Madras High Court
Kannan vs Venkatachalam on 28 July, 2011
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :28.07.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1112 of 1997 Kannan ... Appellant Vs. 1.Venkatachalam 2.Sadasivam 3.Subramanian 4.Balayya ... Respondents Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 17.1.1997 in A.S.No.78 of 1996 on the file of the learned I Additional Subordinate Judge, Pondicherry in modifying the Judgment and Decree of the trial Court dated 30.06.1993 in O.S.No.356 of 1989 on the file of the II Additional District Munsif Court, Pondicherry. For Appellant : Mrs.G.Sumithra For M/s.R.Subramanian For Respondents : Mr.R.Sunil Kumar J U D G M E N T
The Appellant/Defendant has filed the present Second Appeal before this Court as against the Judgment and Decree dated 17.01.1997 in A.S.No.78 of 1996 passed by the Learned I Additional Subordinate Judge, Pondicherry.
The Germane Plaint averments of the Respondents/Plaintiffs are recapitulated as follows:-
2.The suit property in dispute formed part of vacant land described in blue in the rough sketch attached to the Plaint. The suit land forms part of the land comprised in R.S.No.232/18 situate at Veemacoundanpalayam, Pondicherry. The disputed portion is shown as 'B' Schedule property and the same forms part of 'A' schedule property on the western side.
3.The 'A' schedule property originally belonged to one Murugesan, grandfather of the Respondents/Plaintiffs, who died leaving behind his only son Veerabadiran. The Respondents/Plaintiffs are sons and heirs of the said Veerabadiran.
4.The Appellant/Defendant is the brother's son of the plaintiffs' father Murugesan. The Plaintiffs grandfather Murugesan had three brothers viz., Ariaputhiri, Subarayan and Ramasamy. The Appellant/ Defendant is the son of Ariaputhiri. The grandfather of the Respondents/Plaintiffs and his brothers divided the property several decades ago and were in possession and enjoyment of the respective shares. They had divided early. The patta for the shares had been mutated to four brothers and patta for the suit property was standing in the name of Murugesan for well over 50 years. The Appellant/ Defendant had purchased the shares from the Pangalis (Coparcener). The Respondents/Plaintiffs were enjoyed the suit 'A' schedule property by constructing a live fence and by storing the waste materials etc. Also, they were in exclusive possession and enjoyment of the same.
5.To widen the road as per Land Acquisition Act, the Government had acquired about 20 feet of land on the northern side of the suit property of the Respondents/Plaintiffs and the Appellant/Defendant. The Appellant/Defendant is a Contractor and is engaged in manufacturing of mosaic tiles. The Appellant/Defendant admitted to encroach into the 'B' schedule property which was resisted by the 2nd and 3rd Respondents/Plaintiffs, who suggested to the Appellant/ Defendant that the respective lands might be measured and surveyed by the Land and Survey Department and agreed to resolve the dispute amicably. The Appellant/Defendant initially accepted. The 3rd Respondent/3rd Plaintiff left for France urgently to see his ailing brother son. The Appellant/Defendant, taking advantage of his absence, had encroached into the suit 'B' schedule property and constructed building to the entire north-south.
6.Therefore, the Respondents/Plaintiffs had filed the suit for Declaration of their title in respect of 'B' schedule property viz., that they are the owners of 'B' schedule property and for the mandatory injunction to remove the superstructure in 'B' schedule property which was constructed in July-August, 1987.
The Written Statement averments of the Appellant/Defendant are set out hereunder:-
7.The suit is highly vexatious and it is an abuse of process of law. The averment that the suit property alleged to be in dispute formed part of vacant land described in blue in the rough sketch and the same forms part of the land in R.S.No.232/18 etc. are all denied by the Appellant/Defendant as incorrect and legally unsustainable one. The further allegations that the Appellant/Defendant admitted to encroach into the 'B' schedule property and for the same was resisted by the 2nd and 3rd Respondents/Plaintiffs and that they suggested to him for the measurement of survey etc., are all blatant falsehoods concocted for the purpose of projecting a non-existence cause for the suit.
8.The suit reliefs are all barred under the law of Limitation. Moreover, the suit is bad for non-joinder of the necessary, proper and essential parties to the proceedings. The Appellant/Defendant is the exclusive owner of the properties in his physical possession and enjoyment and that the properties were clearly demarcated by walls for decades. The Appellant/Defendant purchased the properties under two different Sale Deeds dated 22.03.1975 and 06.11.1971 and constructed his required superstructures. From that time onwards, the Appellant/Defendant was in exclusive, peaceful and open possession and enjoyment thereof as absolute owner.
9.Before the trial Court, in the main suit, five issues in all were framed. On the side of the Respondents/Plaintiffs, witnesses P.W.1 to P.W.3 were examined and documents Exs.A.1 to A.5 were marked. On the side of the Appellant/Defendant, witness D.W.1 was examined and Exs.B.1 to B.16 were marked. The Court Commissioner was examined as C.W.1 and Exs.C.1 to C.3 were marked.
