S.C.Mani v. S.Rajeswari

JUDGMENT The plaintiff in the suit O.S.No.10 of 2013 on the file of the Additional District Munsif, Vellore is the appellant before this Court challenging the reversal of his decree for permanent injunction by the learned Principal Subordinate Judge, Vellore in A.S.No.7 of 2018.

¶2The facts, which are necessary for disposal of the above second appeal, are herein below set out and the parties are referred to in the same litigative status as before the trial court.

¶3The substantial questions of law on which this second appeal is admitted are set out below. "(a) Whether in law are not the judgement and decree of the Lower Appellate Court perverse since the judgement has been delivered with reference to the property which is not subject matter of the suit?

(b) Having accepted finding of the trial court that the plaintiff is the owner of the property and he is in possession and enjoyment of his property and the defendant is in possession of her own property, is not the Lower Appellate Court wrong in interfering with the decree for permanent injunction granted by the trial court?

(c) Whether in law has not the Lower Appellate Court traversed beyond the issue in the suit which makes the judgement perverse warranting interference?

¶4The plaintiff has filed the above referred suit stating that he had purchased the suit property under a registered Sale Deed dated

16.12.2002. The property in question has been described as follows: SCHEDULE OF PROPERTY ntYhh; khtl;lk;. ntYhh; rg;oiar; nrh;e;j. ntYhh; lt[d;. bubtd;a{ thh;L vz;/4. Kdprpgy; thh;L vz;/25. S.A.No.758oofo2021 gpshf; vz;/15. ltd[ ; rhn; t vz;/941-2. bjdn; tYhh; ltd[ .; bfhrgn; gl;il. bfhr bjUtpy; fPHhz;il thilapy; bjUtpw;Fk.; bjUtpypUeJ; nghftu css; 5 mo mfy reJ; tHpf;Fk; tlfF; . fhyhw;Wf;F bjw;F. nfhtpy; ,ljj; pw;F fpHfF; . nfhtpYfF; rk;kej; gg; ll; giHa fjt[ vz;/22-1 gj[ pa fjt[ vz;/76 nghll; giHa rpykhd jln; lhL tPlhdJ/ fpHf;F nkw;F tlgu[ k; 37 mo. bjdg; [wk; 33 1-2 mo. tlfF; bjw;F fPHg; [wk; 39 mo. nky;g[wk; 47 mo (36 1-2 10 1-2) nkwg; o mstpy; bjdn; kw;F K:iyapy; nfhtpy; ,ljj; pw;F brhej; khd 31 1-2 mo nghf kPjp rJuo 1570 ,ej; sts[ s; mokida[k; ,jpy; flo; as[ s; giHa jln; lhL tPL ,jpy; css; kuff; jtf[ s.; thrff; hy;fs.; kpd;rhu mikgg; [ kPll; h.; kPll; h; blghrpl.; xahp'; rht; P!; fidfc; pd; ,ju fl;Lfn; fhgg; [ rhkhdf; s; mokid nky;rhah csg; l aht[k; nkw;go brhj;jpw;F giHa fjt[ vz;/22. g[jpa fjt[ vz/76. thp tpjpg;g[ vz;/27050. kpd; ,izg;g[ vz;/327. ,jpy; cs;s Kdprpgy; FHha; ,izg;g[ cs;go FHha; ,izg;g[ vz;/3510 MFk;/ The plaintiff would submit that he is in possession of the suit property from the date of purchase. The defendant is a Dharmakartha of Balasundara Vinayagar Temple and she had given a false complaint against the plaintiff before the South Police Station, Vellore on

25.12.2012, stating that the plaintiff had stopped the flow of water from the defendant's house to the drainage. The plaintiff would submit that, at no point of time, the drainage pipe had crossed his schedule mentioned property from the defendant's house. Pursuant to this complaint, the plaintiff had attended the enquiry at the police station and both the parties had agreed to settle the matter.

