Madras High Court
Venkatesan vs Kuttiappa Gounder (Died) ..1St on 24 April, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :24.04.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1153 of 1997 1.Venkatesan 2.Sri Arulmigu Karivaradharaj Perumal Koil Kolappallur Village, through its Executive Trustee, C.Jayapal ..Appellants/Respondents 1 & 2/Defendants 2 & 3 Vs. 1.Kuttiappa Gounder (Died) ..1st Respondent/Appellant/Plaintiff 2.The State of Tamilnadu - represented by its District Collector, Periyar District & Erode. ..2nd Respondent/3rd Respondent/4th Defendant 3.The State of Tamilnadu Hindu Religious & Charitable Endowment Department by its Commissioner, Madras. ..3rd Respondent/ 4th Respondent/5th Defendant 4.Sundaram ..4th Respondent/5th Respondent/6th Defendant 5.Iraivan ..5th Respondent/6th Respondent/7th Defendant 6.Palaniammal, W/o.Late Perumal ..6th Respondent/7th Respondent/8th Defendant 7.Palaniammal, W/o.Late Kuttiappa Gounder 8.K.Vairamani ..Respondents 7 & 8 (RR 7 & 8 are brought on record as LRs of the deceased 1st Respondent vide order dated 19.2.2008 in CMP.No.589/2008) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 03.04.1996 in A.S.No.46 of 1995 on the file of the Learned Subordinate Judge, Gobichettipalayam, in reversing the Judgment and Decree dated 20.03.1995 in O.S.No.149 of 1988 on the file of the Learned District Munsif, Gobichettipalayam. For Appellants : Mr.K.Ramachandran For 1st Respondent : Died (Steps taken) For Respondents 2 to 6 : Dismissed vide Court Order dated 25.04.2007 For Respondents 7 & 8 : Mr.S.R.Balasubramanian Government Advocate J U D G M E N T
The Appellants/Defendants 2 and 3 have preferred the present Second Appeal as against the Judgment and Decree dated 03.04.1996 in A.S.No.46 of 1995 passed by the Learned Subordinate Judge, Gobichettipalayam.
2.The Plaint Facts [projected by the 1st Respondent/ Plaintiff]:
(i)The suit landed property described in the Plaint Schedule is the absolute property of the Plaintiff. The cart track mentioned in the description of property is situated in poramboke land belongs to the Tamil Nadu Government. The dispute is in regard to the cart track which is called as suit property. The suit agricultural landed properties belonged to the 1st Respondent/Plaintiff as per Sale Deed dated 09.05.1967. Ever since the Sale Deed dated 09.05.1967 the 1st Respondent/Plaintiff is in possession and enjoyment of the suit agricultural landed properties T, Q, P, O, V, U as shown in the Plaint plan with the help of the suit cart track ABDEIMRSWX. The suit cart track is in existence time immemorial. As such, the suit cart track is in existence prior to the 1st Respondent/Plaintiff's Sale Deed dated 09.05.1967. The 1st Respondent/Plaintiff purchased the suit agricultural landed property through a Sale Deed dated 09.05.1967 mentioning the suit cart track.
(ii)The suit cart track is running in R.S.F.No.305/1 a poramboke land. In that land, an Angalammal temple and Karivaradharaja Perumal temple have been situated in a good condition and both are ruined now. Both the temples have been situated on the south-western side of the suit cart track i.e. within the place MNOPUS as shown in the plaint plan. The temples are not in any way hindrance to the suit cart track at any point of time. The Plaintiff and the Defendants are not entitled to any right or title over the suit cart track except the right of enjoyment as cart track.
(iii)The 1st Defendant constructed a house on the southern side of the suit cart track within the place AA, YZ as shown in the plaint plan. The 2nd Defendant is the poojari of Karivaradharaja Perumal temple and Angalammal temple and he resided at the temple itself. Just six months ago, he constructed the house FGJK as shown in the plaint plan on the western side of the cart track leaving 12 feet breadth GHIJ as shown in plaint plan. Since the 12 feet breadth place GHIJ as mentioned in the plaint plan is sufficient to take the carts, cattle, men and material etc., the 1st Respondent/Plaintiff has not objected the 2nd Defendant to construct the house and living thereon.
(iv)Due to recent enmity and on the instigation of the enemies of the 1st Respondent/Plaintiff, the 1st Appellant/1st Defendant cut the suit cart track force at point 'C' and tried to dug a pit on 24.03.1988 by about 10.00 a.m. The Plaintiff with the help of his servants stopped the 1st Defendant from digging pit in the suit cart track. But the 1st Defendant cut the suit cart track force at point C to a breadth of 4 feet. After the intervention of the 1st Respondent/Plaintiff, the 1st Defendant kept quite. Hence, the 1st Respondent/Plaintiff returned to his land i.e. the suit agricultural landed property wherein he is residing. On 25.03.1988 morning, the 1st Respondent/Plaintiff have seen pandals at point JGHI and RQCS as shown in the plaint plan, that too put across the suit cart track so as to obstruct the 1st Respondent/ Plaintiff from using the suit cart track. The 1st Respondent/Plaintiff met the 1st Appellant/2nd Defendant and when he questioned about the pandals, later replied that he will not allow the 1st Respondent/Plaintiff to use the cart track as before. The Defendants are not entitled to obstruct the suit cart track in any manner.
(v)The 1st Appellant/2nd Defendant with his family members are threatening the 1st Respondent/Plaintiff not to use the suit cart track. The 2nd Defendant is added as a family manager to represent his family members. The 1st Respondent/Plaintiff has got no other cart track except the suit cart track to reach the main road and etc. The suit cart track is the only cart track available to the 1st Respondent/ Plaintiff to transport his agricultural products etc. to the nearby market. He apprehends that the Defendants may further do damage to the suit cart track. Therefore, it is just and necessary to restraint the Defendants from putting up any obstructions in the suit cart track ABDEIMSRQUWX as shown in the plaint plan by way of granting permanent injunction.
(vi)Without removing the pandals at points GHIJSRQU as shown in the plaint plan, the 1st Respondent/Plaintiff cannot use the suit cart track in any manner. Hence, it is just and necessary to grant mandatory injunction with a direction to remove the pandals at Point GHIJ and SRQU as shown in the plaint plan within a reasonable period or otherwise to do the same through court.