10.The trial Court, on an appreciation of oral and documentary evidence available on record, had decreed the suit to the effect that 'the Respondents/Plaintiffs are the owners of the property mentioned as R.1 in Ex.C.3 and entitled to recover the vacant possession of the same from the Appellant/Defendant and also granted the relief of mandatory injunction in favour of Respondents/Plaintiffs for the removal of superstructure constructed in the property described as R.1 in Ex.C.3.' The trial Court also granted six months' time for removal of superstructure from the encroached property and directed the handing over of the same to the Respondents/Plaintiffs.
11.Being dissatisfied with the Judgment and Decree passed by the trial Court in O.S.No.356 of 1989 dated 30.06.1993, the Appellant/ Defendant had filed A.S.No.78 of 1996 on the file of the I Additional Subordinate Judge, Pondicherry.
12.Before the First Appellate Court viz., I Additional Subordinate Judge, Pondicherry, in Appeal, on the side of Respondents/Plaintiffs, Exs.A.6 and A.7 were marked and on the side of the Appellant/ Defendant, Exs.B.17 and B.18 were marked.
13.The First Appellate Court viz., I Additional Subordinate Judge, Pondicherry, while delivering the Judgment in A.S.No.78 of 1996, modified the Decree of the Judgment, by directing the Appellant/ Defendant to hand over the delivery of possession of the area referred to R.1 in Ex.C.3 after removal of superstructure to the Respondents/ Plaintiffs and further directed the Respondents/Plaintiffs to pay the deficit Court fees within three months from the date of Judgment.
14.Being dissatisfied with the Judgment rendered by the First Appellate Court viz., I Additional Subordinate Judge, Pondicherry in A.S.No.78 of 1996, the Appellant/Defendant had preferred the present Second Appeal as an aggrieved person before this Court.
15.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law:
"Whether the Lower Appellate Court was right in not considering the question of acquiescence before granting a decree for mandatory injunction?"
The Contentions, Discussions and Finding on Point:-
16.According to the Learned Counsel for the Appellant/ Defendant, the First Appellate Court ought to have seen that the relief sought for in the main suit is one for mandatory injunction and therefore, the Respondents/Plaintiffs ought to prove their case beyond reasonable doubt.
17.It is the contention of the Learned Counsel for the Appellant/ Defendant that the First Appellate Court has erred in coming to the conclusion that Ex.A.2-Patta standing in the name of Subramanian dated 28.21.1977, Exs.A.6 and A.7-Certified true copies issued by the Assistant Director of Archives would establish the title of the Respondents/Plaintiffs in respect of the suit property, when in fact Ex.A.6 shows that Cad.Bo.1861/5/6 stands in the name of Ramaswamy Gounder.
18.The Learned Counsel for the Appellant/Defendant contends that the Learned First Appellate Court has not adverted to the question of acquiescence and further has committed a mistake in holding that the actual construction has been put up only in the year 1987, when the re-survey records establish that the Appellant/Defendant has been in possession of the disputed area from the date of his purchase.
19.The Learned Counsel for the Appellant/Defendant takes a plea that the First Appellate Court has overlooked the difference in measurements in Commissioner's Report and the Plaint schedule.
20.Lastly, it is the contention of the Appellant/Defendant that the Respondents/Plaintiffs has remained quite for nearly 12 years before filing the instant suit in the year 1989 and therefore, a Decree for mandatory injunction ought not to have been granted.
21.In reply, the Learned Counsel for the Respondents/Plaintiffs supported the Judgment and Decree of the First Appellate Court in A.S.No.78 of 1996 and contends that the First Appellate Court had taken into account all the relevant facts and circumstances of the case coupled with the oral and documentary evidence available on record and had come to a just and fair conclusion which need not be interfered with at the stage of Second Appeal.
22.The Learned Counsel for the Appellant/Defendant relies on the decision of this Court in Ramizabi and others V. Mohammed Yassin, (2010) 4 MLJ 884 at page 906 wherein in paragraph 41, it is held as follows:
"41.It is true that both the Courts below have concurrently decreed the suit . But the question of law involved is whether the appellants have prescribed title by adverse possession. The first appellate court is the last fact finding court. If the last fact finding court has not considered the material evidence, then the second appellate court will have the jurisdiction to re-appreciate the evidence and interfere with the findings of both the Courts below. On the basis of the decision relied upon by both the parities and their oral and documentary evidence, it has been clearly proved that the adverse possession starts only on the date of dismissal of A.S.NO.65 of 1983 on 30.3.1984. The suit has been filed in the year 5.9.1996, so for about 12 = years the appellants have been enjoying the property with the knowledge of this true owner, adverse to the interest of this respondent, for more than statutory period. Hence they prescribed title by adverse possession. So I am of the opinion that both the courts have not considered this aspect in a proper perspective. The judgements and decrees of both the courts below are liable to be set aside and the second appeal is liable to be allowed."
Further, in the aforesaid decision, at page 905 in paragraph 34 and 35, it is held thus:
"34.Moreover in that earlier proceedings it was decided that Ramzan bi is in a permissive possession and she is only a licencee. As soon as the appeal has been disposed of, her possession become adverse to the interest of the true owner. Since Limitation act is applicable for the Pondicherry Territory the appellant is in possession and enjoyment for more than a statutory period with the knowledge of this respondent. Hence she prescribed possession of title by adverse possession.