5.However, contrary to the said undertaking, the defendant had given yet another complaint against the plaintiff and had openly given out that she would create more trouble by interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

6.The plaintiff would submit that the defendant has no semblance of a right to the suit property and that being the case when the plaintiff had questioned the illegal activities of the defendant, she has threatened him. The plaintiff would submit that he is unable to withstand the pressure of the defendant and therefore, has come forward with the above suit.

¶7The defendant has filed a written statement, inter-alia denying the allegations contained in the plaint. The defendant would submit that it is the plaintiff's family members who had attempted to remove the common cement passage between the suit property and the temple house. There is a drainage channel in the common passage which the the plaintiff's family wanted to demolish. The defendant would submit that the drainage channel takes a turn on the north situate on the western side of the suit property and flows into the main drainage. Since the defendant had objected to the action of the plaintiff and the plaintiff has preferred a false complaint against the defendant in December 2012 the police had advised the plaintiff to desist from disturbing the drainage channel in the suit property. Once again, the plaintiff had attempted to tamper with the drainage channel which constrained the defendant to prefer a police complaint and the plaintiff during the enquiry, assured that the matter would be settled through Court and it is thereafter that the suit has been filed. The defendant would submit that pending the suit, the plaintiff has put up a construction by removing the drainage channel on the western side. The defendant would deny the contentions that she is threatening the plaintiff through her men. Therefore, she would pray for the dismissal of the suit.

¶8The trial Court, namely, Additional District Munsif, Vellore, Vellore District had framed an issue as to whether the plaintiff was entitled to a decree for permanent injunction. The plaintiff had examined himself as P.W1 and marked Exs.A1 to A16. On the side of the defendant, the defendant had examined herself as D.W1 and one Sankar as D.W2 and one Prabhu as D.W3 and marked Exs.B1 to B9. The Advocate Commissioner was appointed pending the proceedings who had inspected the property and submitted the report along with a rough plan. The Commissioner report has been marked as C1, the rough plan as C2 and the surveyor plan with town surveyor register as C3. Ultimately, the learned Additional District Munsif decreed the suit. However, the learned Judge had observed that though the suit is for a permanent injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit property, the plaintiff has focused on the space between his and the defendant's property where the drainage pipe line is said to be situate. The learned Judge has also held that the dispute is not with reference to the passage between the plaintiff and the defendant's properties, nor with the drainage pipeline where it was damaged, which was the subject matter of the suit and that no orders have been passed with respect to this drainage pipeline. Challenging the said judgment and decree, the defendant has filed A.S.No.7 of 2018 on the file of the Principal Subordinate Judge Vellore. The learned Principal Subordinate Judge allowed the appeal and set aside the judgment and decree of the trial Court. The learned Judge had framed four points for consideration which are set out herein below.

¶1Whether the suit filed by the plaintiff for bare injunction without seeking the relief of declaration of title is maintainable?

¶2Whether the plaintiff has suppressed the material facts in this case?

¶3Whether the plaintiff is entitled to the relief of permanent injunction?

¶4Whether there is any perversity or illegality in the judgment and decree passed by the trial Court?

9.With reference to the maintainability of the suit for bare injunction without seeking the relief of declaration, the learned Judge had held in favour of the plaintiff. In answer to the second point for determination, the learned Judge has relied upon the evidence of P.W1 in his cross examination, which reads as follows: "gpujpthjp mtUila tPl;oy; Rkhh; 40 tUlkhf ,Ue;J tUfpwhh; vd;Wk; tHf;F brhj;J fHpt[ePh; Xil jhd; fHpt[ePh; bry;tjw;F gad;gLj;Jfpwhh; vd;W brhd;dhYk; rhpjhd; /" The learned Judge also relied upon the report of the Advocate Commissioner-Ex-C1 and the sketch to come to the conclusion that the drainage pipeline over the common passage enters the suit property and makes an exit on the northern side of the suit property. This drainage channel does not belong exclusively to the plaintiff. The learned Judge had observed that these factors have been suppressed by the plaintiff, who had filed the suit, alleging that the defendant had trespassed into the suit property. The learned Judge ultimately held that to obtain the discretionary relief of an injunction, the plaintiff has to come to the Court with clean hands and therefore, the plaintiff was not entitled to the said relief. Aggrieved by the same, the appellant is before this Court. This Court had admitted this second appeal on the substantial questions of law set out supra.