(vii)The 3rd Defendant is instigating the Defendants 1 and 2 to obstruct the cart track without any basis. Hence, it is added as a party to the suit. Therefore, it is just and necessary to restrain the 3rd Defendant from instigating and putting up any construction in the suit cart track or from interfering in any manner with the 1st Respondent/ Plaintiff's peaceful user of the suit cart track in any manner. Hence, the suit has been laid by the 1st Respondent/Plaintiff seeking the relief of mandatory injunction and for permanent injunction.
3.The Written Statement Pleas of 1st Appellant/2nd Defendant [adopted by Defendants 6 to 8]:
(i)The suit is not maintainable in law or on justice. In plaint, the 2nd Defendant has been wrongly described as Family Manager. He is not the Family Manager. He is not living as a family or as a joint family. Therefore, it is not proper to file a case against him and also against his family members.
(ii)In Plaint para 5, it is clearly admitted by the 1st Respondent/ Plaintiff that the suit cart track is in poramboke. As such, as against the Defendants the suit is filed for interim injunction and the application filed thereto are not maintainable. The suit ought to have been filed as against the HR & CE Department. If any suit is filed other than HR & CE Department that will not bind the aforesaid parties. In Government Survey No.305/1 punja hectare 0.38.0 temple poramboke has been allotted to the 2nd Defendant for performing poojas to the temple. Also, the cart track has been formed in order to proceed to the temples and the same is in use. The way track or the cart track has not been formed so as to enable the 1st Respondent/ Plaintiff to proceed to his lands and it is not used by him on the north-south Angala Amman Perumal temple there is no cart track on east-west direction. The 1st Respondent/Plaintiff has to take his cart and cattle up to the portion of the temples and thereafter to reach his land. Likewise only the ancestors have enjoyed the same. Temple poramboke land cannot be used by the 1st Respondent/Plaintiff as cart track. On the southern side of the temple, there is a path way. To state that there is a permanent cart track for longer period is a false one.
(iii)With the permission of the HR & CE Board, the construction of temple works have begun. Only to cause obstruction to the said act, the present suit has been filed. The plan filed along with the plaint is a wrong one. Cart and other vehicles have not passed through the way in front of the temple. In suit plan SPQLOP portion at any point of time, there is no cart track. In PSO portion there is no pandal. The portion shown as suit cart track is not a cart track till and it is also not used in that fashion. In revenue records, it is mentioned as poramboke belonging to the temple.
(iv)In Government Survey No.305/1, the 1st Appellant/2nd Defendant has constructed his house and also raised a compound wall which is not a hindrance to the cart track. The wall of 'AA' has been built on east-west side, the 20 feet breadth A, B portion cart track is not obstructed by the Defendants to be made use of by the 1st respondent/Plaintiff. The 1st Respondent/Plaintiff has no right to claim that the 1st Appellant/2nd Defendant cannot construct a house or wall. There is no connection between the house site and the suit cart track. Similarly 'GHIJ' portion is the front portion of the 1st Appellant/2nd Defendant only on the eastern side there is a cart track. In 'C' portion the 1st Appellant/2nd Defendant has not made an attempt to dug a pit. The 1st Respondent/Plaintiff has no right to prevent the 1st Appellant/ 2nd Defendant to do his acts. The 'GHIJ' is one portion. Another portion is 'SRQU'. The two portions are in different places. Even in suit plan it is described in that manner.
4.The Written Statement Pleas of the 3rd Defendant:
(i)The suit property belong to the temple. The property is the temple poramboke land. In the suit property, there is Karivaradharaja Perumal temple and another Angala Amman temple. The temple i.e. Perumal temple is under reconstruction and renovation. The Archakas of the temple are staying in the suit poramboke land in the houses built for their residence. The 1st Appellant/2nd Defendant is Archaka and performing pooja for the temple and he resides in the house. There is a pathway from the main road 'AB' shown in the plaint plan leading to the temple in the suit poramboke land. The villagers reach the temple and worship God. Poojas are also performed regularly by Archakas who are appointed by the officers of the Department. The administration of the temple and the poramboke suit land are looked after by HR & CE Board.
(ii)The 1st Respondent/Plaintiff is not entitled to take carts through the points described in the plaint and plan. He has not taken at any time the carts, cattle through the purported suit cart track. There is only a pathway in front of the temple. The land S.F.306 belongs to the 1st Respondent/Plaintiff. He can reach through his land and he has been reaching only through his patta lands and never used 'SPQLOR' portion mentioned in the plaint plan. There is no necessity for him to use the front portion of the temple. He has no right to convert the front portion of the temple which is also 'Temple Poramboke' as cart track.
(iii)The 1st Respondent/Plaintiff has purposely suppressed the lands owned by him on the eastern side of the temple. Beyond 'IJK' the 1st Respondent/Plaintiff need not proceed further in the suit poramboke land, since he can reach his patta land on the east from there, he can go anywhere in his land. He has been passing through only all these days in that fashion. The 1st Respondent/Plaintiff cannot ask for removal of pandal 'GHIJ SRQU' portion. Further, the temple has already filed a suit O.S.No.153 of 1989 as directed by the Department. The suit ought to have been filed for declaration of the right and therefore, the suit is bad without such a prayer and as such, the suit is dismissed in limini. There is no cause of action for the 1st Respondent/ Plaintiff to file the suit.
5.The Written Statement Averments of the 4th Defendant:
The Plaintiff has a right in Government S.F.No.306 measuring 3 acres and 61 cents. The Plaintiff has to proceed to his land by taking the cart and vehicles through Government Survey No.305/1 which is described as temple in village accounts. In Kolappalur village Government Survey No.305/1 is mentioned as 'Temple' in village accounts. In Government Survey No.305/1, pathway gets divided from Gopi-Kolappalur Highways and proceeds on the eastern direction and it also proceeds on the southern side upto the temple and in village accounts, it is described as 'Way'. In this poramboke land, 13 people have constructed house and have encroached and also indulged in cultivation all these encroachments are considered to be objectionable.
(ii)The 1st Appellant/2nd Defendant in Government Survey No.305/1 has constructed a house in 0.03.5 hectare by encroaching the same. The 1st Appellant/2nd Defendant in Government Survey No.305/1 measuring 0.02.0 hectare has encroached the land and has constructed a tiled house and also put a roof, hut in the front portion. 'B' memo has been issued for these encroachments and they are objectionable. The Angala Amman and Karivaradharaja Perumal Temples are in good condition and maintained by the HR & CE Department, no one can claim a right in this regard. To remove the encroachments in the temple land, actions are being taken. The 1st Respondent/Plaintiff has no right in the poramboke land and therefore, he has no locus to speak about the others encroachments Government Survey No.305/1 measuring 0.38.0 hectare of land is a temple poramboke one. As per Tamil Nadu Land Encroachment Act, 1905 the encroached portions are considered as 'Temple' and proceedings have been initiated only from the HR & CE Department, the 1st Respondent/ Plaintiff is to obtain the relief. The 1st Respondent/Plaintiff has no right to file a suit. The cause of action is a false one.