35.One more adding point is that after the dismissal of A.S.65/1983 on 30.3.1984, the respondent herein has filed O.S.No.551/1983 against Abdul Azis, Shafya bi, Ibrahim and Muthu and not against these appellants in S.A. 1106 and 1107 of 1999. Hence she is enjoying this property with the knowledge of the true owner openly, continuously without interruption for more than a statutory period. So there is animus possidendi since she is claiming adverse possession in the earlier suit. Even though it was decided in earlier suit that it is permissive possession, but the respondent has not filed any suit against her for recovery of possession."
23.He also seeks in aid of the decision of the Hon'ble Supreme Court in Syndicate Bank V. Prabha D.Naik and another (2001) 2 MLJ 97 (S.C.) at page 104 & 105, wherein in paragraphs 21 and 22, it is laid down as follows:
"21.Admittedly, Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a latter statute of the year 1963 only that the Portuguese Civil Code assuming had its application in the State of Goa, Daman & Diu and an earlier statute thus stand altered, as the latter is expressed in affirmative language, more so by reason of specific application of Negotiable Instrument Act and Indian Contract Act: It thus cannot but be said to be repealing by implication - "affirmative statute introductive of a new law do imply a negative" [(Harcourt v. Fox (1693) 1 show. 506].
22.As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-a-vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the Limitation Act, the Court in spite of plea not being raised by the defence, can go into the same suo moto but there is a specific bar under Article 515 of the Civil Code which records that the Court cannot suo moto take cognizance of description unless it is specifically pleaded by the parties. It is a bar of jurisdiction of Court. The repugnancy and incongruity arise by reason of the fact that the Parliament by law viz. The High Court at Bombay: (extension of jurisdiction to Goa, Daman and Diu) Act 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union Territory of Goa, Daman and Diu from the appointed day and the Court of Judicial Commissioner was abolished. Section 9 of the statute [(Act of 1981) (supra)] provides that there shall be, on and from appointed day, established a permanent Bench of the High Court of Bombay at Panaji and some Judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay to take cognizance of an action being barred by limitation, thus stands negated -conceptually, even a difficult situation to conceive that same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that on the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano's case (supra) stand overruled. There is one general law of limitation for the entire country being the Act of 1963, and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman & Diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific mention of repealing statute (since 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs."
24.However, the Learned Counsel for the Respondents/Plaintiffs invites the attention of this Court to the decision in Rangaswamy @ Govindaram (Died) and 5 others V. The Deputy Collector (Revenue)-Cum-Land Acquisition Officer, Pondicherry 1997 (II) CTC 97 at page 101, 102 & 103 wherein in paragraph 9, it is held as follows:
"9. We have carefully considered the submissions of the learned counsel appearing on either side. Section 53 of the Land Acquisition Act lays down that save in so far as they may be inconsistent with anything contained in this said Act, the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the court under the Land Acquisition Act. There is nothing in the Land Acquisition Act, which militate against the applicability of Section 114 and Order 47 of the Code of Civil Procedure relating to review to proceedings before courts exercising powers under the said Act. The next aspect that requires in this context to be adverted to is the period of limitation applicable. Under the Limitation Act, 1963, Article 122 of the Schedule to the Act prescribes the period of limitation for review, among other things, as thirty days from the date of the order sought to be reviewed. If the provisions of the Limitation Act, 1963, alone applied to the case on hand, no exception could be taken to the conclusions arrived at by the court below. But, Section 29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law. In Cooppousamy's case, 1988 (I) MLJ 432, Sathiadev, J. had dealt with a similar issue interpreting the scope of Section 29(2) of the Limitation Act in the context of a similar claim as the one made before us with reference to the French Civil Code, particularly Article 2262, and the learned single Judge had held therein that in the absence of a specific extension of the Limitation Act to the Union Territory of Pondicherry by virtue of extension of the provisions of the Code of Civil Procedure with effect from 1.8.1966, the law of limitation, namely Limitation Act, 1963, also cannot be considered to have been extended or that it became automatically applicable or enforceable in the Union Territory of Pondicherry. In coming to such a conclusion, the learned single Judge placed strong reliance upon the earlier decisions of this Court in Chockalinga Mudaliar v. Manivanna Pillai, 1978 (2) MLJ 544 and Justiniano v. Antonio, . The decision of the apex Court was rendered in the context of an identical situation as the one arising now pertaining to the French Settlements in India, now Union Territory of Pondicherry, in relation to Portuguese settlements, which are now Union Territories of Goa, Diu and Daman. Consequently, the learned single Judge held that Article 2262 would continue to have application in the Union territory of Pondicherry and the extended period of limitation provided therein will be available to a litigant. So far as the Union territory of Pondicherry is concerned, it is only thereafter the Pondicherry Limitation (Repeal of Local Laws) Act, 1994, Act 15 of 1994, was passed. The said Act provided for in a Section 3, repeal of local laws in force in the Union territory of Pondicherry or any area therein corresponding to the Limitation Act, 1963 on and from the date of coming into force of the said Act. Section 1(3) provided that the Act shall come into force on such date as the Government may, by notification in the Official Gazette, appoint. The Government of Pondicherry issued G.O.Ms.No. 9/95 - L.D. dated 28.2.1995 appointing first day of March, 1995 as the date on which the provisions of Act 15 of 1994 shall come into force in the whole of the Union territory of Pondicherry. In view of the above, the local law, namely, the French Civil Code in so far as it relates to the relevant provision pertaining to the period of limitation visualised under Article 2262 of the French Civil Code, could, if at all, be said to have ceased application only on and from 1.3.1995. The judgment and decree which are sought to be reviewed in this case were made on 26.4.1983 and the respective petitions for review were presented before the Court below on 14.9.1989. It is well settled that the law of limitation that is applicable is the one, which is in force at the time when the cause or action is instituted, unless any special provision is made to the contra. Consequently, we are of the view that the petitioners herein are entitled to rely upon Article 2262 of the French Civil Code and the period of limitation of thirty years provided therein will ensure to the benefit of the petitioners. We are unable to agree with the learned Additional Government Pleader that there is no scope for extending the period made by him by replying upon the decision in Shah Manilal Chanulal's case, . That was a case which concerned the construction of Section 18 of the Land Acquisition Act, 1894 and the nature of the power that was conferred therein. It is no wonder that the apex court held that it was a statutory power conferred upon the statutory authority and not upon any court and the claim for reference within period striputed being a condition subject to the fulfillment of which only a reference can be sought for and made, there was no scope for extending the period of six weeks provided in Section 18 by invoking or applying the provisions of the Limitation Act, particularly Section 5 of the said Act. The said judgment has no relevance whatsoever to the case on hand."
