a window towards Southern side of the plaintiff's house prior to their purchase for aid and light and that the plaintiffs property is having country tiled roof and the same is slope towards South and the rain water from the roof of plaintiffs' property flows towards Southern side and that there is an open place admeasuring 3' x 10' on the Southern side of the plaintiffs property meant for rain water from the roof of the property of plaintiffs apart from providing air and light through their property and the suit property is shown in red colour in the rough sketch. It was further pleaded that the defendant who is the owner of the house bearing No. 4-2-698 purchased the same through a registered sale deed dated 10-12-1951 which is described in blue colour and the defendant has no manner of right over the suit property. The plaintiff came to know in the month of January 1987 that the defendant while submitting plans included the suit property and showed it open to sky out of mala fide intention to grab the suit property of the plaintiff and without any right or interest the defendant raised certain structures in the suit property illegally by using the wall on North-East of the suit property of the plaintiff and also opened windows and because of the said illegal structures, the rain water is coming through the window directly into the room adjoining the suit property and that thereby it is difficult for the plaintiff to use the room for residential or other purposes. It was also pleaded that the plaintiff approached the defendant in the month of January 1987 and asked her to close the window and remove the structures raised in the suit property and the structures raised by using other walls of the plaintiffs property, but the defendant refused to remove the same. The plaintiff complained/applied to the Municipal Corporation of Hyderabad complaining about illegal structures raised in the suit property and after verifying the documents of both the parties the officials of the Municipal Corporation of Hyderabad came to the suit property to demolish the illegal structures including the window and the defendant managed them and instituted a suit O.S. No. 2210/87 on 29-4-1987 and obtained injunction orders without making the plaintiff as a party to the said suit. It was also further pleaded that the defendant has no manner of right or interest in the suit property and according to her own documents, the property is outside the boundaries of the property purchased by the defendant. Therefore, the defendant is bound to remove the structures raised in the property and close down the window and also to remove the structures raised on the walls belonging to the plaintiff.
4. The appellant herein as defendant filed a written statement denying all the allegations. It was pleaded that the defendant is not the owner of the property bearing No. 3-5-19 and there is no window existing on the Southern side of the plaintiff's house. It was pleaded that there was neither a window nor any ventilation as alleged by the plaintiffs prior to their purchase and there is no open place measuring 3' x 10' on the Southern side of the plaintiffs for rain water and for air and light to the plaintiffs property. The existing structures i.e., bath room and W,C. are attached to the Southern side of the plaintiffs house and the walls between the two houses were attached to the extent of measurements and the defendant obtained permission from M.C.H. for change of room-cum-shops of the ground floor in the year 1981 vide permit No. 119/ 76, dated 27-5-1981 and constructed the same during the year 1981-82 and the plaintiffs also are aware of the same and did not raise any obstruction/objection at the time of construction and the plaintiff No. 1 executed the sale deed in favour of the defendant selling the wall of 9" thick on the Eastern side of the defendant's house admeasuring an area of 1.70 sq. yards running from North to South 23' x 4" under document No. 2556, dated 31-3-1982 and the 1st plaintiff received excess amount from the defendant and the plaintiff purchased the property through Housing Board admeasuring an area of 12.50 sq. yards through a registered document and out of that the plaintiff surrendered land to defendant and possession was also delivered on the same day and the defendant laid the roof by covering on the wall purchased and completed her construction work during the year 1981-82 and the defendant submitted the plan for construction of first and second floors in the year 1985 and after enquiry the Government and M.C.H. authorities issued sanctioned plan through permit No. 5/51/1985 in File No,698/2/4/85 dated 22-8-1985 and that the M.C.H. authorities imposed compounding fee of Rs. 500/- for regularization of ground floor deviations. The defendant approached the Government for regularization of construction of ground floor and for sanctioning the permission of first and second floors on the existing structures and the Government regularized the construction of ground floor and granted permission for construction of first and second floors on the existing structures of the suit property vide G.O. Rt. No. 175, M.A. dated 2-6-1985 and the defendant completed the construction in the year 1985 itself. The defendant never raised any illegal structures in the suit property by using the wall of North-Eastern side of the suit property and the said structures were raised by the defendant in the month of January, 1987. It was also further pleaded that the window put up by the defendant will not cause any inconvenience to the plaintiff for use of the roof and the plaintiff never approached the defendant in the month of January, 1987 nor asked her to close down the window opened towards the suit property and to remove the structures. The defendant neither raised any structures nor opened any windows on the North side of her house and therefore the question of acquiescing the defendant for closure of the same does not arise. The plaintiffs instigated the officials of the M.C.H. by using their official influence since the 2nd plaintiff is an officer in Secretariat and in order to harass the defendant got issued a demolition notice with false and frivolous grounds and therefore the defendant was constrained to file a suit in O.S. No. 2210/87 on the file of DC Junior Civil Judge, City Civil Court, Hyderabad and obtained injunction orders against M.C.H. from demolishing the existing structures of the suit house and the suit property is covered by their title deeds. It was further pleaded that they raised structures on their own property as per sale deed and there is a bath room and W.C. on the Northern side of the house falling on the Southern side of the plaintiff's house and there are parallel walls between the Southern side of the plaintiff and bath room and W.C. of the defendant which were roofed with R.C.C. upto 61/2' height and remaining height is kept open to sky for ventilation of her building and also to flow rain water into her neighbour at Eastern side. Taking advantage of the open space on the roof of the bath room of the defendant, the plaintiff tried to open ventilation about 7' height which is quite illegal and the defendant raised objection for the same and the plaintiff constructed a mulgi in open space adjacent to the house of the defendant which falls on the Southern side of the plaintiff due to which the rain water of the plaintiff is flowing on the bath room of the defendant. Though the defendant gave complaint to M.C.H. they did not take any action.
