IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29.4.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN S.A.No.1165 of 2007 & M.P.No.1 of 2007 1.Thangammal 2.Mahalingam 3.Balakrishnan @ Ashok 4.Leelavathi 5.N.Radha 6.N.Shanthi .. Appellants(Defendants 2 to 7) vs. N.Vijayalakshmi .. Respondent(Plaintiff) The Second Appeal has been filed against the judgment and decree, dated 16.03.2007, in A.S.No.41 of 2006, on the file of the Subordinate Judge, Nilgiris at Uthagamandalam confirming the judgment and decree, dated 22.03.2006, in O.S.No.241 of 2000, on the file of the District Munsif, Uthagamandalam. For Appellants : Mr.S.K.Rakhunathan For Respondent : M/s.G.Kumudh Jabakh & M.L.Ramesh J U D G E M E N T This Second Appeal has been filed against the judgment and decree, dated 16.3.2007, made in A.S.No.41 of 2006, on the file of the Subordinate Judge of Nilgiris at Uthagamandalam, confirming the judgment and decree, dated 22.3.2006, made in O.S.No.241 of 2000, on the file of the District Munsif, Uthagamandalam. 2. The defendants 2 to 7 in the suit O.S.No.241 of 2000, are the appellants in the present second appeal. The plaintiff had filed the suit praying for the relief of mandatory injunction to direct the defendants to remove the illegal construction made by the defendants by encroachment over the plaintiff's property and for costs. https://hcservices.ecourts.gov.in/hcservices/ 3. For the sake of convenience, the parties are referred to as they have been arrayed in the original suit O.S.No.241 of 2000. 4. The brief facts of the case, as stated in the plaint, are as follows: The plaintiff is the absolute owner being in possession and enjoyment of the land measuring an extent of 0.03-22/32 acres (1611-1/2 sq.ft) comprised in R.S.No.1719/1 of Ootacamund Town together with the building thereon bearing Door No.100 (New Door No.79) of Ward No.9 and assessment No.4665 of Ootacamund Town Municipality. The plaintiff had purchased the property from one N.Pandurangan. The deceased defendant had purchased the part of the land on the northern side of the plaintiff's property from the Vendor of the plaintiff, namely, N.Pandurangan. 5. The deceased defendant had encroached upon the plaintiff's property on the south west edge measuring about 12 sq.ft. by constructing a 20 feet wall. The said illegal construction was made during the months of May and June 2000. Inspite of the objections raised by the plaintiff, the deceased defendant had hurriedly put up the illegal construction over the plaintiff's property with the wrongful intention of grabbing the said property. Since the defendant N.Nanjappan had died, on 3.12.2001, leaving behind the defendants 2 to 7 as his legal heirs, they have been impleaded in the suit as defendants 2 to 7. Since they are in possession and enjoyment of the assets left behind by the deceased N.Nanjappan, the plaintiff had caused a legal notice, dated 3.7.2000, calling upon the deceased defendant to demolish the illegal construction measuring about 12 sq. ft. and 20 feet wall constructed over the plaintiff's land. The deceased defendant instead of complying with the demand made by the plaintiff, had issued a reply notice denying that he had encroached upon the plaintiff's property. In such circumstances, the plaintiff has filed the suit in O.S.No.241 of 2000, on the file of the District Munsif Court, Uthagamandalam. 6. In the written statement filed by the deceased defendant, it has been stated that the allegations made by the plaintiff in the suit are false, frivolous and vexatious and therefore, the suit is not maintainable, either on facts or in law. 7. It has also been stated that the defendant is not aware of the extent of the property in the possession of the plaintiff in R.S.No.1719/1 of Ootacamund Town. The defendant had purchased the extent of 752-1/2 sq. ft. of land in R.S.No.1719/1 of Ootacamund Town together with the building thereon bearing door No.99 of Ootacamund Municipality, under a registered sale deed, dated https://hcservices.ecourts.gov.in/hcservices/ 3.11.1997. The said sale deed had been registered as document No.826/97 in the office of the Sub-Registrar, Ootacamund. The said land had been purchased from P.Sowmya @ P.Lakshmi daughter of N.Pandurangan. After the purchase, the defendant had renovated the old building in the said property which had existed in the said property. However, the defendant has denied the allegation that he had encroached upon the property belonging to the plaintiff. The defendant has put up a construction on his land and there is no encroachment whatsoever by the defendant on the property said to be belonging to the plaintiff. In such circumstances, the suit filed by the plaintiff is not maintainable and therefore, it is to be dismissed with costs. 8. Based on the pleadings, the trial Court had framed the following issues for consideration:- "1. Whether the defendant has put up a wall by encroaching the plaintiff's property? 2. Whether the plaintiff is entitled to the relief of mandatory injunction as against the defendant as prayed for? 3. To what other relief is the plaintiff entitled to?" 9. The additional issue framed by the trial Court, on 27.12.2004, is as follows: "1. Whether the said toilet on the north eastern corner was in existence on the date of purchase i.e. on 3.11.1976 and by that are the defendants entitled for the said extent of land over which the toilet has been built?" 10. The plaintiff had marked Exhibit A.1, which is the sale deed, dated 27.8.1997, executed by N.Pandurangan in favour of the plaintiff. The plaintiff had also marked a copy of the legal notice, dated 3.7.2000, issued by the plaintiff's counsel to the deceased first defendant as Exhibit A.2. A reply notice, dated 11.7.2000, issued by the defendant's counsel to the plaintiff's counsel has been marked as Exhibit A.4. 