6.Before the trial Court, the 1st Respondent/Plaintiff (later deceased) filed O.S.No.149 of 1988 praying for the relief of mandatory injunction directing the Defendants to remove the pandals put up at point GH and RWRIX as described in the plaint plan within a reasonable time to be prescribed by the Court and also sought a relief of permanent injunction restraining the Defendants and their men from putting any obstruction or from interfering with the Plaintiff's peaceful user of the suit cart track in any manner.
7.The 2nd Appellant/3rd Defendant (Temple) represented by fit person has filed O.S.No.153 of 1989 on the file of Learned District Munsif, Gobichettipalayam against one Palanisamy and the 2nd Defendant-Kuttiappa Gounder [who figured as Plaintiff in O.S.No.149 of 1988] praying for the relief of permanent injunction on the basis that the Defendants are making their endeavour to take the bullock cart through the suit land, for which they do not have any right to do so.
8.Before the trial Court, in O.S.No.149 of 1988, I.A.No.681 of 1992 has been filed praying for permission of the trial Court to conduct trial of O.S.No.149 of 1988 and O.S.No.153 of 1989 and to pass a Common Judgment and that the said application has been allowed. As such, the order has been passed to treat the documents and evidence of witnesses to be recorded in O.S.No.148 of 1988 are to be made applicable to O.S.No.153 of 1989 on the file of trial Court. Accordingly, on the side of 1st Respondent/Plaintiff [in O.S.No.149 of 1988] witnesses P.W.1 to P.W.4 have been examined and Exs.A.1 to A.8 have been marked. On the side of Defendants, witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 to B.20 have been marked. On the side of Court, Exs.C.1 to C.4 [Commissioner's Reports and Plans] have been marked.
9.The trial Court, on an analysis of oral and documentary evidence available on record, has held that (a) the suit plan is more or less correct as per the Commissioner's Report and the same is slightly contradictory to that of Ex.B.20-Plan; (b) that the 5th Defendant/HR & CE Department has been arrayed as a party to the suit and therefore, it is not correct to state that suit is bad for non-joinder of necessary party; (c) that the suit has been filed against the Defendants 6 to 8 for their encroachment in the suit cart track and since they are interfering with his peaceful enjoyment and also a relief has been sought to remove the encroachment made by them by means of injunction, it cannot be accepted that Defendants 2, 6, 7 and 8 are unnecessary parties to the suit; (d) that the suit cart track ABCDEMSRWX before filing of the suit is not in existence as prayed for by the 1st Respondent /Plaintiff in the Plaint and also that as per Ex.C.4-Commissioner's Plan the cart track ABCD is in that suit; (e) that the 1st Respondent/Plaintiff is entitled to get the relief of permanent injunction against the Defendants in regard to the use of cart track ABCD as per Ex.C.4-Plan to use the cart track. But as per Ex.C.1-Commissioner's Report dated 22.04.1988 and as per Commissioner's Report dated 13.06.1988 the pandal has been put adjacent to the 2nd Defendant's house and said pandal has not been put under GHIJ portion as stated by the 1st Respondent/Plaintiff and therefore, he is not entitled to get the relief of mandatory injunction. Further, the trial Court has held categorically that the 1st Respondent/Plaintiff and his ancestors have used the suit cart track for long number of years and therefore, as per Ex.C.4-Commissioner's Plan in ABCD portion the 1st Respondent/Plaintiff is entitled to get the relief of injunction as prayed for. But it cannot be accepted that without seeking the relief of declaration, the suit is not maintainable and accordingly, passed a decree to that effect without costs.
10.As regards O.S.No.153 of 1989 filed by the 3rd Defendant (in O.S.No.149 of 1988 as Plaintiff), the trial Court has dismissed the suit without costs.
11.Before the First Appellate Court, the 1st Respondent/Plaintiff [Kuttiappa Gounder-Plaintiff in O.S.No.149 of 1988] has filed A.S.No.46 of 1995 as regards the Judgment and Decree dated 20.03.1995 in O.S.No.149 of 1988 passed by the trial Court. Likewise, the Plaintiff in O.S.No.153 of 1989 [3rd Defendant in O.S.No.149 of 1988] has filed A.S.No.100 of 1995 being aggrieved against the Judgment and Decree dated 20.03.1995 in O.S.No.153 of 1989 passed by the trial Court.
12.The First Appellate Court has tried both the Appeals A.S.No.46 of 1995 and A.S.No.100 of 1995 and on 03.04.1996 has allowed A.S.No.46 of 1995 by setting aside the Judgment and Decree of the trial Court in O.S.No.149 of 1988 dated 20.03.1995 by granting the relief of mandatory injunction as prayed for by the Plaintiff-Kuttiappa Gounder in O.S.No.149 of 1988 and also granted a relief of permanent injunction restraining the Defendants not to interfere with the ABCDEFG portion cart track mentioned in Ex.C.4. It granted three months time to execute the relief of mandatory injunction etc. However, the First Appellate Court has dismissed A.S.No.100 of 1995 thereby confirming the Judgment and Decree of the trial Court passed in O.S.No.153 of 1989.
13.Being aggrieved against the Judgment and Decree passed by the First Appellate Court in A.S.No.46 of 1995 dated 03.04.1996 in reversing the Judgment and Decree of the trial Court dated 20.03.1995 in O.S.No.149 of 1988, the Appellants/Defendants 2 and 3 have focussed the present Second Appeal before this Court.
14.At the time of admission of the Second Appeal, the following Substantial Questions of Law are framed by this Court for determination:
"1.Whether the learned Subordinate Judge, Gobichettipalayam was not in error in granting the relief of Mandatory Injunction without a prayer for the declaration?
2.Whether the learned Subordinate Judge acted erroneously in holding that the plaintiff's rights were conceded by the defendants?"
The Contentions, Discussions and Findings on Substantial Questions of Law 1 and 2:
15.The Learned Counsel for the Appellants/Defendants 2 and 3 submits that the First Appellate Court has committed an error in reversing the Judgment of the trial Court in the main suit declining to grant the relief of mandatory injunction.
