Madras High Court
Mary vs R. Venkaiah on 15 April, 2021
Author: S.S.Sundar
Bench: S.S.Sundar
S.A.No.743 of 2017 and
C.M.P.No.18638 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.No.743 of 2017
and
C.M.P.No.18638 of 2017
1.Mary
2.Nirmala
3.Dicky ali @ Dickrose
4.Sasi
5.Selvi ...Appellants/Defendants
Vs
R. Venkaiah ...Respondent/plaintiff
Prayer : Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree passed by the lower
Appellate Court made in A.S.No.257 of 2013, on the file of the learned II
Additional City Civil Court, Chennai, dated: 19.04.2017 confirming the
judgement and decree in O.S.No.4015 of 2007, on the file of the II Assistant
City Civil Court, Chennai. dated 15.04.2013.
1/6
https://www.mhc.tn.gov.in/judis/
S.A.No.743 of 2017 and
C.M.P.No.18638 of 2017
For appellants/defendants : Mr.T.S.N.Prabhakaran
For Respondent : No appearance
JUDGMENT
The defendants in O.S.No.4015 of 2007 on the file of the learned II Assistant City Civil Court, Chennai cum Additional Munsif Civil Court, Chennai are the appellants and the plaintiff is the respondent in the above Second Appeal.
2.The respondent/plaintiff filed a suit in O.S.No.4015 of 2007 before the II Assistant City Civil Court, Chennai for permanent injunction restraining the appellants/defendants in any way from interfering with the peaceful possession and enjoyment of the respondent/plaintiff and for mandatory injunction directing the appellants/defendants to remove the hut wall which was built by the appellants/defendants in the suit property.
3.According to the respondent/plaintiff, the suit property was allotted to him by the Tamil Nadu Slum Clearance Board in short ''the TNSCB'' in 2/6 https://www.mhc.tn.gov.in/judis/ S.A.No.743 of 2017 and C.M.P.No.18638 of 2017 the year 1985, based on the lease cum sale agreement; Subsequently, it is stated that the TNSCB executed a sale deed infavour of the respondent/plaintiff on 11.08.2003 in respect of the suit property which is described as a vacant site measuring an extent of 260 sq. meters within Chennai City Municipal Corporation. It is the case of the respondent/plaintiff that pursuant to the allotment which was made earlier by the TNSCB, the sale deed was executed in favour of the respondent/plaintiff in the year 2003. It is stated that the respondent/plaintiff is in enjoyment of the suit property for residential purpose. The respondent/plaintiff also obtained Electricity Service connection, water and sewage connection to the property. The dispute is only in respect of a small portion on the north side of the property measuring an extent of 6x61 sq. feet.
4.It is the case of the respondent/plaintiff that the small portion measuring an extent of 6x61 square feet on the north side of the suit property was encroached by the appellants/defendants. The respondent/plaintiff produced before this Court the lease cum sale 3/6 https://www.mhc.tn.gov.in/judis/ S.A.No.743 of 2017 and C.M.P.No.18638 of 2017 agreement dated 28.08.1985 and the no objection certificate issued by the TNSCB in favour of the respondent/plaintiff; Ex.A3 is the sale deed dated 11.08.2003, executed by TNSCB in favour of the respondent/plaintiff. During trial, an Advocate Commissioner was appointed and he has filed a report along with the sketch.
5.In the written statement, even though the defendants denied the allegations, the case of the appellants/defendants with regard to the suit property is not specific. It is also the case of the appellants/defendants that the disputed wall was constructed by the respondent/plaintiff himself. There is no dispute about the plaintiff's title as per the sale deed Ex.A3. It is not the case of the respondent/plaintiff that he is entitled to more extent than he got under the sale deed. The trial Court decreed the suit as prayed for. The trial Court granted the decree for permanent injunction and mandatory injunction. The trial Court categorically found that the defendants have encroached an extent of about 363 sq. ft. over the property of the respondent/plaintiff. The trial Court granted decree for permanent injunction and mandatory injunction. Against which, the appellants/defendants 4/6 https://www.mhc.tn.gov.in/judis/ S.A.No.743 of 2017 and C.M.P.No.18638 of 2017 preferred an appeal before the II Additional City Civil Court, Chennai in A.S.No.257 of 2013.
6.After considering the documents and evidence available on record, the lower appellate Court also held in favour of the respondent/plaintiff. The judgment and decree of the lower appellate Court is independent. The lower Appellate Court elaborately considered the pleadings and evidence adduced by both sides along with the documents, particularly the Advocate Commissioner's report and held that the appellants/defendants had put up the illegal construction by encroaching into the respondent/plaintiff's property. Having regard to the concurrent findings of Courts below which are supported by material documents and evidence adduced on both sides, this Court does not find any illegality or irregularity in the judgment of Courts below. This Court does not find any question of law much less substantial question of law involved in the second appeal. 5/6 https://www.mhc.tn.gov.in/judis/ S.A.No.743 of 2017 and C.M.P.No.18638 of 2017 S.S.SUNDAR,J., vsn
7.In that view, this Second appeal fails and the same is dissmissed. No costs. consequently, connected miscellaneous petition is also closed.
15.04.2021 vsn Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order To
1. The II Judge, Additional City Civil Court, Chennai,
2. The II Judge, Assistant City Civil Court, Chennai.
S.A.No.743 of 2017
and C.M.P.No.18638 of 2017 6/6 https://www.mhc.tn.gov.in/judis/