IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28.07.2011 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.626 of 2011 1. S.M.Zinaba .. 1st Appellant/ Plaintiff 2. K.Shanmuga Sundaram .. 2nd Appellant (Cause title accepted vide order of Court dated 11.11.2008 in M.P.No.1 of 2007 in S.A.SR.No.73650 of 2007) Vs. A. Alamelu .. Respondent/ Defendant Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgement and Decree dated 21.06.2006 made in A.S.No.16 of 2006 on the file of the I Additional Subordinate Court, Coimbatore reversing the Judgement and Decree, dated 8.12.2005, made in O.S.No.400 of 2001 on the file of the II Additional District Munsif Court, Coimbatore. For Appellants : Ms. P.T. Asha for M/s. Sarvabhauman Associates & S. Mukunth. For Respondent : Mr. L. Mouli. J U D G E M E N T The plaintiff in O.S.No.400 of 2001 on the file of the II Additional District Munsif Court, Coimbatore, is the 1st appellant. 2. The 1st appellant / plaintiff filed the suit for mandatory injunction directing the respondent/ defendant to remove the newly constructed east-west compound wall mentioned in 'B' Schedule of the suit property and also for mandatory injunction to remove the projections of the sun shade mentioned in the 'C' Schedule of the suit property and also for permanent injunction. The case of the plaintiff/ 1st appellant was that he is the owner of the property measuring 30 feet north south on the western side and 27 feet north south on the eastern side and the respondent's property is https://hcservices.ecourts.gov.in/hcservices/ situate on the southern side of the plaintiff's property, and there was a compound wall which divided both the properties and the plaintiff/ 1st appellant laid water pipe on the north of the compound wall and was enjoying the property and the defendant/ respondent was threatening to encroach upon the plaintiff's property and therefore he filed a suit for permanent injunction as well as for mandatory injunction to remove the projections of the sun shade in the 'C' Schedule of the suit property and during the pendency of the suit taking advantage of the summer vacation, the respondent/ defendant demolished the old compound wall and encroached upon the 1st appellant/ plaintiff's property on his southern side and constructed a new compound wall and therefore the plaint was amended to include the relief of mandatory injunction directing the respondent/ defendant to remove the newly constructed compound wall which is on the southern side of the plaintiff's property and northern side on the defendant's property. 3. The respondent/ defendant contested the suit stating that the new compound wall was not constructed by encroaching upon the plaintiff's property and the new compound wall was constructed after demolishing the old compound wall in the same place and even as per the measurement the plaintiff/ 1st appellant is not entitled to claim any area in which the new compound wall was constructed by the defendant and as per the documents of the plaintiff/ 1st appellant, he has no right or title over the area in which the compound wall was constructed by the defendant/ respondent and therefore the plaintiff/ 1st appellant has no right over the compound wall and there was no necessity for the defendant to remove the projections of the sun shade and they are within the boundaries of the defendant's property. 4. The trial Court rejected the case of the plaintiff/ 1st appellant in respect of the reliefs 'B' and 'C' and granted the decree of mandatory injunction directing the defendant to remove the compound wall holding that the same was constructed on the plaintiff's property. Aggrieved by the same, the defendant filed the first appeal before the lower appellate Court and on the basis of admission of the plaintiff and also on the basis of Ex.A1 sale deed the lower appellate Court held that the 1st appellant/ plaintiff is entitled to have 28 feet north south on the western side and 27 feet north south on the eastern side and in the plaint he has claimed 30 feet north south on the western side and 27 feet north south on the eastern side and on that basis it was contended by the plaintiff/ 1st appellant that the respondent has encroached upon the plaintiff's property and put up a construction and the plaintiff/ 1st appellant has also admitted in her evidence that she is entitled to only 28 feet north south on the western side and 27 feet north south on the eastern side and therefore when the plaintiff/ 1st appellant had no title over the area in which the compound wall was constructed, the plaintiff is not entitled to https://hcservices.ecourts.gov.in/hcservices/ the relief of mandatory injunction. Therefore, the lower appellate Court allowed the appeal and dismissed the suit. Hence, the Second Appeal. 5. The appellants have raised the following substantial questions of law in the grounds of appeal: (1) Whether the lower appellate Court is correct in law in non-suiting the appellants holding that the Commissioner's report was not marked to prove encroachment, totally overlooking the fact that the said report is part of the Court records ? (2) Whether the lower appellate Court was correct in law in setting aside the well considered the Judgement and Decree of the trial Court without giving reasons for setting aside the finding of the trial Court ? (3) Whether the lower appellate Court is right in law in substituting a finding contrary to the evidence available on record ? 