16.The Learned Counsel for the Appellants/Defendants 2 and 3 urges before this Court that the Defendants in the Written Statement have clearly mentioned that the use of 20 feet cart track marked as 'AB' in the sketch could always be used by the Plaintiff.
17.Yet another submission made by the Learned Counsel for the Appellants/Defendants 2 and 3 is that the 'Pandal' has been in existence for a very long time and it never caused any obstruction to the 1st Respondent/Plaintiff, but this has not been appreciated by the First Appellate Court in a proper perspective.
18.Proceeding further, the Learned Counsel for the Appellants/ Defendants 2 and 3 contends that it is not correct to come to the conclusion about the existence of cart track for more than 100 to 200 years without any pleading to that effect.
19.Lastly, it is the submission of the Learned Counsel for the Appellants/Defendants 2 and 3 that without a declaratory relief being prayed for by the 1st Respondent/Plaintiff, a relief of mandatory injunction cannot be granted in the suit.
20.Conversely, it is the contention of the Learned Counsel for the Respondents 7 and 8 that the First Appellate Court has looked into the entire gamut of oral and documentary evidence on record in a proper and real perspective and has come to a right conclusion that the 1st Respondent/Plaintiff (since deceased) is entitled to get the relief of mandatory injunction and the relief of permanent injunction, which need not be interfered with by this Court sitting in Second Appeal.
21.For better appreciation of the merits of the controversies/ disputes between the parties, it is essential for this Court to make a useful reference to the oral evidence adduced by the witness on either side.
22.The evidence of P.W.1 (1st Respondent/Plaintiff) is to the effect that as per Ex.C.2-Commissioner's Plan, the suit cart track is proceeding from Kolappalur main road to the eastern side and it turns on the southern side and again it turns around near the Perumal temple and again turns on the southern side and proceeds towards west and comes to his road and further that his land is S.F.No.306 (Old No.204) and is residing in the garden and he has purchased his land as per Ex.A.1-Sale Deed dated 09.05.1967 for a sale consideration of Rs.35,000/- and in Ex.A.1-Sale Deed the suit way is mentioned and there is no other way.
23.P.W.1 has also deposed in his evidence that the said pathway is in existence prior to his purchase and from Ex.A.1-Sale Deed dated 09.05.1967 period is using the way and after his purchase Ex.A.2-Patta has been changed and he is cultivating sugarcane and paddy and he used to take the sale produce through the suit track/way and in the bullock cart he used to load sugarcane at a height of 10 feet and the cart track is in S.F.No.305 and the cart track portion is a poramboke one and the breadth of the cart track is 21 feet on an average and the Defendants near the cart track has constructed a house and dug a fence and the 2nd Defendant has put up a pandal in the track and thereby encroached the same and if there is a pandal, lorry cannot carry the load and at a height of 8 feet pandal has been put and on the eastern side of the Perumal temple there is no pandal and 4 days prior to the suit, a pandal has been put on the eastern side of the temple and the said pandal is at a height of 8 feet and he has shown the track/way to the Commissioner and even after Ex.C.1 he has driven his cart and the act of 2nd Defendant in encroaching in front of his house at about evening 3'o clock is known to Rangasamy Gounder and Palanisamy and therefore, he is not able to take his cart and has prayed for the relief of injunction.
24.Apart from the above, the evidence of P.W.1 is to the effect that the cart track is a poramboke one as per Ex.A.3-Adangal Account Copy and the temple has been constructed by the Government as per Ex.A.4-Land Tax Scheme Registration Copy and initially there has been no encroachment at the poramboke land, as evidenced by Ex.A.5-Cultivation Adangal Accounts True copy and the Government officials have not restrained him from taking the cart in the poramboke land and 3rd Defendant is also objected after hearing the words of 2nd Defendant and therefore, he is added 3rd and 5th Defendants as parties and if a fence is dug up, there will not be any safety to the cart track.
25.P.W.1 adds in his evidence that in the document, it is mentioned as mamul cart track and in the document, it is not mentioned that a cart track is coming through the Government poramboke and that the vendor has informed him that one has come to the land by passing through the poramboke passage. , in the document, it is not mentioned like that and the Commissioner has inspected the suit properties for three times and he has one bullock cart and the same is standing across under the tree for three years and therefore, he is not able to do agricultural operation and that the vendor has returned as mamul cart track since he cannot right his poramboke way.
26.P.W.2 has deposed that the 1st Respondent/Plaintiff has a right in the suit property by virtue of a sale in his favour effected 25 years before for a sale consideration of Rs.35,000/-, he having purchased from one Chettiar and that he has signed as a witness in the Sale Deed and for the past 4 years one is not able to drive the cart and that the 1st Defendant has dug a fence in the cart track by creating pit and that the 1st Appellant/2nd Defendant informed him that he has put up a pandal in the cart track at a breadth of 15 feet and that pandal has been put in two places at a height of 5 feet and because of the pandal lorry, tractor and cart cannot proceed and that the wheel is at 6 feet height and that the cart track is in existence for 50 years and the vendors have used the cart track and later the 1st Respondent/Plaintiff has been using the same for 25 years and there is no other cart track except the suit track.
27.P.W.2 has further deposed that the 1st Appellant/2nd Defendant is residing in the temple and that the priest is residing in poramboke land and that the suit track is a Government poramboke and he has seen the suit cart track by paying a direct visit, at the time of writing of Sale Deed.
28.According to the evidence of P.W.3, on the side of the temple, there is haystack, waste matters and that the cart track is at a breadth of 7 feet and that on the eastern side of the temple entrance, there is a pandal at a height of 5 feet and that the cart track is in existence for 25 years and he used to pass through the said track and the poramboke land is annexed to the temple entrance and that the track is in poramboke and for the past 4 years there is a dispute and before that the carts have been proceeding in the track.
29.P.W.4 in his evidence has stated that the suit cart track is in existence for 60 years and after filing of the suit one is not able to move the cart in the suit track and during the month of April Venkatesan, Perumal, Natarajan, Arumugam, Venkatachalam, Padmavathy and Devi have created trouble and that Arumugam and Venkatachalam they have tied the bullocks thread etc. and that they have fallen down and since they attempted to beat them, they have ran away from the place and therefore, they have not able to take their carts in the suit tracks.