11. Exhibit B.1 has been marked by the defendants to show that the encroached portion marked in the photostat copy of the Exhibit A.1 sale deed filed by the plaintiff. Exhibit B.2, dated 3.11.1997, is a sale deed by which the deceased first defendant had purchased an extent of 752-1/2 sq. ft. of land on the southern side of the suit property. Exhibit C.1, dated 28.7.2005, and Exhibit C.2, dated 26.6.2005, were marked through Court. Exhibit C.1 is the Commissioner's report filed along with a series of 8 photographs. Exhibit C.2 is the sketch showing the T.S.No.1719/1. https://hcservices.ecourts.gov.in/hcservices/ 12. With regard to issue No.1, the trial Court had found that the defendants had admitted the title of the plaintiff in the disputed extent of land. It was also found that the sale deed filed by the plaintiff as Exhibit A.1 would clearly establish the title of the plaintiff with regard to the disputed land. 13. With regard to the question of acquiescence on the part of the plaintiff, it was held by the trial Court that there was no evidence to support the contentions of the defendants that the strip of land in dispute had been in their possession right from the time of purchase of the land under the sale deed marked as Exhibit B.2. The stand taken by the defendants that there has been a toilet on the said strip of disputed land cannot support the case of the defendants in showing that the disputed strip of land remained with the defendants right from the beginning. With no acceptable evidence available to support the stand of the defendants, the contention that the possession of the strip of land in dispute had been with the defendants right from the beginning had not been accepted by the trial Court. 14. The defendants had also pleaded acquiescence by the plaintiff. It was stated that the plaintiff had remained a silent spectator without making any claim against the defendants with regard to the disputed land. According to the plaintiff, the construction was done by the defendants during the months of May and June of the year, 2000. Immediately thereafter, she had caused a legal notice to the defendants, on 3.7.2000. In such circumstances, the defendants cannot plead acquiescence without establishing the claim that the plaintiff was aware of the right and that she had permitted the defendants to put up the construction in question. The defendants ought to have shown that they were not aware that the property belonged to the plaintiff, when the construction was made. Thus, it was held that the defendants had encroached upon the property of the plaintiff and that they have put up certain constructions on the property belonging to the plaintiff. 15. With regard to the second issue, the trial Court had found that the plaintiff is entitled to the relief of mandatory injunction as prayed for by her, since the defendants could not show that they could pay the compensation instead of the strip of land which is in dispute. 16. With regard to the additional issue framed by the trial Court, it was held that the defendants could not substantiate their claim that the toilet, which has been constructed in the disputed land, has been in existence right from the date of their purchase. Thus, it was found that the defendants, having illegally https://hcservices.ecourts.gov.in/hcservices/ encroached upon the portion of the land in dispute, are liable to hand over the same to the plaintiff. 17. With regard to the issue No.3, the trial Court had held that the defendants were liable to hand over the possession of the disputed extent of land as shown in the Commissioner's sketch Exhibit C.2, after demolishing the illegal construction put up by the defendants. 18. Aggrieved by the judgment and decree, dated 22.03.2006, made in O.S.No.241 of 2000, on the file of the District Munsif, Uthagamandalam, the defendants had filed an appeal before the Subordinate Judge of Nilgiris at Uthagamandalam, in A.S.No.41 of 2006. The first appellate Court had framed the following points for consideration: "1.Whether the suit property is exclusively belonging to the respondent/plaintiff or not? 2.Whether the appellants/defendants had encroached upon the suit property or not? 3.To what relief the appellants/defendants are entitled for?" 19. The first appellate Court on the basis of the submissions made by the plaintiff as well as the defendants and on a perusal of the evidence available on record, had dismissed the appeal confirming the judgment and decree of the trial Court. 20. The first appellate Court had held that Exhibit C.1 would show that the defendants had encroached upon the suit property. Based on the Exhibits C.1 and C.2, the first appellate Court had held that the defendants had encroached upon the suit property as mentioned therein, to an extent of 2½ feet x 5 feet and that they should have constructed the 20 feet wall in the suit property by encroaching upon the said property. It was found by the first appellate Court that during his cross-examination, D.W.1 had accepted the fact that the defendants had encroached upon the disputed land, as mentioned in the report of the Commissioner, marked as Exhibit C.1, and as shown in the sketch marked as Exhibit C.2. The Commissioner, who was examined as C.W.1, had stated that there was a common wall between the plaintiff's house and the defendants house at the south west edge of the plaintiff's property. The wall with the measurement of 2½ x 5 feet had been constructed on the encroached portion of the land. 21. Based on said evidence, the trial Court had come to the conclusion that the defendants had encroached upon the disputed land belonging to the plaintiff and that they had put up an https://hcservices.ecourts.gov.in/hcservices/ illegal construction, as alleged by the plaintiff. In such circumstances, the first appellate Court had confirmed the judgment and decree of the trial Court granting the reliefs as sought for by the plaintiff in the suit O.S.No.241 of 2000. 