Madras High Court
V.Shanmugam vs C.P.Vijayalakshmi on 28 November, 2022
Author: P.T.Asha
Bench: P.T.Asha
C.M.A.Nos.2514 and 2515 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T.ASHA
C.M.A.Nos.2514 and 2515 of 2022
and
C.M.P.Nos.19560 and 19558 of 2022
1.V.Shanmugam
2.V.Chandrasekar ... Appellants in both appeals
vs.
1.C.P.Vijayalakshmi
2.C.P.Vinay Kumar
3.K.Shobarani
4.S.Gayathri
5.Renuka Manju ... Respondents in both appeals
COMMON PRAYER: Civil Miscellaneous Appeal is filed under Order 43
Rule 1(r) r/w. Section 104 of C.P.C., against the order and decretal order of
the learned Additional District Judge, Hosur passed in I.A.Nos.3 and 2 of
2002 in O.S.No.227 of 2022 dated 16.08.2022.
For Appellants : Ms.A.Ajimath Begum
For Respondents : Mr.G.Vijayakumar
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https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2514 and 2515 of 2022
COMMON JUDGMENT
The defendants are the appellants before this Court challenging the order passed by the learned Additional District Judge, Hosur in I.A.Nos.3 and 2 of 2002 in O.S.No.227 of 2022 dated 16.08.2022 in the above appeals.
2. C.M.A.No.2514 of 2022 is filed challenging the order passed in I.A.No.3 of 2022 in O.S.No.227 of 2022 which was an application filed for mandatory injunction against the defendants to remove the obstruction put up in the middle of the suit property.
3. C.M.A.No.2515 of 2022 is filed challenging the order passed in I.A.No.2 of 2022 in O.S.No.227 of 2022 filed for grant of an order of temporary injunction restraining the respondents from putting up any kind of fence or made any construction in the suit property.
4. The facts in brief which are culminated in the filing of the above appeals are as follows:
The plaintiffs had filed the suit O.S.No.227 of 2022 in respect of the 2/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022 property morefully described herein below:
Description of Property '' fpUco;;zfphp khtl;lk;. XN:h; tl;lk;. fpUco;zfphp hPo. xNh; rg;hpo. xNh; lt[d; fpuhk r/vz;/6-1A/1A/4 g[Jg;ngl;ilapy; rz;Kfk; kw;Wk; re;jpunrfh; (1&2?k; gpujpthjpfs;) vd;gth;fSf;F ghfg;gphptpid gj;jpuj;jpd;go ghj;jpag;gl;Ls;s brhj;jpy; nkw;F jpirapYk; kw;Wk; tp$ayf;co;kpf;F (1k; thjp) ghfgphptpid gj;jpud;go ghj;jpag;gl;Ls;s brhj;jpy; fpHf;F jpirapYk; kw;Wk; tpda;Fkhh;. ncphgh uhzp. nudqfh kw;Wk; fhaj;hp (2Kjy; 5?k; thjpfs;) Mfpnahh;fSf;F fpua K:yakha; ghj;jpag;gl;Ls;s brhj;jpy; fpHf;F jpirapYk; nrh;eJ ; eh';fs; midth;fSk; bghJtHpf;fhf tpl;Lf;bfhz;Ls;s bghJeilghijf;F brf;Fge;jp tptuk;
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brhj;jpy; nkw;Fg[wj;jpy; tplg;gl;Ls;s bghJ ,lk; fpHnkyhf ,Ug[wKk; 3/5 mo bjd;tlyhf ,Ug[wKk; 80 mo ,jw;F 280 rJuofSk; kw;Wk; 1 Kjy; 5 thjpfSf;F ghj;jpag;gl;Ls;s brhj;jpy; fpHg[wj;jpy; tplg;gl;Ls;s bghJ ,lk; fpHnkyhf ,Ug[wKk; 2/5 mo bjd;tlyhf ,Ug[wKk; 80 ,jw;F 200 rJuofSk; Mf 480 rJuofs; jhd; jhth brhj;jhFk;) nkw;go brhj;J xNh; efuhl;rp vy;iyf;F cl;gl;lJ/''
5. The reliefs claimed in the suit property are as follows:
''i) By declaring the Easement Right (Common Pathway Right) of Plaintiffs as per Registered Pathway Agreement (Easement by Grant) bearing Doc.No.4472/2019 dated 12.03.2019 in respect of suit property; 4/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022
ii) By granting Bare Injunctions restraining them from causing any sort of hindrance to the Plaintiffs or to their men from enjoying the suit property as Common Pathway to reach their properties to the East and North of the suit Common Pathway from M.G.Road;