30.D.W.1 in his evidence has stated that he is the fit person of the temple and that he has filed a suit O.S.No.153 of 1989 against Kuttiappa Gounder and Palanisamy and further that the suit temple belongs to HR & CE Department. His appointment order is Ex.B.1 and Survey No.305-1 in Kolappalur village is mentioned as temple poramboke and that there are Angala Amman and Karivaradharaja Perumal Temples, there is a fence and also the Priest's residence and the cart track is coming from Gopi - Dharapuram main road and it proceeds in 'Z' shape and goes in the northern direction upto Perumal Temple and later it goes on the east-west direction and halts there.
31.Added further, it is the evidence of D.W.1 that the suit cart track is in existence for long time and the cart track is for the movement of general public and also for taking the carts and for proceeding to the temple the track is being used and that the 1st Defendant has constructed a house at main road and that he has not encroached the track and that the 2nd Defendant has also not obstructed the cart track.
32.It is the categorical evidence of D.W.1 that he has come to know about the encroachment only after seeing adangal and he does not know directly what is happening in the suit property and that the temple is in existence for 100, 200 years and from that time onwards through the cart track people are moving and on two sides of the cart track there is a fence and that the cart track breadth will be at 15 feet breadth and the 2nd Defendant is the Priest of the temple for 30 years and he does not know whether 2nd Defendant has obtained permission to construct a house in the suit property.
33.Moreover, it is the evidence of D.W.1 that no obstruction is caused for taking the carts and it is not correct to state that when the 1st Respondent/Plaintiff driven the cart at that time the Defendants have obstructed the cart and on the southern side of 1st Respondent/ Plaintiff's land there is a cart track in the odai poramboke and that he has not shown the odai cart track to the Commissioner.
34.D.W.1 (2nd Defendant) has deposed that Karivaradharaja Perumal temple is maintained by HR & CE Department and that in the said poramboke, there is Perumal temple, Angala Amman temple and Priest's residence and there is a cart track and the village people will visit the temple and that he has not obstruct the cart and in the temple construction work is proceeding and that the 1st Defendant has not dug a pit across the suit cart track and his house is shown as an 'encroachment' and that the 1st Defendant has constructed a house in the suit land and he does not know that the said house has been mentioned in the Government accounts as unauthorised encroachment.
35.In Ex.C.1-Advocate Commissioner's Report dated 15.07.1988 (produced on 22.04.1988 before the trial Court), it is mentioned that the suit cart track during the visit of the Learned Commissioner has been marked in red colour in his plan and that the suit cart track is an old one and its breadth varies from 21' to 9' as mentioned in the plan and to reach the 1st Respondent/Plaintiff's land there is no other cart track except the suit cart track.
36.Added further, in Ex.C.1-Commissioner's Report, it is, among other things, mentioned that the Kalli and Kiluva fence have been marked as " x x x x " in the plan and further, between the suit cart track and the 2nd Defendant's house viz., between point A and A1, the cut stems of the fence trees have been noted and on the western wall of 2nd Defendant's house construction work has been carried on during his visit and the southern wall of the Defendant's house is a new one and is a recently constructed one.
37.The Advocate Commissioner in Ex.C.1-Report has also mentioned a thatched pandal marked in black colour in the plan and that the thatched pandal breadth is 10 feet and the length is 57 feet and out of 57 feet, 37 feet is roofed and remaining 20 feet is unroofed and that the thatched pandal is situated in the suit cart track. Moreover, the Learned Commissioner has also noted another thatched pandal on the eastern side of the Perumal temple and the thatched pandal is also situated in the suit cart track and that the length of the thatched pandal is 25 feet and the breadth is 10 feet. The heap of stones in the suit cart track has also been shown in the Commissioner's plan. A pit on the southern and eastern side of 1st Respondent/Plaintiff's land which is about 10 to 15 feet depth has also been noted in the plan and also a mud and stone bund of about 5 feet and about 6 feet breadth in between the pit and the 1st Respondent/ Plaintiff's land has also been noted.
38.In Ex.C.3-Commissioner's Report dated 13.06.1988, it is mentioned that in the first report mistakenly mentioned the '1st Defendant's house' as '2nd Defendant's house' and '2nd Defendant's house' as '1st Defendant's house' in his first report and plan. It is also mentioned that in Ex.C.3-Report that on the eastern side of the Perumal temple, the 1st Respondent/Plaintiff's land is situated and the east-west length of the southern wall of Perumal temple is 95 feet and the eastern wall of Angala Amman temple situate south of the Perumal temple is 30 feet length north-south and 10 feet height. That apart, the Learned Commissioner in Ex.C.3-Report has added that there is a stone imbeded in the earth at point E as shown in his additional plan and the gab between the southern wall of the Perumal temple and that stone is 7 feet and that there is a survey stone on the eastern side on the point 'D'. Also, the distance between that survey stone and stone at point 'E' is 72 feet and on the southern side of points E F. He has noted 7 coconut trees and the gab between the southern wall of the Perumal temple and the coconut tree at point E is 9 feet and there is a east west pathway on the southern side of the Perumal temple i.e. between point E F. But cart can be taken on that portion and that he has not seen any cart wheel marks between point E, F during his re-visit and there is a 'Veli tree' at point F.
39.Furthermore, in Ex.C.3-Commissioner's Report, it is stated that on the eastern side of the Perumal temple there is a 10 feet breadth space under the pandal and in that 10 feet breadth space there is no grass in the floor. But, on the southern side of that pandal there are small grasses on the floor and during his first visit that pandal is intact. But during his re-visit pandal has not been in order and it is ruined in some places and that north-south length of the eastern wall of the Perumal temple is 45 feet.
40.Significantly, in Ex.C.3-Commissioner's Report in para 11, it is mentioned that cart track went upto point 'E'. Only after point E there is no cart wheel marks. But cart can go even after point E upto G and also that there is a gab of 25 feet in front of the pandal situated on eastern side of the 2nd Respondent's house and that the nature of that portion and the rest of the cart track portion upto the eastern side of the Perumal temple is in same condition. The pandal situate east of the 2nd Respondent's house is an old one. In paragraph 16, it is mentioned that there is a cart standing in the cart track 6 feet south of the Neem tree and 9 feet east of the front pandal of the 2nd Defendant's house during the re-visit of the Commissioner and that the tree is standing facing south-east direction and he has also noted a (Vh;) in that cart.
