1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL (MD)No.178 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Sornam 2.Johnson 3.Vimala 4.Kala 5.Lyla 6.Justing .. Appellants/Appellants/Nil Lrs of Defendant Vs. Chandrabai .. Respondent/Respondent/Plaintiff Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 15.12.2010 passed in Appeal Suit No.66 of 2010 by the Sub Court, Padmanabhapuram confirming the Judgment and decree dated 27.03.2010 passed in Original Suit No.352 of 2006 by the Additional District Munsif Court, Padmanabhapuram. For Appellants : Mr.K.Sreekumaran Nair For Respondent : Mr.J.John Jeyakumar JUDGMENT This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.352 of 2006 by the Additional District Munsif Court, Padmanabhapuram and in Appeal Suit No.66 of 2010 by the Sub Court, Padmanabhapuram. 2. The respondent herein as plaintiff has instituted Original Suit No.352 of 2006 on the file of the trial Court for the reliefs of declaration and mandatory injunction, wherein the deceased father of the present appellants has been shown as sole defendant. 3. It is averred in the plaint that the plaintiff has purchased suit 'A' and 'B' schedule properties by virtue of the sale deed dated 31.03.2003. The suit 'A' schedule property is a house whereas the suit 'B' schedule property is nothing, but a pathway. The suit 'B' schedule property starts from the suit 'A' schedule property and it passes towards southern side and ultimately reaches Kulasekaram-Azhakiamandapam Road. The defendant has encroached a portion of the suit 'B' schedule property and put up construction by way of denying the right of the plaintiff over the suit 'B' schedule property. Under the said circumstances, the present suit has been filed so as to declare that the suit 'B' schedule property is a pathway of the suit 'A' schedule property and also to direct the defendant to remove construction by way of passing mandatory injunction. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the written statement filed on the side of the defendant, it is averred that the width of suit 'B' schedule property is not six links and it is four links. It is false to say that the defendant has put up a wall by way of encroaching the width of suit 'B' schedule property. The defendant has constructed a wall on the eastern side of the suit 'B' schedule property even prior to execution of the sale deed dated 31.03.2003, which stands in the name of the plaintiff. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit in respect of the relief of mandatory injunction and dismissed the suit in respect of declaratory relief sought for therein. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.66 of 2010 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendants as appellants. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellants/ defendants, the following substantial questions of law have been raised for consideration: a) After denying the relief of declaration of easement right over the 'B' schedule property which is the main relief, whether the lower Court is right in granting the subsidiary relief of mandatory injunction in favour of the plaintiff to remove the wall on the eastern portion of the plaint 'B' schedule item? b) When there is no decree to demolish the wall on the north of the house, whether the lower Court is right in granting a decree for mandatory injunction to remove the wall on the east of the 'B' schedule property especially when no purpose would be served by demolishing the wall on the eastern side of the 'B' schedule property? c) Whether the lower Court is right in overlooking the observation of the Commissioner in his report that if the width of the pathway is reduced from the existing one, the plaintiff cannot use the same? In other words, if the width is not reduced, the plaintiff can very well use the pathway as it is? https://hcservices.ecourts.gov.in/hcservices/ 3 9. The short point involved in the present case is as to whether the width of the suit 'B' schedule property is four links or six links and also as to whether the defendants have encroached a portion of the suit 'B' schedule property? In the plaint, it has been specifically pleaded that the suit 'B' schedule property is nothing, but a pathway and the same is in existence so as to have ingress and egress from the suit 'A' schedule property and further it is averred in the plaint that the width of suit 'B' schedule property is six links. But in the written statement, it has been specifically pleaded that the width of the suit 'B' schedule property is not six links and it is only four links. 10. Basing upon the divergent contentions with regard to the width of suit 'B' schedule property, the trial Court has given an elaborate discussion and ultimately found that the width of the suit 'B' schedule property is four links and it has also found that the original defendant has encroached a portion of the suit 'B' schedule property and ultimately decreed the suit with regard to the relief of mandatory injunction. The first appellate Court has also upheld the conclusion arrived at by the trial Court with regard to width of the suit 'B' schedule property and also upheld the decree passed by the trial Court. 11. The learned counsel appearing for the appellants/defendants has repeatedly contended that the defendant has sold both 'A' and 'B' schedule properties in favour of the plaintiff under a registered sale deed dated 31.03.2003 and the same has been marked as Ex.A.1, wherein no measurement has been given with regard to the width of the suit 'B' schedule property, but actually its width is only four links even prior to execution of Ex.A.1 and the defendant has constructed a compound wall on the eastern side of the suit 'B' schedule property and the Courts below have not considered the aforesaid factual aspects and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 12. The learned counsel appearing for the respondent/plaintiff has contended that the trial Court on the basis of the Commissioner's Report and Plan, which have been marked as Exs.C.1 and C.2 and also the evidence given by him, has rightly granted the decree of mandatory injunction and the first appellate Court has also rightly confirmed the same and therefore the entire argument advanced by the learned counsel appearing for the appellants/defendants is liable to be rejected. 13. In fact, this Court has perused the Judgments rendered by the Courts below. The trial Court has found that the width of the suit 'B' schedule property is four links and the original defendant has put up some construction by way of encroaching the suit 'B' schedule property and ultimately decreed the suit in respect of the https://hcservices.ecourts.gov.in/hcservices/ 4 relief of mandatory injunction. The first appellate Court has also confirmed the view taken by the trial Court. 14. It is an admitted fact that in the trial Court an Advocate Commissioner has been appointed and he inspected the suit properties and its adjoining properties and filed his Report and Plan and the same have been marked as Exs.C.1 and C.2. The Advocate Commissioner has been examined as D.W.3. He has clearly deposed in his evidence that the original defendant has put up construction just ten days prior to his visit. Further he has stated in his evidence that a small portion of the suit 'B' schedule property has been encroached by the original defendant. Only on the basis of the evidence given by D.W.3 (Advocate Commissioner) and also on the basis of his Report and Plan, which have been marked as Exs.C.1 and C.2, the trial Court has granted the relief of mandatory injunction and the first appellate Court has also upheld the same. Therefore it is needless to say that the width of the suit 'B' schedule property is four links and if any encroachment is made by the original defendant/defendants, the same is liable to be removed by way of passing mandatory injunction. With the above observation, this second appeal is liable to be disposed of. Since with the above observation, this second appeal is liable to be disposed of, the substantial questions of law raised on the side of the appellants/defendants need not be decided. 15. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission. The concurrent Judgments and decrees passed by the Courts below are confirmed. However it is observed that the width of the suit 'B' schedule property is four links and if any encroachment is made within the limit of four links by the defendants, the respondent/plaintiff is entitled to execute the relief of mandatory injunction granted by the trial Court and upheld by the first appellate Court. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Padmanabhapuram. 2.The Additional District Munsif Court, Padmanabhapuram. +1cc to Mr.K.Sreekumaran Nair, Advocate, Sr.No.18310 +1cc to Mr.John Jayakumar, Advocate, Sr.No.18591 S.A(MD)No.178 of 2011 and M.P(MD)No.1 of 2011 smn/SMA/24.6.2011/5C/4P 14.06.2011 https://hcservices.ecourts.gov.in/hcservices/