5. The appellant/defendant also had set-up a counter claim pleading that due to insufficient accommodation and funds for making her livelihood during her life time, she constructed the suit property by obtaining permission from the M.C.H. in order to provide one mulgi to her younger son for establishing a tailoring shop. It was pleaded that the defendant proposed construction of ground floor in the year 1976 and obtained sanctioned plan and completed the construction in the year 1981-82 and at the time of construction work, the plaintiff disposed of half of the wall of 9" thickness in favour of defendant on Eastern side of the defendant's property running from North to South of 20'x 4" and completed the construction and laid roof on the purchased wall also, but the plaintiff never raised any objection to stop the said construction work. The defendant submitted proposal for construction of first and second floors on the existing ground floor in the year 1985 duly mentioning accurate internal measurements on Eastern side to the extreme corner of the suit property and the M.C.H. authorities after inspection accorded permission in the year 1985 by imposing compounding fee of Rs. 500/- for deviations and thereafter the defendant completed her construction. The plaintiff never raised any objection till the construction of first and second floors was over and the husband of the plaintiff approached and requested to permit him to open ventilation on the Northern side of the defendant. The defendant refused the same and the 2nd plaintiff lodged a complaint before the M.C.H. and forced them to issue notice of demolition of existing structures of the defendant and tried to open ventilation towards defendant's house. Immediately the defendant lodged a complaint in the month of May 1987 before the M.C.H. authorities who asked to produce original documents. The plaintiff failed to produce the same. The opening of the ventilator by the plaintiff on the Northern side of the defendant's house on the above said roof of the bath room and open space of the defendant is illegal and prayed to direct the plaintiff to close the ventilator towards Southern side of the plaintiffs' house which were put up on the roof of the bath room and open space of the defendant's Northern side house.
6. Rejoinder was filed denying all the allegations. It was also pleaded that plaintiff No. l has not taken any excess amount than the amount mentioned in the sale deed and in the plan submitted for construction by the defendant as shown, the suit property is open to sky in all the floors including the ground floor, and against her own plans she had constructed W.C. and bath room in the suit property to harass and cause damage to the plaintiffs' property. The plaintiffs' are not aware about regularization of the construction made by the defendant as they were not made parties to the suit O.S. No. 2210 of 1987 on the file of DC Junior Civil Judge, City Civil Court, Hyderabad filed by the defendant against the M.C.H. for injunction without making the plaintiff as party and it is the clear proof of mala fides. The construction made by the defendant is by showing deviations and encroachment of the suit property and without following the plan sanctioned by the M.C.H. The bath room and W.C. were constructed illegally and the counter claim made by the defendant for closure of window is in existence from the beginning. So, the question of obstruction of the defendant does not arise and the 2nd plaintiff never used his office influence on the M.C.H, which allegation is false. The construction of the mulgi by the plaintiff was made without due permit and sanction by the M.C.H. and for which the defendant cannot have any complaint. The said allegations are made only to complicate the case and mislead the Court. The plaintiffs' are not bothered about the construction made by the defendant, but they are only seeking demolition of W.C. and bath room in the suit property which are not included in the sale deed of the defendant. The plaintiffs husband never approached the defendant for permission to open a ventilator which is in existence from the beginning and it is only the wall of the plaintiff opening into the suit property. The counter claim made by the defendant is not maintainable.