25.He also cites the decision of this Court in Couppousamy V. Alamelu and 6 others, 1998-1-L.W.-120 at page 121 wherein it is observed as follows:
"Under Art.2262 of the French Civil Code, all rights of action whether in rem or in personam are extinguished by prescription after thirty years. The person who sets up a title by prescription for thirty years is not obliged to rely on any title; nor can a plea alleging bad faith be set up. This Article alone would take in the circumstances arising in the instant case, and is akin to Art. 137 in the Schedule to the Limitation Act. Unless the other provisions of the Limitation Act are extended, the Fresh Civil Code being the "local law" as held by the Supreme Court, and such a la having been applied by the Court below, the civil revision petition has to be dismissed with costs."
26.Before the trial Court, the 3rd Respondent/3rd Plaintiff was examined as witness P.W.1. In his evidence, he had deposed that his brother viz., 1st Respondent/1st Plaintiff was residing in France and that he had executed Ex.A.1-General Power of Attorney dated 27.02.1978 in his favour and that the suit property belonged to them as an ancestral one and her grandfather's father was Muthukrishna Gounder, to whom the property originally belonged and for the said Muthukrishnan, Ariyaputhiri, Subarayan, Ramasamy and Murugesan were the children and an extent of 2 Are and 17 santhars came to the share of Murugesa Gounder and that the said Murugesan had only son by name, Veerabadiran and that his father had expired.
27.It is the further evidence of P.W.1 that the suit property remained as their family property for well over 200 years and the Respondents/Plaintiffs were the four children to their father and that the patta-Ex.A.2 for the suit property stood in the name of Murugesa Gounder and the father of Ariyaputhiri was Loganathan, who son Kannan was the Appellant/Defendant and he had been enjoyment of the western side of the 'A' property and that the suit property was situated on the south of Dindivanam Road and the Appellant/ Defendant's share lies to the west of 'A's property and in 'A' property, a Tamarind tree was there and after cutting the same he had been in enjoyment of the property by putting the fence and by throwing the waste matters.
28.The evidence of P.W.1 (3rd Plaintiff) was to the effect that he came to know that during the year 1987 the Appellant/Defendant made an attempt to construct a building in his place and therefore, he brought a Surveyor to measure the same during the year 1987 and that he had been to France in the month of June and returned to India on July 28th and in his property the Appellant/Defendant had constructed a house to an extent of 72/5 square feet and completed the same and that the 2nd Respondent/2nd Plaintiff was in employment at Karikal and that the 4th Respondent/ 4th Plaintiff was residing at Ezhil Nagar Rainbow Nagar and that he had filed a suit to evict the Appellant/Defendant from the portion encroached by him.
29.P.W.1 (3rd Plaintiff), in his cross examination, had deposed that he had not filed any document to show that the suit property was their ancestral property and that his grandfather's father Muthukrishna Gounder had no documents and further that he had not produced any proof to show which were the L.Rs. of Muthukrishnan and that he had not filed the partition deed and added further, he had not filed any documents to prove that Veerapadiran was the son of Murugesa Gounder but there were documents.
30.P.W.2, in his evidence, had stated that the Respondents/ Plaintiffs and the Appellant/Defendant are his sister sons and that his house was situated on the south of his house of the Appellant/ Defendant and that the suit properties originally belonged to Ariyaputhiri and it belonged to Muthukrishna Gounder and the Veerapadiran had four sons and Veerapadiran's father was Murugesan and they divided the properties orally and that the parapet wall constructed by the Appellant/Defendant belonged to the Respondents/Plaintiffs father and on the upper portion of Veerapadiran's share, the Appellant/Defendant's father's portion was there and in the suit property, the Appellant/Defendant had constructed a building and the Appellant/Defendant had encroached upon an extent of 5 feet on the east-west and 30 feet on the south-north by constructing a shop and in the rest of the portion, the Respondents/Plaintiffs had let out to a fire hood shop.