iii) By granting Mandatory Injunction against the Defendant to remove the illegal hindrances caused by way of erecting stone pillars with barbed fencing put up in the middle of the suit property;
iv) By granting a sum of Rs.10,00,000.00 as damages for causing loss to Plaintiffs earnings by directing the Defendants to pay the said sum with interest at 12% per annum from the date of suit till realization for causing hindrances to the free access of Plaintiffs in violation of the suit Pathway Agreement dated 12.03.2019;
v) By granting costs of the suit.''
6. It is the case of the plaintiffs that the plaintiffs 1, 3 to 5 are sisters and the 2nd plaintiff is the son of the 1st plaintiff. The defendants in turn are brothers.
5/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022
7. The plaintiffs case is that the property to the west of the suit property belongs to the 1st plaintiff under a registered partition deed dated 07.04.2011, the plaintiffs had built shops adjacent to the path way and they are enjoying the same. The plaintiffs and their ancestors utilised the 3.75 feet common pathway to reach MG Road. The properties to the east of the path way belonged to the defendants under a registered partition deed dated 12.07.2002.
8. As per the partition, the 1st defendant was allotted A schedule property and 2nd defendant was allotted B schedule of property. In the description of property, the western boundary in both the documents are referred to as common pathway. The plaintiff would submit that in the year 2019, there was an agreement between the plaintiffs and the defendants for having a wider pathway between their properties and consequently a registered path way agreement dated 12.03.2019 registered as Doc.No.4472 of 2019 was entered into between the parties. Under this deed, the plaintiffs had left a 2.5 feet width to the east of their properties to a length of 80 feet proceeding upto M.G.Road. Likewise, the defendants left 3.5 feet to the west side of their property to the said length of 80 feet upto M.G.Road. As 6/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022 per the recitals of pathway, this 6 feet width of the suit property was to be enjoyed by both parties. Thereafter, the plaintiffs constructed 4 shops on the western side of the common pathway and this pathway was being used as an access to reach their shop from MG Road from the year 2019.
9. Whileso, the defendants high handedly caused hindrance to the possession and enjoyment of the pathway and from using the pathway. The 1st defendant has used abusive language against the 1st plaintiff, a lady. He had also assaulted her for which she had to take treatment at Government Hospital, Hosur. A complaint was preferred on 07.01.2022 and CSR was issued. The defendants have been constantly giving troubles to the 1st plaintiff therefore, the 1st plaintiff was constrained to approach the police authority. The police authority had tried to bring about a rapprochement between the parties, however, the defendants who are the people having political power as well as money power refused to abide by the terms of the registered pathway agreement. Overnight on 01.05.2022, the defendants high handedly and illegally erected stone pillars with barbed fencing in the middle of the common pathway which constrained the plaintiffs to move the Court. The plaintiffs had also filed two interlocutory applications along 7/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022 with the suit; one for mandatory injunction to remove the fencing and another for interim injunction restraining them from putting up any fencing on the pathway.