7. The issues specified hereunder were framed on the respective pleadings of the parties:
1. Whether the plaintiff is entitled for the reliefs of mandatory and permanent injunctions as prayed for ?
2. Whether the defendant is entitled for the counter claim in her favour directing the plaintiffs to close ventilator opened towards the Southern side of the plaintiffs house No. 3-5-19 falling above roof of the bath room and open space on the Northern side of defendant's house No. 4-2-698 as prayed for ?
3. To what relief?
An additional issue no doubt was framed, but the same was deleted as unnecessary and superfluous.
8. Plaintiff No. 2 was examined as PW-1 and Exs.A-1 to A-8 were marked. Defendant was examined as DW-1 and another witness DW-2 also had been examined and Exs.B-1 to B-17 were marked. The Court of first instance discussed the evidence at paras 10 to 19 and at para 20 ultimately decreed the suit as prayed for directing the defendant to remove encroachment made by her in the suit property, to close down the ventilators and windows towards the house of the plaintiffs and also to remove structures made on the wall of the plaintiff within a period of two months from the date of the judgment and also not to interfere with the possession of the plaintiffs in respect of the subject-matter of the suit property. The counter claim made by the defendant also had been dismissed. Aggrieved by the same, A.S. No. 48/2000 on the file of DC Additional Chief Judge, City Civil Court-cum-Fast Track Court, Hyderabad was filed and the same was dismissed without costs.
9. The Appellate Court at para 8 had framed the following Point for consideration :
"Whether the plaintiffs have title to and possession of the disputed site and whether they are entitled the mandatory and prohibitory injunctions prayed for ?"
The Appellate Court had recorded findings in detail commencing from paras 9 to 13 and ultimately had confirmed the findings of the Court of first instance.
10. In this Second Appeal, questions which had been referred to supra were canvassed. There cannot be any quarrel in relation to several of the legal propositions which were advanced by both the Counsel, but the Court may have to see whether these principles can be extended to the facts on hand. Section 40 of the Specific Relief Act dealing with Damages in lieu of or in addition to, injunction reads :
(1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the Court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.
It is no doubt true that Kerr in his Treatise on the Law and Practice of Injunctions had stated that the Court will not as a rule interfere by way of mandatory injunction without taking into consideration the comparative convenience and inconvenience which the granting or withholding the injunction would cause to the parties. It is no doubt true that the relief of mandatory injunction by and large is discretionary and to substantiate the contention that in such a case normally the possibility of payment of compensation in lieu of grant of granting of mandatory injunction may have to be considered. Strong reliance was placed on Krishnan Pillai v. Kilasathammal, AIR 1928 Mad. 810, R.S.Muthuswami Gounder v. A. Annamalai, , Redland Bricks Ltd. v. Morris and Anr., 1969 (2) All. E.R 576, K. Satyanarayana v. K. Ramaiah, , Prabhoo v. Doodh Nath, , Ram Shanker v. Mahatma Gandhi H.S. School, , Lalit Mohan v. Samirendra Kumar, , Dhannu Lal v. Bansidhar, AIR 1929 Pat, 349, Jangaiah v. D. Manikchandra, 1973 APHC 212. The aspect of relief of mandatory injunction of demolition of structure and the principle of stand by had been explained in the light of the facts and circumstances and the aspect of delay, waiver and acquiescence also had been advanced by placing reliance on Gopalakrishna v. Narasimham, AIR 1958 AP 586, Ravuru Punnamma v. Lakkaraju Venkata Subba Rao, , Ulagappan Ambalam v. Chidambaram Chetty, ILR 29 Mad. 497, Jamnadas Shankarlal v. Atmaram Harjivan, ILR (2) Bom 133, Rev.Michael v. Krishnaveni, , Chhaddu Singh v. Kewal and Ors., and Jaladurga v. Ladooram, AIR 1936 Mad 687.