31.In cross examination, P.W.2 had deposed that Lakshmanan Gounder was in enjoyment of the suit property and that the said Lakshmanan Gounder purchased the property from Subraya Gounder and that the Lakshmanan sold the property to the Appellant/ Defendant.
32.P.W.3 in his evidence had mentioned that in the Respondents /Plaintiffs place, the Appellant/Defendant had constructed a building by encroaching a portion of 60.48 feet of land and in the 5 feet land a big building was constructed by the Appellant/Defendant and in one portion of the suit property a fire hood shop was run by the Respondents/Plaintiffs under their direction.
33.In his evidence, D.W.1 (Appellant/Defendant) had deposed that his father's side grandfather's name was Ariyaputhiri and that a patta for the suit property was not in the name of the plaintiffs and that the patta for the suit property stood in his name and that he had purchased the suit property as per Ex.B.1 Sale Deed dated 22.03.1975 (measuring an extent of 2 kulies and 13 visams) and that he purchased a vacant land of 3 kulies near the suit property as per Ex.B.2 Sale Deed dated 06.11.1971 and that in the year 1972, he constructed a house in B.2 property by including the property mentioned in Ex.B.1 Sale Deed.
34.The evidence of D.W.1 (Appellant/Defendant) would also proceed on the footing that the value of the suit property was Rs.36,000/- and in the disputed portion of property, he was running a mosaic industry and that he had shown the documents before the Commissioner and for the building, he was paying the tax from the year 1972 and that he had constructed the building in the year 1972 itself.
35.C.W.1 (Advocate Commissioner), in his evidence, had deposed that he was appointed in I.A.No.2588 of 1990 as Commissioner to identify and locate the suit property and to measure the properties with reference to cadaster number and the corresponding R.Survey number of the documents of both parties and further to note whose document covered the suit property apart from the physical features and to file their report. His Report was marked as Ex.C.1 and Ex.C.2 was the Sketch and since he had wrongly mentioned the cadaster number, he had filed the amended sketch with correct cadaster viz., Ex.C.3.
36.Continuing further, it is the evidence of C.W.1 that as per the matrice cadaster, the extent of property was 2 ares and 15 c.ares. and as per enjoyment, the Respondents/Plaintiffs are only enjoying the 1 are and 70 c.ares and there was a shortage of area of 45 c.ares in R.S.No.232/1B and as per the title deeds of the Appellant/Defendant, he is only entitled to 2 ares and 1 S.are and that the Appellant/ Defendant was enjoying the property to an extent of 3 ares and 3 S. are in R.S.No.232/1 A/3 and in Ex.C.3-Sketch the encroached portion was mentioned as R.1 and R.2 portion was a vacant place and in R.1 there was a construction and the extent of R.1 was 36 S.ares and the extent of R.2 was 9 S.ares and that the title encroached area was 45 S.ares and R.2 was acquired by the Government of Pondicherry for road purpose and 36 S.ares was encroached by the Appellant/ Defendant.
37.C.W.1, in his cross examination, had mentioned that two items of property were mentioned in Ex.B.2-Sale Deed dated 06.11.1971 and the total extent of two items of property was 3 kulies and at the time of measuring the property, the two items of property in Ex.B.2-Sale Deed were not included and further that one item of property was omitted by the Surveyor and an extent of 2 kulies of land was not situated next to the plaintiffs' property.
38.Through Exs.A.6 and A.7-Documents (xerox copies) issued by the Assistant Director of Archives, National Archives of India, Record Centre, Pondicherry, it is evident that the Appellant/Defendant's father Loganatha Gounder was the son of Ariyaputhiri. Significantly, the Appellant/Defendant as D.W.1 also, had, in his evidence, admitted that his father's name was Loganatha Gounder. A perusal of Ex.A.2-Patta dated 28.12.1977 showed that it is stood in the name of Murugesan in respect of land bearing Registration No.1862 4/5 and 1861 bis 6/6 measuring 0.00.70 Ca and 01.45 Ca and in all, an extent of 0.02.15. Apart from Ex.A.2-Patta, Exs.A.6 and A.7-xerox copies of records issued by the Assistant Director of Archives, National Archives of India, Pondicherry unerringly point out that the plaintiffs' grandfather Murugesan was the owner of the land bearing Registration No.1862 4/5 and 1861 bis 6/6. As a matter of fact, in Exs.A.2, A.6 and A.7 the measurements and cadaster numbers were in agreement.
39.Indeed, the Advocate Commissioner (C.W.1) was assisted by the Surveyor and that he would identify the exact location of the disputed property and the surrounding one. The Cadaster No.1862 4/5 and 1861 Bis 6/6 were correlated to R.S.No.232/1B, which was situated to the East of R.S.No.232/1/A/3 which was correlated to Cadaster No.1861 Bis 4/6 and 1862 5/5pt. A combined reading of the evidence of C.W.1 as well as the Surveyor's Sketch would prove the factum that the Respondents/Plaintiffs were in possession of an extent of 1 Are 70 only instead of 2 areas and 15 santhiars to which they were entitled to as seen from Exs.A.2-Patta, A.6 and A.7-Xerox copies of Documents issued by the Assistant Director of Archives, National Archives of India, Record Centre, Pondicherry.