41.At this stage, this Court points out that to obtain the relief of permanent injunction a Plaintiff in a suit has to prove a legal right and its violation. Ordinarily, a permanent injunction or a perpetual injunction once granted will last forever and it is granted by means of a decree passed by a competent court. The term 'Obligation' defined in Section 2(a) of the Specific Relief Act includes every duty enforceable by law. Any individual in the enjoyment of a right may seek for an order of injunction if that enjoyment is interfered with by an individual without title. In order to obtain the relief of permanent injunction, a party must establish that an injunction is required to prevent breach of an obligation. The term 'Obligation' is used by the Indian Legislature in a wider juristic sense which comprises duties arising either ex contractu ex delicto [vide TLL (1906) 2nd Ed. p.19.]. Also, the torts of every kind may also be prevented by an order of injunction as per Woodroffe's Injunctions p.289; I Austin Jur. 90-8.
42.In a case where a Plaintiff establishes his legal right and the fact of its infringement and that further infringement is threatened to a material extent, he is entitled to an injunction to restrain such threatened infringement upon the ordinary legal principles upon which the Court acts in granting injunction as per Halsbury Vol. XVII p.209, citing Martin v Price (1894) 1 Ch 276; per Lindley LJ; followed in Shelfer v City of London Electric Light Company (1895) 1 Ch 287.
43.It is well accepted principle in law that no Court can grant injunction in favour of the Plaintiff which result would be an invasion of Defendant's legitimate right to his own property. But, if on the contrary, it would result in injury and damages which it will not be possible for being compensated in terms of money, then, the relief of permanent injunction can be granted in law, of course based on the facts and circumstances of each case.
44.It is to be borne in mind that while dealing with the case for perpetual injunction on possession, the Court should formulate each party's case on possession and then analyse the evidence as per decision of Hon'ble Supreme Court in Sri Thimmaiah V. Shabira, AIR 2008 SC 1275.
45.In this connection, it is relevant for this Court to quote the decision in Maneklal Harilal and others V. Maneklal Gordhan and others AIR 1932 Bombay 574 wherein it is laid down as follows:
"Where a right of way granted under an award was a passage for ingress and egress with all its connected rights, it is a grant of a general right of way. Where there is an express grant of a private right of way to a particular place to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for the purpose for which the access would be required at the time of the grant. Such a general right of way cannot be fettered by implied restrictions and it includes the right of way for scavengers to cleanse the new privy in defendant's house. Even apart from the inclusion of the right claimed by the grantee in the general right of way granted by the award, he is entitled to the right of way for sweepers as an easement of necessity: 16 Bom. 652, Foll. And A.I.R. 1920 Bom. 233 Dist: Case law referred. [P 575 C 2; P 576 C1]."
46.This Court also aptly points out the decision in E.Elumalai Chetty V. Naina Mudali and others, 1986-Vol-2-MLJ-81 wherein in paragraph 1 and 2, it is held thus:
"The conception of easementary right cannot go with the claim of title and both are contradictory to each other. A title to the property and a right of easement on it are conceptions totally distinct and contradictory to each other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of another. While a right of easement is a right in, to or over the property of another. One is a personal right while the other is annexed to and claimed over the land of another and it runs with it. A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of the other.
To acquire easement by prescription, the user during the statutory period, should have been with the animus of enjoying the easement as such in the land of another, and there must be consciousness and acceptance that the title in the land vests with another and the plaintiff cannot assert title in the land in himself as that would militate against the very acquisition thereof."
47.Moreover, this Court cites the decision in Ibrahimkutty Koyakutty V. Abdul Rahumankunju Ibrahimkutty and others, AIR 1993 kerala 91 wherein it is observed hereunder:
"Suffice it to say, that ordinarily a court can find a case and decree the suit only on the basis of the pleadings of the parties. In a case, where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. There is reason therefor. 'Easement is a precarious and special right. The right of easement is one which a person claims over a land which is not his won. The qualitative and quantitative requirement for the different kinds of easements are to a great extent mutually exclusive. That is the reason why the courts have always insisted that whenever a right of easement is claimed, the pleadings should be precise and clear and not vague."
48.Apart from the above decisions, this Court quotes the following decisions in furtherance of substantial cause of justice:
(a)In K.Sudarsan and others V. The Commissioner, Corporation of Madras and others, AIR-1984-Vol-71-Madras-292, it is held as follows:
"The highway is a passage over which members of the public are entitled to pass and repass. The essential characteristic of a highway is that every person should have the right to use it for the appropriate kind of traffic. The road or part over which only a particular class of people or a few individuals are allowed to pass and repass cannot be a highway. The right of the public to pass and repass extends over the whole width of the highway or the street, in other words over every inch of the street. A members of the public cannot be compelled to confine himself to a part of the street at the choice of another. The owner of a property adjacent to a highway or a public street has got a right of access to such highway or street at any point of which his land actually touches it. His right of access from his premise to the highway and vice versa is a private right. However, his right to use such highway or public street as soon as he is "on the highway" or the public street becomes a public right. Case law discussed."
(b)In Bharathamatha Desiya Sangam, Madhavaram and another V. Roja Sundaram and others, AIR 1987 Madras 183 at page 184 & 185, in paragraph 7, it is observed as follows:
"7. In so far as the right of the first respondent to have access to Sundara Vinayakar Koil Street on the north from every point along A D line is concerned, there cannot be any serious dispute. Though the appellants put forth the plea that originally what is now called Sundara Vinayakar Koil Street was only a battai and not a street as such, no acceptable evidence has been made available to establish that previously there was no street at that place and that Sundara Vinayakar koil Street had been formed only recently. It has therefore, to be taken' that the street had been in existence for a long number of years. The only question is, whether the first respondent has a right of access to the street on the north from every point along A D Line free from the obstructions caused by the appellants and respondents 2 and 3. There is no dispute that Sundara Vinayakar Koil Street is a public street. Owners of houses of premises abutting a roadway are entitled to have access to that roadway from all points on the boundary of their land and if any obstruction is caused over the road margin securing such access, the person entitled to have such access can certainly enforce that right. In Municipal Committee, Delhi v. Mohammed lbrahirn, AIR 1935 Lah 196, it was laid down that to the owners of houses abutting a public highway, the question of frontage means a great deal and if anything is done by those in whom the highway vests which interferes with the rights of the owners with regard to the highway and which tends to diminish the comforts of the occupants of the house, the owners will undoubtedly have an actionable claim against them and in such cases it is unnecessary to prove any special injury. Patna Municipality v. Dwarka Prasad, AIR 19J9 Pat 683 laid down that the owner of the land abutting a roadway is entitled to access to that roadway at all points on his boundary. The availability of such a right was also extended to the occupier of a land adjoining the highway, in Manbhum District Board v. Bengal Nagpur Railway Co., AIR 1945 Patna 200, where it was pointed out that the right of access to the highway at all points where a land adjoins the highway at all points belongs not only to the owner of the land, but also to the occupier and the occupier can sue for removal of obstruction interrupting his right of access to the highway and the fact that the owner or occupier of the adjacent land had fenced it off or raised a wall for his convenience or opened a gateway on the other side cannot affect his right of access to the highway. It would also be relevant in this connection to refer to Mackenzie's Law of Highways, Twenty-first Edition at page -5S where it is stated as follows :
"The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not The right of the owner of land adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access to the highway is obstructed may maintain, an action for the injury, whether the obstruction does or does not also constitute a public nuisance."