11. There cannot be any quarrel as far as the propositions of law laid down in the said decisions. The stand taken by the respondents/plaintiffs is that they have raised objection at the earliest point of time and without impleading them as against M.C.H. a suit was filed and interim order was obtained and to such trespasser or encroacher no equity can be extended or principle of estoppel by conduct or principle of stand by or principle of waiver or acquiescence cannot be made applicable. Strong reliance was placed on D. Shanker and Anr. v. Smt. Ananta Laxmi, and R. S. Maddanappa (Deceased) After Him By His Legal Representatives v. Chandramma, . It may also be appropriate to have a look at the relevant findings at para 10 of the Judgment recorded by the appellate Court in this regard, which are as hereunder:
"....Ex B-15 notice given by the Hyderabad Municipal Corporation to the defendant clearly mentions that the defendant is covering the north east corner and that she should remove the structure made on the north east corner of her house. The learned Counsel for the defendant points out that there are some deviations in the construction made by the defendant as alleged by the Hyderabad Municipal Corporation in Ex.B-15 notice and that however the said deviations were regularized by the Hyderabad Municipal Corporation on the defendant paying a compound fee of Rs. 500/- as mentioned in Ex.B-12 regularisation order passed by the Government. It may be seen that Ex.B-12 regularisation order is only in respect of the deviations in the set backs and not in regard to the structure made in the north east corner of the defendant's house. Therefore, the defendant cannot take the shelter of Ex.B-12 regularisation order passed by the Government to show that the structures made by her in the north east comer of her house were regularized."
At para 12, the Appellate Court also had clearly stated:
"...It may be seen that Ex.B-15 notice issued by the Hyderabad Municipal Corporation in the year 1987 mentions that the defendant was given permission to construct the house in August, 1985. Therefore it cannot be said that the defendant completed the construction in the year 1982. The suit was filed in the year 1988 about 3 years after the defendant obtained permission from Hyderabad Municipal Corporation for construction of her new house. It may also be seen that the defendant admittedly filed a suit O.S. No. 2210/87 against the Municipal Corporation and obtained injunction and then made the construction. Since the plaintiffs filed the suit in the year 1988 within a short time after the defendant filed a suit agreement Hyderabad Municipal Corporation and obtained injunction, I hold that the question of estoppel by conduct on the part of the plaintiffs does not arise."
Whether the doctrine of equity has to be applied to a particular set of facts or not is predominantly a question of fact. Even if the parties are not willing, may be in exceptional circumstances, Courts can extend the said principle. The comparative relative damage or hardship may have to be considered only if such contentions are advanced by the parties. No such attempt was made before the Courts below and hence at the stage of Second Appeal such a contention cannot be permitted to be raised. Normally, equity cannot be extended to a party who had committed deliberate acts and such acts are not bona fide either as encroacher or as a mere trespasser. Equity principle cannot be stretched too far and at any rate on appreciation of facts and circumstances of the present case, this Court is of the opinion that this is definitely not a fit case where the said principle can be extended. In a suit for perpetual injunction and mandatory injunction, the question of title also may be incidentally gone into and such suit necessarily need not fail for want of praying the relief of declaration of tile. Findings in detail had been recorded by both the Courts below on appreciation of both oral and documentary evidence. The non-consideration of Exs.B-10 and B-12 by the Trial Court and Ex.B-10 by the Appellate Court also had been raised. While dealing with non-consideration of the material evidence on record, the Court may have to see whether the contention in relation to such evidence in substance had been dealt with or not and just the mere omission to refer to a particular document always may not vitiate the Judgment and decree in toto unless non-consideration of such material piece of evidence is so fatal and the question concerned with the same had been totally left untouched. On a careful consideration of the findings recorded by both the Courts below, this Court is well satisfied that all the factual aspects even in relation to boundaries of Exs.A-1, A-2 and A-3 and also the other documents Exs.A-4 to A-8 and the evidence of PW-1, Exs.B-1 to B-9, B-11 to B-17 and the evidence of DW-1 and DW-2 also had been well considered. Ex.B-10 is the M.C.H. permit dated 28-3-1981 and reliance is placed on this document to substantiate the contention that for sufficiently a long time the plaintiffs kept quiet and approached the Court at a belated stage and hence the relief of mandatory injunction may have to be negatived and in stead in lieu thereof compensation may have to be awarded. Clear findings in this regard had been recorded by both the Courts below. A comparative study of the conduct of the respective parties also would definitely go to show that the conduct of the appellant would not justify the high-handed acts on the part of the appellant perpetrated as specifically observed by the Appellate Court both at para 10 and para 12. It is needless to say that all other aspects are only factual aspects.
12. Except these questions, no other Points had been urged.
13. Viewed from any angle, in the light of the concurrent findings recorded by both the Courts below, this Court is not inclined to disturb such factual findings in this Second Appeal. The Second Appeal is bound to fail and accordingly the same shall stand dismissed, with costs.