40.In Ex.B.2-Sale Deed, the two properties comprised in Cadaster Nos.1861 Bis 6/6 and 1862 were formed part of a land near the Pondicherry-Dindivanam Road running from East to West. The disputed property was situated to the South of the Pondicherry-Dindivanam Road. The Surveyor after measuring the property found that the cadaster numbers mentioned in Ex.A.2-Patta was corroborated to Survey No.232/1B and also R1 portion the disputed area shown in R.S.No.231/1/A/3, in the re-survey plan. The western part of the Cad. Numbers mentioned in Ex.A.2-Patta shown as R.S.No.232/1/A/3 actually had caused discontent between the parties to the litigation only. When R1 portion forming part of the Eastern portion of R.S.No.232/1/A/3 was included to R.S.No.232/1B, the measurement would not agree with that of the one mentioned in Ex.A.2-Patta.
41.The Appellant/Defendant raised the construction in R1 portion. By placing reliance on the old matrice cadaster, the Respondents/Plaintiffs clearly established that the R1 portion was covered in Ex.A.2-Patta and also Ex.A.6 and A.7-xerox copies of documents produced from the office of Assistant Director of Archives, National Archives of India, Record Centre, Pondicherry.
42.In Ex.B.2-Sale Deed dated 06.11.1971 the first item bearing Cad.No.1861/Bis/5/6 measuring 2 kulies was excluded from measurement and the old paimash numbers were also described therein.
43.The Commissioner and the Surveyor, after measuring the property, came to the conclusion that the 1st item in Ex.B.2-Sale Deed dated 06.11.1971 was not the property situated to the western side of the disputed property R.S.No.232/1/A/3 which was not correlated to Cad.No.1861/B/5/6. Surprisingly that in Ex.B.2-Sale Deed dated 06.011.1971, the prior title deed was not made mention of. In Ex.A.6-xerox copy of document, the Cad.No.1861 5/6 stood in the name of Ramasamy Gounder, brother of the Plaintiffs' grandfather Murugesa Gounder. It was not made clear as to how the father of Lourdusamy, Vendor of Ex.B.2-Sale Deed became the owner of the suit property. The second item of the suit property bearing the Cad.No.1862 was without any sub division. Even during the year 1932 Cad.No.1862 was divided into 5 sub divisions as seen from Ex.A.7-xerox copy of document, which stood in the name of Murugesa Gounder, his brothers and relatives. Ex.B.1-Sale Deed dated 22.03.1975 was after Ex.B.2-Sale Deed dated 06.11.1971 and it spoke of an area of 2 kulies 13 visams in Cad.No.1861/Bis/4/6. In terms of Ex.A.6 the property was in the name of Subarayan and the earlier title deed to Ex.B.1 which is Ex.B.17 (the translation copy of Ex.B.17 viz., Ex.B.18) would clearly point out that Subaraya Gounder sold the property to Ramasamy Gounder's son Lakshmanan Gounder. As per Ex.B.17, the extent was located to the South of Dindivanam Road. However, in Ex.B.1-Sale Deed, the said area was mentioned as situated to be South of the land belonging to one Ambiga and Kannan. To put it shortly, the boundaries in Ex.B.17 and Ex.B.1-Sale Deed, they do not synchronise. Therefore, it could safely be concluded that the properties mentioned in Exs.B.1 and B.2-Sale Deeds dated 22.03.1975 and 06.11.1971 were not specified without any ambiguity or doubt.
44.As seen from Ex.A.3-Letter dated 29.4.1987 sent by the Office of the Survey Land Records to the 3rd Respondent/3rd Plaintiff, Ex.A.4-Receipts issued by the Directorate of Survey and Land Records to the 3rd Respondent/3rd Plaintiff dated 07.05.1987 and Ex.A.5-Letter sent by the Deputy Surveyor of Survey Department to 3rd Respondent/ 3rd Plaintiff dated 19.5.1982, candidly establish that during the year 1987, the Surveyor of the Survey Department had measured the disputed property. Exs.B.4 to B.16-House Tax Demand Notices, House Tax Receipts etc. relate to the superstructure put up by the Appellant/Defendant. In Ex.B.8-Form B Notice issued by the Oulegarat Commune Panchayat Office dated 14.5.1984 and in Ex.B.9-Form B Notice issued by the Oulegarat Commune Panchayat Authority dated 14.5.1984, the Madras terraced Building was made mention of. But in Ex.B.10-Form B Notice issued by the Oulegarat Commune Panchayat Authority dated 14.9.1984, the said Madras terraced building was referred to. During the year 1984, in one portion of the property, there was a Madras terraced building and in another portion of the property, there was a thatched structure. It is the evidence of P.W.1 (3rd Respondent/3rd Plaintiff) that the Appellant/Defendant during the year 1987 trespassed into the R.1 disputed portion. Only when the Appellant/Defendant claimed right over R.1 area, the Respondents/ Plaintiffs sought the aid of Survey Department in connection with the measurement. The R.1 area in re-survey was said to be in Appellant/ Defendant's enjoyment. But the actual superstructure was raised in the year 1987. Furthermore, Ex.A.3 to A.5 go to prove that the Appellant/Defendant committed an act of trespass into R.1 disputed portion.