10. The respondents had filed their counter admitting the execution of the agreement which they would contend was only on account of persistent demand of the plaintiffs. The defendants would contend that the plaintiffs created nuisance by loading and unloading of the sand etc., in the godown round the clock even during the night time. Further, the persons who come to the shops / godown of the plaintiffs used the pathway to spit and defecate thereby maintaining the pathway in a very unsanitary condition. They would contend that the plaintiffs had put up construction on common passage as against which a complaint was lodged by the defendants before the police station and on 07.01.2022, the 2nd plaintiff had assaulted the 1st defendant, as a result of which, he has to be hospitalised and they had given a complaint on 30.03.2022 and enquiry also was held on 23.04.2022 and it was agreed by both parties that the written agreement dated 12.03.2019 shall be cancelled and thereafter, the defendants could put up the wall to about 3.5 feet without obstructing the plaintiffs' 2.5 feet 8/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022 pathway. The complaint was thereafter closed. The defendants would submit that the wall was put up only on the advice of police. Further, the defendants had given a complaint since the District Registrar had refused to register the cancellation and followed it by filing W.P.No.28205 of 2021, directing the District Registrar to register the deed. This Court directed the District Registrar to initiate his enquiry within a period of 12 weeks from the date of the order.
11. An Advocate Commissioner was appointed to note down the physical features of the property and he has submitted his report which has been marked as Ex.C1. The plaintiffs on their side have marked the common pathway agreement dated 12.03.2019 and Exs.P2 and P3 ultimately, the learned Judge has granted a relief in both the interlocutory applications on the ground that the defendants had high handedly attempted to alter the agreement between the parties. Aggrieved by the same, the appellants are before this Court.
12. Heard the learned counsel on either side and perused the materials on record.
9/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022
13. The learned counsel for the appellants had vehemently contended that from 01.05.2022, the plaintiffs are not using the remaining pathway to the full extent of 6 feet. That apart, he would submit that the plaintiffs having agreed to cancel the pathway agreement and put up fence has suppressed this agreement and approached the Court with unclean hands and snatched an interim order. It is admitted by the defendants that the plaintiffs and the defendants have entered into a registered agreement regarding the use of path way and the allocation of lands by both parties for the common pathway. The agreement remains in force, since it has not been cancelled. The defendants who had claimed a subsequent agreement between the parties has not produced the same. That apart, considering the counter of the defendants, the agreement that had been entered on 12.03.2019 has not been cancelled todate in the manner known to law. That being the case, the appellants/defendants have taken law into their hands and erected fence, which was also noted by the learned Advocate Commissioner. The plaintiffs have proved the prima-facie case and balance of convenience is also in their favour. It is no doubt true that the mandatory injunction should be granted only in the rarest of rare cases. The instant case, definitely falls within the contours of a rarest of rare cases inasmuch 10/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022 as the defendants have attempted to alter the agreement between the parties unilaterally and by taking law into their hands without getting the agreement cancelled. The defendants have no authority to alter the terms of the agreement under Ex.P1 pathway agreement. Therefore, I see no reason to interfere with the well considered order of the learned Judge. The defendants shall restore the pathway to its original state within a period of two weeks from the date of receipt of a copy of this judgment. In the event of the defendants succeeding in the suit, the learned counsel for the plaintiffs has stated across the bar that the fence shall be put up by the plaintiffs on their own costs and expenses and this understanding is also recorded.
14. In the result, the Civil Miscellaneous Appeals are dismissed and the order and decretal order of the learned Additional District Judge, Hosur passed in I.A.Nos.3 and 2 in O.S.No.227 of 2022 dated 16.08.2022 is confirmed. No costs. Consequently, connected miscellaneous petitions are closed.
28.11.2022 Index : Yes/No Speaking / Non-speaking order ssn 11/12 https://www.mhc.tn.gov.in/judis C.M.A.Nos.2514 and 2515 of 2022 P.T.ASHA, J., ssn To
1. The Additional District Judge, Hosur.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.
C.M.A.Nos.2514 and 2515 of 2022 and C.M.P.Nos.19560 and 19558 of 2022 28.11.2022 12/12 https://www.mhc.tn.gov.in/judis