Relying upon the aforesaid passage, in Damodara Naidu v. Thirupurasundari Ammal, (1972) 2 Mad LJ 4: (AIR 1972 Mad 386), Raghavan, J., held that where there is a public highway, the owners of land adjoining the highway have a right to go upon the highway from any point on their land; and if that right is obstructed by anyone, the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance. To similar effect' is the decision in Ganapathi Mudaliar v. Ponnusami Koundar, (1970) 2 Mad LJ 295 where it was pointed out that an obstruction caused to the right of access to and from the dwelling house could cause damage directly to the occupiers of houses and a suit could be maintained for the invasion or interference of that right and such a suit will lie without proof of special damage or even without sanction under S. 91, Civil P.C. Therefore, there cannot be any doubt or dispute about the right of that respondent to have access to Sundara Vinayakar Koil Street on the north from every point on A D line.
(c)In Municipal Board of Agra and another V. Sudarshan Das Shastri, AIR 1914 Allahabad 341 at page 342, it is held as follows:
"The Court below has found on this issue that the place on which the plaintiff alleged that hawkers were accustomed to sit was no part of the road; atleast this is what we understand the finding to be. The Court seems to have thought that the only part of the road which could be said to be the public road was the part that was actually metalled. In our opinion this is clearly wrong. We are unable from the maps, and from any information either party can give us, to ascertain with any accuracy the places in which the hawkers sit, but, in out opinion, all the ground, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street. With this explanation we refer an issue to the Court below, namely whether or not the land in dispute is part of the public road."
(d)In The Municipal Board, Manglur V. Mahadeoji Maharaj, AIR 1965 Supreme Court 1147, the Hon'ble Supreme Court has actually observed thus:
"Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user."
(e)In Vasudeva Kurup V. Ammini Amma, 1964 K.L.T. 468, it is held hereunder:
"It seems to be the policy of the Indian Law that a person in possession, albeit without title, is entitled to remain in possession even as against the lawful owner until evicted in due course of law. The lawful owner is not entitled to take the law into his own hands and throw out the person in possession. Under S.54 of the Specific Relief Act, an injunction may be granted not merely to protect a plaintiff's right to property but also to protect his enjoyment thereof. True, the grant of an injunction is discretionary, but the discretion must be exercised in accordance with the policy of the law which is that a person in peaceful possession should be maintained in possession until evicted in due course of law. If a person in possession is dispossessed, he can bring a suit under S.9 of the Specific Relief Act within six months of the dispossession and recover the property even though he has no title and his dispossessor has. If that be so, why should the court not prevent the dispossession and why should it insist on his being actually dispossessed before it gives him relief."
(f)In Mistry Ali Mohd. Abdullah and others V. Khawaja Abdul Qadus and others, AIR 1976 Jammu and Kashmir 23, in paragraph 6 and 13, it is laid down as follows:
"In order to establish the right of pathway by the plaintiffs over the land in dispute that has ripened into right of easement, it must be shown that the enjoyment of such right by the plaintiffs was peaceful and open and that the pathway was being used as of right as an easement without interruption and that too over a period of 20 years.
A permissive user of pathway does not create any vested right to claim easement. AIR 1926, Lah 522 (1) and AIR 1958 Orissa 248, Rel. on."
49.In Pedda Seetharamappa and others V. Pedda Appaiah, AIR 1962 Andhra Pradesh 84, it is held thus:
"In a case falling under cl. (e) of section 13 Easements Act, an easement of necessity such as is referred to in that section means an easement without which the property retained cannot be used at all and not one merely necessary to the reasonable enjoyment of the property. Where the plaintiff claims a right to use the cart track going through the defendant-sharer's land as an easement of necessity, that is, on the ground that he has no other means of reaching his fields except the said cart-track, but the evidence shows that there is an alternative cart-track, though inconvenient in rainy season, by which he can reach his fields, the plaintiff's claim on the ground of necessity cannot be entertained."
50.A cursory perusal of the Plaint (along with the plan) filed by the 1st Respondent/Plaintiff before the trial Court shows that there is no mention of suit cart track passing on the western side of Perumal temple. However, a scrutiny of Exs.C.1 and C.3-Commissioner's Report indicate the cart track is continuously passing through only temple from the northern side to southern side. Further, it is mentioned that a cart has been positioned. Therefore, as claimed by the Defendants, it is quite evident that the suit cart is proceeding from northern side to western side of the temple and then it proceeds in the direction of eastern side and directly goes to the 1st Respondent/ Plaintiff's lands. The Defendants 2, 6 to 8 in the Written Statement have categorically stated that the 1st Defendant has constructed a house in Government Survey No.305/1 which will not in anyway hindrance to the cart track and in A B portion the cart track breadth is 20 feet and the said cart track to be used by the 1st Respondent/ Plaintiff has not been obstructed by the Defendants at any point of time etc. Further, they have also stated that the portion GHIJ is the 2nd Defendant's house front entrance and only on its eastern side there is a cart track and in that portion the 1st Respondent/ Plaintiff has no right to prevent the acts of 2nd Defendant. Although the 1st Respondent /Plaintiff claims the suit track as a cart track, but the 4th Defendant pleads that Government Survey No.305/1 is a temple/temple poramboke as per Village accounts.
51.It is to be borne in mind that the appointment of an Advocate Commissioner is only to aid a Court of Law to assess the evidence let in by both parties in regard to the subject matter of dispute in issue. It is needless for this Court to state that a Court of Law can also place reliance on the report of Commissioner for appreciation of the evidence available on record. No wonder, a Court of Law can appoint an Advocate Commissioner for ascertaining the state of things disputed by the parties.