6. It is submitted by the learned counsel for the appellants that it is seen from the report of the Commissioner that a new compound wall which is in dispute was constructed over the pipe line laid by the 1st appellant/ plaintiff and that would prove that the compound wall now constructed by the defendant/ respondent was not on the same place where the old compound wall existed on the southern side of the disputed compound wall and on the northern side the plaintiff laid the water pipe line and after the suit was filed the defendant/ respondent encroached upon the plaintiff's property and constructed the compound wall on the pipe line laid by the plaintiff/ 1st appellant and considering that aspect the trial Court has rightly granted the decree of mandatory injunction. He further submitted that the Commissioner's report has also disclosed that the compound wall was constructed on the pipe line laid by the 1st appellant/ plaintiff and as per the evidence of Surveyor, the 1st appellant/ plaintiff is entitled to 30 feet north south on the western side and 27 feet north south on the eastern side and without appreciating these aspects the lower appellate Court reversed the finding of the trial Court and allowed the appal. 7. On the other hand, the learned counsel for the respondent submitted that it was admitted by the plaintiff/ 1st appellant that as per Ex.A1 sale deed he is entitled to 28 feet north south on the western side and 27 feet north south on the eastern side and as per the Commissioner's plan also, the disputed compound wall is constructed south of 28 feet belonging to the plaintiff/ 1st appellant and therefore it cannot be contended that the compound wall was constructed in the plaintiff's property. He further contended that the existence of compound wall between the two https://hcservices.ecourts.gov.in/hcservices/ properties is admitted and according to the defendant/ respondent the old compound wall was demolished and new compound wall was constructed in the same place and therefore it cannot be contended that the defendant/ respondent constructed the new compound wall on the north by encroaching upon the plaintiff's property. 8. Heard both sides. 9. It is seen from Ex.A1 the plaintiff is entitled to 28 feet north south on the western side and 27 feet north south on the eastern side. As per the Commissioner' s plan and the Surveyor's plan, the disputed compound wall was found beyond 28 feet north south on the western side and 27 feet north south on the eastern side of the 1st appellant/ plaintiff's property. When the plaintiff/ 1st appellant is entitled to only 28 feet north south on the western side and 27 feet north south on the eastern side, he cannot claim any right beyond that area and therefore the lower appellate Court has rightly held that the plaintiff/ 1st appellant has no title beyond the area specified in her sale deed and hence she is not entitled to the relief of mandatory injunction. The Surveyor and the Commissioner proceeded on the basis that the plaintiff is entitled to have 30 feet north south on the western side and 27 feet north south on the eastern side. The findings of the Commissioner's report and the report of the Surveyor are against the sale deed Ex.A1. Considering this aspect, the lower appellate Court has rightly held that when the plaintiff has no title over the area in which the compound wall was constructed, the plaintiff cannot seek the relief of mandatory injunction. At the same time, the arguments of the learned counsel for the respondent that the compound wall was constructed on the same place where the old compound wall was in existence cannot be accepted. It is found by the Commissioner that the compound wall was constructed on the pipe line and it is not in dispute that the pipe line was laid by the 1st appellant/ plaintiff. Therefore, the old compound wall must have been in existence on the southern side of the plaintiff's property and adjoining compound wall on the northern side and the plaintiff/ 1st appellant must have laid the pipe line and thereafter the said compound wall must have been constructed by the defendant/ respondent according to the boundaries and measurements. However, that will not clothe any right on the plaintiff/ 1st appellant to claim demolition of the compound wall as the plaintiff/ 1st appellant has no right over the area in which the compound wall was constructed by the defendant/ respondent. The trial Court without considering the measurement in Ex.A1 granted the relief of mandatory injunction to remove the compound wall only on the basis of the Commissioner's report and the fact that the compound wall was constructed on the pipe line laid by the 1st appellant/ plaintiff and presuming that the compound wall must have been constructed on the 1st appellant/ plaintiff's land as stated supra. Having regard to the admission of the plaintiff/ 1st appellant and https://hcservices.ecourts.gov.in/hcservices/ the recitals in Ex.A1, the 1st appellant/ plaintiff has no right beyond 28 feet north south on the western side and 27 feet north south on the eastern side and the compound wall was constructed beyond the area given in Ex.A1 and hence the plaintiff/ 1st appellant has no right over the compound wall constructed by the defendant/ respondent. Considering all these aspects, the lower appellate Court has rightly reversed the findings of the trial Court and allowed the appeal. Hence, the substantial questions of law are answered against the appellants and the 1st appellant/ plaintiff without proving her title to the area in which the compound wall constructed is not entitled to seek the mandatory injunction and therefore the Second Appeal is to be dismissed. 10. Hence, the Second Appeal is dismissed. In such circumstances, there shall be no order as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar. kr To 1. The II Additional District Munsif, Coimbatore. 2. The I Additional Subordinate Judge, Coimbatore. 1 cc toM/s.Sarvabhuman, Associates, Advocate, Sr. 45996 1 cc to M/s. L.Mouli, Advocate, Sr. 46043 S.A.No.626 of 2011 RSI (CO) kk 19/8 https://hcservices.ecourts.gov.in/hcservices/