45.It is to be noted that the mandatory injunction is one which orders the doing of some positive act by a Defendant, at times changing the status of the persons. However, a plea of mandatory injunction does not extend so far as to status of parties but only restores the Plaintiff is to their original position as per Section 39 of the Specific Relief act, 1963. Section 39 of the Specific Relief Act reads as:
"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 issue an injunction to prevent the breach complained of and also to compel performance of the requisite act. Also, a mandatory injunction may be in the alternative form, but it must command something to be done, and with such positiveness as not to leave compliance with the mandate wholly at the pleasure of the persons enjoined H.C. Joyce on injunction."
46.A mandatory injunction relief can never be a vague one. It can be issued to compel the execution of certain work. The jurisdiction to grant a mandatory injunction relief is to be exercised with caution and be strictly confined to cases where the remedy by damages is not adequate for the purpose of justice, and restoring things to their former condition is the only remedy which will specify the requirements of the case as per Colls V. Home & Colonial Stores 1904 AC 193.
47.In Jagabandhu V. Rajmohan 78 Ind Cas 599, it is held that 'a mandatory injunction is a most exceptional remedy and only one which is never to be applied except with the greatest safeguard for the prevention of waste as well as injustice'.
48.When a mandatory injunction is ordered as per Section 39 of the Specific Relief Act, 1963, two things are to be taken into account; (1) The Court has to determine what acts are necessary in order to prevent the breach of obligation whether arising out of a contract or tort; (2)The requisite acts must be such as the Court is capable of enforcing, as per decision Lakshi V. Tara Prosanna 31 C 944: 8 CWN 710.
49.In the decision Shibsaran V. Amir 1900 AWN 190, 191, it is observed that the granting or refusal of mandatory injunction is always a matter of discretion of the Court which is asked to grant such an injunction. The considerations which apply to the grant of a mandatory injunction are somewhat different from the considerations which govern the grant of prohibitory injunction although the general principles for the grant of both types of injunctions are essentially the same as per decision Puranchand V. Nitya Nand AIR 1958 Punjab 460.
50.In order to secure the relief of mandatory injunction, the right, to restrain the violation of which the injunction is asked for, ought to be clearly made out; also that there is a present want to use that right, with which the obstruction complained of is an interference as per decision Bradburn V. Morris 3 Ch D 812. The relief by way of mandatory injunction is limited to cases of probability of extreme or very serious damage as per decision Darnell V. Pritchard 35 LJ Ch 223.
51.The relief of mandatory injunction shall be granted where damages will be no adequate remedy as per decision of this Court Ramsubbier V. Shenbagaratnam AIR 1927 Mad 357. The relief of mandatory injunction shall be ordered where a legal right of the Plaintiff is affected. Even a threat of invasion of right will warrant the relief of mandatory injunction being granted as per decision Meghu V. Kishun Ram AIR 1954 Patna 477.
52.If a Defendant has encroached upon the Plaintiff's properties without right or an excuse, or has interfered with his rights or changed the condition of his own property, then, mandatory injunction shall be issued as a general rule. In such a situation, the Defendant cannot approach a plea of equity against the Plaintiff's claim of restoration of property to the state it was in before the wrong was done, as per decision Linch V. Union Institute 159 Mass 406, 408. If injury constitutes a perennial trespass upon the plaintiff's right a mandatory injunction shall be issued as per decision Mool Chand V. Chhoga ILR 1961 Rajesthan 836: AIR 1961 Rajesthan 25.
53.If the purpose is dishonest or knowledge of trespass is brought home to the Defendant mandatory injunction shall issue and compensation is no remedy as per decision Lalji V. Vishwa Nath AIR 1929 Bombay 137. The removal of encroachment, by a mandatory injunction, is normally the rule. The consideration of Defendant's inconvenience is not material. Moreover, the plea that plaintiff's injury is not serious, is also not relevant. A mere delay in praying for the relief or sufferance of injury for a long period will not justify a refusal of relief. In a case where a sign has been erected in 1950 encroaching upon the Plaintiff's property by 8 inches to his knowledge and in the year 1955 when a notice of removal has been given by the Plaintiff, the Court granted the relief of mandatory injunction and not the compensation as per decision Kelsen V, Imperial Tobacco Company Limited (1957) 2 All ER 343.
54.In the present case on hand, in the absence of any other documents, like Sale Deeds or antecedent title deeds, this Court opines that Exs.A.2, A.6 and A.7 could be relied upon, since they establish that R.1 portion was covered under these documents.
55.Coming to the plea of the Appellant/Defendant that the First Appellate Court had not considered the fact that the Respondents/ Plaintiffs kept quite for nearly 12 years before projecting the present suit in the year 1989, it is to be pointed out that Article 2262 of the Fresh Civil Code enjoins that 'All rights of action whether in rem or in persenam are extinguished by prescription after thirty years. Further, the person who sets up a title by prescription for thirty years is not obliged to rely on any title; nor can a plea alleging bad faith be set up.'