22. The substantial questions of law raised in the second appeal are as follows: "1. Whether the suit for mandatory injunction without any prayer for declaration is maintainable? 2. Is not the judgment and decree of the Courts below vitiated by its failure to consider the case of acquiescence on the part of the respondent he being a silent spectator which the construction was made by the appellants? 3. Is not the judgments and decree of the Courts below vitiated by its failure to consider the applicability of Section 115 of the Evidence Act and also the discretionary power vested in Court under Sections 19 and 54 of the Specific Relief Act?" 23. The contention of the learned counsel appearing for the appellants/defendants 2 to 7 is that it is not open to the plaintiff/respondent to seek for the relief of mandatory injunction without a prayer for declaration. 24. It was also contended by the learned counsel appearing for the appellants/defendants 2 to 7 that both the Courts below had not considered the evidence available on record before coming to their conclusions. 25. It was also stated that both the trial Court as well as the first appellate Court had failed to appreciate the fact that there was a chimney and a hole on the top of the wall which would prove that the disputed wall has been in existence for a long time. The Courts below had also failed to note that the alleged encroached area, as alleged by the respondent/plaintiff, was already in the possession of the appellants/defendants 2 to 7 from the time of the purchase of the said property from the vendors of the appellants/defendants 2 to 7, as the Commissioner had admitted during his cross-examination that the disputed wall had been constructed about 20 years before the filing of the suit. Further, the issue regarding acquiescence had not been properly considered as the evidence would show that the respondent/plaintiff had knowledge of the alleged encroachment and construction of the wall and since he had not raised any dispute, the Courts below ought to https://hcservices.ecourts.gov.in/hcservices/ have held that the respondent/plaintiff had lost his right to claim the relief as sought for in the suit due to acquiescence. Further, the offer of compensation made by the appellants/defendants 2 to 7 was rejected by the Courts below without complying with the principle of equity as found in the provisions of the Specific Relief Act. 26. The learned counsel appearing for the respondent/plaintiff, had submitted that the findings of the Courts below are correct and they are based on evidence available on record. 27. It was also submitted that the appellants/defendants 2 to 7 ought to have proved by evidence their claims that the possession of the disputed portion of the property was given to them under the sale deed, dated 3.11.1997, marked as Exhibit B.2. The appellants/defendants 2 to 7 had not chosen to examine the vendor of the property to prove their claims. Both the Courts below had rightly considered the issue of acquiescence and had rightly concluded the issue in favour of the respondent/plaintiff. Further, the disputed construction was found to be new. In such circumstances, it is not open to the appellants/defendants 2 to 7 to claim that the disputed wall has been in existence for a long time and they had purchased the property from their vendor along with the said construction. It was wrong on the part of the Commissioner in attempting to assess the age of the wall without sufficient factual information. Since the respondent/plaintiff has the title over the suit property, there is nothing wrong in his prayer in the suit seeking for the relief of mandatory injunction. Since the second appeal has been filed before this Court without raising any substantial question of law the appeal is to be dismissed. 28. The appellants/defendants 2 to 7 are raising the new grounds at the stage of the hearing of the second appeal without raising them before the Courts below. If such new grounds are permitted to at this stage, it would cause serious prejudice and irreparable harm to the respondent/plaintiff. 29. Considering the contentions raised on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the appellants/defendants 2 to 7 had not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. Both the trial Court as well as the first appellate Court have considered the evidence placed before them before coming to the conclusion that the appellants/defendants 2 to 7 had encroached upon a portion of the property belonging to the respondent/plaintiff and had put up certain illegal construction over the same. Both the Courts below https://hcservices.ecourts.gov.in/hcservices/ have also considered the issue of acquiescence, as well as the offer made by the appellants/defendants 2 to 7 to compensate the respondent/plaintiff for the damage caused by their encroachment and by the construction made on the disputed portion of the property by encroaching upon the same. In such circumstances, this Court would be slow in interfering with the findings of the Courts below based on facts, as in the present case, as held by the Supreme Court in GURDEV KAUR AND OTHERS Vs. KAKI AND OTHERS (2007 (1) CTC 334). Hence, the second appeal stands dismissed, confirming the judgment and decree of the Courts below. Consequently, connected M.P.No.1 of 2007 is also dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Subordinate Judge, Nilgiris at Uthagamandalam 2. The District Munsif, Uthagamandalam 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. G. Kumud Jhabakh, Advocate, SR No.25574 + 1 cc to Mr. S. K. Rakhunathan, Advocate, SR No.25803 RL(CO) SR/11.6.2008 S.A.No.1165 of 2007 https://hcservices.ecourts.gov.in/hcservices/