(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 29.09.2004 passed in A.S.No.1 of 2004 on the file of the Principal Subordinate Court, Mayiladuthurai, confirming the Judgment and Decree dated 17.10.2003 passed in O.S.No.110 of 1998 on the file of the District Munsif Court, Sirkali.)
1. Challenge, in this second appeal, is made to the Judgment and Decree dated 29.09.2004 passed in A.S.No.1 of 2004 on the file of the Principal Subordinate Court, Mayiladuthurai, confirming the Judgment and Decree dated 17.10.2003 passed in O.S.No.110 of 1998 on the file of the District Munsif Court, Sirkali.
2. The second appeal has been admitted on the following substantial questions of law:
(i). Whether the plaintiff/first respondent, who is not the owner of S.No.134/2 is entit
Please Login To View The Full Judgment!
led to ask for mandatory injunction for removal of superstructure put up by appellant in the absence of objection by real owner of the said survey number namely Kanniyar Mutt?
(ii). Whether the plaintiff/first respondent is prevented by Doctrine of acquiesance and Equitable estoppel from praying for removal of superstructure put up by appellant nearly 20 years back?
(iii). Whether the plaintiff who came to the court with unclean hands by making a false plea that there was no building in suit property on the date of suit is entitled to equitable relief of mandatory injunction?
(iv). Whether the lower appellate Court is erred in disturbing well considered findings of trial Court without framing proper points for consideration as mandated by order 41 Rule 31 of CPC?
3. Considering the scope of the issues between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. Suffice to state that the suit has been laid by the plaintiff for the relief of declaration as regards her right to access from the road margin to go to her place and consequentially, directing the defendants 1 to 3 to remove the encroachment and superstructure put up by the 8th defendant in the portion of the Highways road in front of the suit property by way of a mandatory injunction and also for a direction to the defendants 4 to 6 not to effect electric service connection to the superstructure that may be put up by the 8th defendant and if any service connection had been effected, to disconnect the same and for a direction to the 7th defendant not to issue any licence or levy house tax for the superstructure that may be put up by the 8th defendant in the high ways road and a direction to the 8th defendant and after his death, his LRs viz., the defendants 9 to 14 restraining them from putting up any structures in the highways road portion in front of the suit property i.e. North of the suit property to east-west width of 42' by way of permanent injunction.
5. The 8th defendant, in particular, contested the plaintiff's suit by taking the plea that he had put up a superstructure only in his portion in front of his residence and the portion, where he had up the superstructure, does not lie either in the property belonging to the plaintiff's Mutt or the highways road and therefore, according to him, the construction put up by him would not in any manner cause interference to the plaintiff to enjoy her property and therefore, sought for the dismissal of the plaintiff's suit.
6. Materials placed on record go to show that the suit property belongs to the Mutt i.e. Kanniyar Mutt and it is found that the plaintiff's husband had been authorised to stay in the suit property by the Mutt and it is found that after his demise, the plaintiff is in the possession and enjoyment of the suit property. Alleging that the 8th defendant, without any authority, had put up the construction in the highways road diametrically opposite to the suit property, thereby, preventing her enjoyment of the suit property by having access to the suit property from the road portion and further according to the plaintiff's case, the encroachment made by the 8th defendant had been earlier removed by the authorities concerned and also during the festival occasions and despite the same, the 8th defendant had been persisting in putting up the structure by encroaching into the highways road portion and hence, according to the plaintiff, she had been necessitated to lay the suit for appropriate reliefs.
7. Though the 8th defendant would contend that the structure which he had put up has been raised in his property and not by way of encroaching either into mutt's property or the highways road portion and accordingly prayed for the dismissal of the plaintiff's suit. However, as rightly found by the first appellate Court, the major portion of the shop put up by the 8th defendant lies in the road poramboke and it is found to be opposite to the suit property and thereby, the 8th defendant is also found in the possession of a particular portion of the property belonging to Kanniyar Mutt and despite the position being above, the 8th defendant has not placed any acceptable and reliable material to sustain his claim that he had put up the structure or the shop only in the property, to which, he is entitled to. Thus, it is found clearly that the 8th defendant had encroached into a portion of the property belonging to Kanniyar Mutt as well as the road poramboke area and put up the shop and the shop put up by him is lying opposite to the suit property, it is therefore found that as rightly determined by the first appellate Court, the plaintiff's access to the suit property from the road portion had been affected and accordingly, the plaintiff had been necessitated to seek the necessary reliefs against the defendants concerned.
8. As abovenoted, there is no material placed by the 8th defendant worth acceptance to show that the shop put up by him lies within the property belonging to him and on the other hand, as abovenoted, it lies in a portion of the property belonging to Kanniyar Mutt and the major portion of the shop lies in the road poraombake area. It is thus found thatthe construction put up by the 8th defendant is an unauthorised one and is liable to be removed.
9. Though the 8th defendant would claim that he had perfected his title to the property in dispute by way of adverse possession, however, no acceptable and reliable material has been placed by him to evidence the above aspect of his defence and accordingly, it is seen that the first appellate Court had rightly determined that the 8th defendant had not perfected his title by way of adverse possession as regards the property in dispute and rightly negatived the above defence and thereby also, negatived the plea of limitation raised by the defendants for dismissing the plaintiff's suit.
10. It is found that when on earlier occasions, the unauthorised construction put up by the 8th defendant had been removed, still, he had been persisting in putting up the construction in the property not belonging to him and thereby, causing hindrance to the plaintiff, which necessitated the plaintiff to institute the suit for the appropriate reliefs. Accordingly, it is found that as rightly determined by the first appellate Court, the 8th defendant and his legal heirs had encroached into the property belonging to Kanniyar Mutt and the highways poramboke land and put up the unauthorised construction and the same is liable to be removed as prayed for by the plaintiff and accordingly, it is found that the plaintiff is also entitled to seek direction to the authorities concerned not to effect service connection or not to issue any licence or collect tax in respect of the unauthorised construction put up by the 8th defendant in a property not belonging to him and also entitled to seek the relief of direction to the authorities concerned to remove the unauthorised construction put up by the 8th defendant in the road poramboke area. Accordingly, it is found that the judgment and decree of the first appellate Court upholding the plaintiff's lis do not warrant any interference. The substantial questions of law formulated in the second appeal are accordingly answered against the defendants 9 to 14, the LRs of the 8th defendant and in favour of the plaintiff.
In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.