52.In Ex.A.4-Land Tax Scheme Register Copy signed by Headquarters Deputy Tahsildar of Gobichettipalayam dated 26.04.1988, Government Survey No.305/1 (Old Survey No.205) is mentioned as Government Poramboke measuring 0.38.0 and it is described as 'Temple'. It is quite obvious as per Ex.A.4-Land Tax Scheme Register Copy, the Government Survey No.305/1 measuring 0.38.0 is a temple poramboke. The Defendants have admitted that the 1st Respondent/Plaintiff has used the cart track as a cart track. Furthermore, D.W.1 in his evidence has deposed that the suit cart track has been in existence for longer period and that the 1st Respondent/Plaintiff and his predecessors have taken the carts through the suit cart track to proceed to his land. Even D.W.2 in his evidence has deposed that the 1st Respondent/Plaintiff has not taken the cart through the front entrance of temple and in the temple poramboke situated in the front of his house, he has not caused any obstruction for the movement of cart track. Inasmuch as the 1st Respondent/Plaintiff has filed the present suit seeking the relief of permanent injunction against the Defendants and further, the 1st Respondent/Plaintiff has come out with the case that the Defendants are not to obstruct him from using the suit cart track in any manner, this Court comes to an inevitable conclusion that as per Ex.C.4-Commissioner's Report the cart track has been in existence before filing of the suit and in that ABCD portion, the 1st Respondent/Plaintiff is entitled to get the relief of permanent injunction as against the Defendants, as prayed for in the Plaint and accordingly, the point is so answered.
53.Dealing with the plea of the 1st Respondent/Plaintiff's claim for the relief of mandatory injunction as claimed in the Plaint, it is to be pointed out that the 1st Respondent/Plaintiff in para 6 of the Plaint has clearly inter alia mentioned that the 2nd Defendant is a Poojari to the Karivaradharaja Perumal temple and Angala Amman temple and in the temple itself, he has resided. Later just six months ago, he has constructed the house and pandal FJK as shown in the Plaint plan on the western side of the suit cart leaving 12 feet breadth GR as shown in the Plaint plan to use it a a cart track and also that the 12 feet breadth place GH as shown in the Plaint plan is sufficient to take the cart, cattle, men, material etc., the Plaintiff has not objected the 2nd Defendant to construct the house and to reside there etc. it is patently evident from Exs.C.1 and C.3-Commissioner's Reports and that the house of 2nd Defendant has not been shown in the suit cart track and further, the pandal has been put at a breadth of 10 feet. Also, it is seen from Ex.C.3-Commissioner's Report that in the cart track situated in front of the 1st Defendant's house, a fence has been dug at a length of 4 feet. When this Court has granted permanent injunction in favour of the 1st Respondent/Plaintiff in regard to the use of ABCD portion as per Ex.C.4-Commissioner's Plan dated 13.06.1988, the 1st Respondent /Plaintiff is not entitled to get the relief of permanent injunction to remove SRQU pandal. That apart, as seen from Ex.C.1-Commissioner's Report, a pandal has been put at a breadth of 10 feet in front of 2nd Defendant's house and in that place, the extent of cart track is 18 feet and also pandal has been put adjacent to 2nd Defendant's house.
54.In view of the categorical admission of the 1st Respondent/ Plaintiff in para 6 of the Plaint that 'since the 12 feet breadth place GHIJ as shown in the Plaint plan is sufficient to take the carts, cattle, men and material etc. and further he has not objected the act of 2nd Defendant in constructing the house and to reside there and also coupled with the Exs.C.1 and C.3-Commissioner's Reports, this Court comes to an inescapable conclusion that pandal has been put adjacent to the 2nd Defendant's house and that the said pandal has not been put in GHIJ portion as made mention of by the 1st Respondent/Plaintiff in the Plaint and accordingly, the 1st Respondent/Plaintiff is not entitled to get the relief of mandatory injunction as prayed for in the Plaint. Unfortunately, the First Appellate Court has not dealt with the faculative aspects of the matter in a real and proper perspective and per contra, it granted the relief of mandatory injunction, which in the considered opinion of this Court, is not a valid one in the eye of law. Therefore, it is held by this Court that the First Appellate Court has committed an error in granting the relief of Mandatory Injunction in favour of the 1st Respondent/Plaintiff, [even though the 1st Respondent /Plaintiff has not sought the relief of Declaration in the Plaint in regard to the suit property] because of the simple fact that it is the admitted case of the parties that temple is the owner of the suit property and accordingly, the Substantial Question of Law No.1 is so answered.
The Contentions, Discussions and Findings on point No.2:
55.The 2nd Defendant, in his Written Statement (adopted by Defendants 6 to 8), has clearly stated in the suit cart track A, B portion, the 20 feet breadth cart track to be used by the 1st Respondent/Plaintiff has not been objected to by the Defendants and they have not caused any obstructions.
56.D.W.1, in his evidence, has also admitted that the 1st Respondent/Plaintiff and his predecessors have taken the cart through the suit cart track. D.W.2, in his evidence, has also stated that he has not caused any obstruction to the use of suit cart track which is situated in front portion of his house at the temple poramboke. Therefore, the First Appellate Court has rightly observed that the 1st Respondent/Plaintiff's rights have been conceded by the Defendants and the said finding arrived at does not suffer from any serious material irregularity or tainted with patent illegality and accordingly, the Substantial Question of Law No.2 is so answered.
57.In the result, the Second Appeal is allowed in part, leaving the parties to bear their own costs. It is held by this Court that the 1st Respondent/Plaintiff (later deceased) and after his demise, his Legal Representatives viz., Respondents 7 and 8 are entitled to get the relief of Permanent Injunction in respect of the suit cart track as mentioned in Ex.C.4-Commissioner's Report as 'ABCD'. Further, it is held by this Court in regard to the claim of Mandatory Injunction, the 1st Respondent/Plaintiff (later deceased) and his Legal Representatives are not entitled to obtain the said relief. Accordingly, the Judgment and Decree of the First Appellate Court stands modified. It is made clear that the grant of relief of Permanent Injunction in favour of 1st Respondent/Plaintiff in O.S.No.149 of 1988 by this Court will not preclude either the 2nd Respondent/4th Defendant or the 3rd Respondent/5th Defendant HR & CE Department to initiate necessary action against the encroachers concerned in the temple poramboke land in Government Survey No.305/1 as per Tamil Nadu Land Encroachment Act or in accordance with any other Law [of course after adhering to the principles of natural justice]. Consequently, the Judgment and Decree of the trial Court dated 20.03.1995 in O.S.No.149 of 1988 are restored.
Sgl To
1.The Subordinate Judge, Gobichettipalayam.
2.The District Munsif, Gobichettipalayam