56.The Learned First Appellate Court, in para 13 of its Judgment in A.S.No.78 of 1996, had observed as follows:
"At the outset itself I have to cite the decision of the Madras High Court delivered on 16.03.1992 in C.R.P.No. 3391/91 (it is unreported decision). The said decision categorically highlights the fact that even though by virtue of Section 29(2) of the Limitation Act, 1963, the provisions of Limitation as envisaged in French Laws as special law would be applicable to Pondicherry, yet when there is no specific period of limitation contemplated in the French law in regard to a case then straightway the residuary Article 2262 of the Code Civil should not be restored to for invoking 30 years' limitation period.
In this connection the decision of the Hon'ble Madras High Court is relevant. The unreported decision is dealing with the French law of limitation. The interpretation adopted by his Lordship in that case is binding on this Court even though the facts of the case are different.
An excerpt from His Lordship's Judgement is as follows:
"I am of the view that the position in law is very clear. The Indian Limitation Act 1963 is applicable to the territory of Pondicherry from 1.1.1964. The code of Civil Procedure was extended to the territory of Pondicherry from 1.8.1966. Hence, in the present case, the Indian Limitation Act as well as the Code of Civil Procedure will apply. Under the relevant provisions of the Indian Limitation Act, the period for filing an application to bring on record the legal representatives in 90 days (Article 120 of the Limitation Act) and the period prescribed for setting aside abatement of suit is 60 days. (Article 121 of the Limitation Act). According to learned counsel for the respondents, by virtue of section 29(2) of the Indian Limitation Act, French Code Civil being a local law will apply to the present case. Under that section, if a period of limitation different from the period prescribed by the schedule to the Act is provided by any special or local law for any suit, appeal or application, then the provisions of section 3 of the Act shall apply as if such period were the period is prescribed by the schedule. It is argued that Article 2262 of the French Code Civil prescribes the period of limitation for a petition to bring the legal representative on record and a petition to set aside abatement of suit. The said Article reads as follows:-
'All rights of action whether in rem or in persenam are extinguished by prescription after thirty years. The person who sets up a title by prescription for thirty years is not obliged to rely on any title; nor own a plea alleging bad faith be set up'."
57.It is to be borne in mind that in the present case on hand, the 30 years period had not expired from the date of re-survey and also from the date of receipt of Exs.B.1 and B.2-Sale Deeds dated 22.03.1975 and 06.11.1971. Consequently, the issue of Limitation could not be raised by the Appellant/Defendant. Equally, it was not open to the Appellant/Defendant to claim the prescriptive title in his favour, in respect of the suit property.
58.At this stage, it is not out of place for this Court to point out that the principles of a Court of Law in regard to delay and acquiescence not only apply to the cases of perpetual injunctions, but also to the cases of interlocutory injunctions. However, in a suit for an injunction, a stronger case of acquiescence was necessary to cause the suit to be dismissed at the hearing, than that which will suffice to prevent the Plaintiff from obtaining an interlocutory injunction, as per decision Johnson V Wyatt 33 LJ Ch 394 : 9 Jur NS 1333. It cannot be gainsaid that there is a distinction between the effect of acquiescence, upon a motion for an injunction and that upon a demurrer; in the earlier case acquiescence only prevents the special protection by injunction, in the latter, it must be such as to disentitle the Plaintiff to any relief whatsoever as per Joyce on injunction at page 1034.
59.The term 'acquiescence' differs from confirmation on the one side and from the mere delay on the other. While confirmation implies a deliberate act, intended to renew and ratify a transaction known to be voidable, but recognising the transaction as existing and intended in some extent atleast to carry into effect, and to obtain or claim the benefits resulting from it, as stated in Pomeroy's Equity Jurisprudence. Acquiescence consists of mere silence and it will operate as a true Estoppel in Equity to preclude a party from asserting a legal title and rights of property real or personal, a right of contract. No person could be deprived of his equitable remedy on the ground of acquiescence, unless it was shown that he had knowledge of his rights (vide Tagore Law Lectures 1906 page 381: Gopalnarain, in re 14B LR 35). A Court of Law would not act upon light grounds against the legal rights of the parties and it required a strong case to lead the Court to deprive of a party to his right at law to prevent a particular act being done or his right to recover damages if it be done as per decision Jones Bros (Holloway) V. Woodhouse (1923) 2 KB 128.
60.In short, on the basis of the facts and circumstances of the present case, this Court holds that there was no acquiescence or latches on the part of the Respondents/Plaintiffs.
61.At the risk of repetition, it is to be pointed out that P.W.1 (3rd Respondent/3rd Plaintiff), in his evidence, had deposed before the trial Court that the Appellant/Defendant made an attempt to construct a building during the year 1987 about which he came to know and in 1987 itself he made arrangement to measure the property with the help of Surveyor and at the time when Surveyor came to the suit property, he had been to France in the month of June and returned to India during 28th July and in his property, the Appellant/Defendant had completed the construction of the building, by encroaching an extent of 72/5 square feet. Therefore, it could not be said, by any stretch of imagination, that the First Appellate Court had not considered the question of acquiescence before granting a Decree for mandatory injunction. Accordingly, the Substantial Question of Law is answered against the Appellant/Defendant. Consequently, the Second Appeal fails.
In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs.
sgl To
1.The I Additional Subordinate Judge, Pondicherry.
2.The II Additional District Munsif Court, Pondicherry