¶10Heard the learned counsels on either side and perused the materials available on record.

¶11The plaintiff claims title to the suit property under Ex.A1 and suit schedule property is the very same description. The property subject matter of Ex.A1 is New Door No.76, Old Door No.22/1, Kosa Street, Kosapet, Vellore. This property is bounded on the South by a 5 feet wide lane North by the channel West by temple land East by New Door No.76, Old Door No.22/1 belonged to the temple together with a tiled house The property measures east-west on the northern side 37 feet, 33 ½ feet on the southern side, north-south on the eastern side 39 feet and western side 47 feet, excluding 31 ½ feet owned by the temple on the south-west corner, totally measuring an extent of 1570 sq.ft. Therefore, the description of the property clearly excludes 36 ½ /10 ½ extent of land on the south-west corner. A perusal of Ex.C2-Commissioner's plan shows a space between the plaintiff's property and another house on the west, and the diagram shows the existence of drainage which proceeds through this space, enters the plaintiff's property at the space marked as toilet, proceeds northwards, takes a turn to the west, and then enters the main municipal drainage channel. Therefore, the drainage channel to a very small extent is situate in the suit property. P.W1 admitted to this fact in his cross-examination and the same has been extracted by the lower appellate Court. It is also seen that this drainage channel has now been demolished and a toilet has been put up by the plaintiff. The portion measuring 36 ½ / 10 ½ has not been sold to the plaintiff and taking into account the fact that this drainage line has been in existence for over 40 years and the plaintiff having demolished the same pending the suit, the lower appellate Court has rightly set aside the judgment and decree of the trial Court, particularly when the trial Court has not understood the description of the suit property.

¶12Considering the fact that the Commissioner's report indicates that the drainage channel enters the suit property and then takes a turn to the west and proceeds to the municipal drainage channel, the lower appellate Court has rightly held that the plaintiff's property where the drainage pipeline has been demolished is very much a part of the suit property. The lower appellate Court has also taken note of the admission of P.W1 that, for the last 40 years, the defendant has been enjoying this drainage pipe which runs through the suit property to drain out his drainage into the main municipal channel. Therefore, the substantial questions of law Nos.(1) and (2) have to be necessarily be held against the plaintiff. The lower appellate Court has clearly considered the issue, which is the subject matter of the dispute between the parties and arrived at its decision. The lower appellate Court has not traversed beyond the suit and therefore, the question of law No.(3) is also answered against the appellant/plaintiff. In fine, the second appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

01.12.2023 Index: Yes/No Speaking order/non-speaking order srn To

¶1The Principal Subordinate Court, Vellore.

¶2The Additional District Munsif, Vellore.

¶3The Section Officer, V.R.Section, High Court, Madras. P.T.ASHA, J., srn and C.M.P.No.14731 of 2021

01.12.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2023 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA and C.M.P.No.14731 of 2021 S.C.Mani … Appellant/Plaintiff Vs S.Rajeswari ... Respondent / Defendant Prayer: Second Appeal is filed under Section 100 of C.P.C against the Judgement and Decree dated 14.10.2019 made in A.S.No.7 of 2018 on the file of the Principal Subordinate Court, Vellore, reversing the Decree and Judgment dated 24.02.2017 made in O.S.No.10 of 2013 on the file of Additional District Munsif, Vellore. For Appellant : Mr.T.P.Prabakaran For Respondents : Mr.P.Sankaranarayanan