IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 07.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.1188 of 2011 and M.P.No.1 of 2011 Parvathi .. Appellant/ Defendant Vs. M. Raju .. Respondent/ Plaintiff Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 25.11.2010 made in A.S.No.354 of 2009 on the file of the Additional District Judge (Fast Track Court- III), Chennai, confirming the judgement and decree dated 13.11.2008 made in O.S.No.5311 of 2004 on the file of the II Assistant City Civil Judge, Chennai. For Appellant .. Mr. A.M. Loganathan J U D G E M E N T The unsuccessful defendant in O.S.No.5311 of 2004 on the file of the II Assistant City Civil Court, Chennai, is the appellant. 2. The respondent/ plaintiff filed the suit for recovery of possession of the marked portion ABCD in the plaint sketch, for injunction restraining the appellant/ defendant from interfering with his rights to use the well as marked 'W' in the sketch, for mandatory injunction to restore the hand pump attached to the Well and for injunction restraining the appellant/ defendant from letting out the drainage water in the drainage line laid by the respondent/ plaintiff. 3. To appreciate the facts the following diagram is necessary: https://hcservices.ecourts.gov.in/hcservices/ Q R B C 37 1/2' 18' 37 1/2' 59' 18' 59' 3 1/2' 18' P S A D 4' 100' (W) X Y It is the admitted case of both the parties that the property PQRS on the western side belongs to the respondent/ plaintiff and the eastern side property SRBA belongs to the appellant/ defendant and further east ABCD belongs to the respondent/ plaintiff. The southern portion marked as PSADYX is admittedly a common pathway. There is a Well in the common pathway marked as 'W' and the width of the common pathway is 4' feet north south. The case of the respondent/ plaintiff is that he is the owner of the portion of PQRS and ABCD and the appellant/ defendant is attempting to put up columns in the portion ABCD and the appellant has no right to encroach upon that portion ABCD and the appellant has also let her drainage water into the drainage line put up by the respondent and also removed the hand pump installed by the respondent near the Well and therefore he filed the suit for the reliefs prayed for. 4. The appellant contested the suit stating that the suit is bad for mis-joinder of cause of action and in the cause of action paragraph nothing has been stated about the acts done by the appellant and in respect of portion ABCD the appellant has perfected title by adverse possession by using the property for more than 25 years and the Well was dug by the father of the appellant and it is her exclusive property and the respondent is taking water from the hand pump and there is no proof that the common drainage laid in the common passage is the exclusive property of the respondent and therefore the respondent is not entitled to the decree prayed for. 5. The trial Court decreed the suit holding that under Exs.A1 and A2 the plaintiff proved his title to the portion ABCD and the husband of the appellant also admitted in his evidence that ABCD belongs to the respondent and no proof was adduced to prove that the appellant has perfected title to the suit property by adverse possession and the southern portion is a common pathway and therefore in the Well the respondent is entitled to take water and https://hcservices.ecourts.gov.in/hcservices/ it is also admitted that the hand pump was removed by the appellant and therefore he is bound to restore the hand pump and the respondent is entitled to use the Well which is common to both parties and the appellant is also not entitled to let out the drainage water from her house through the drainage system put up by the respondent. 6. The lower appellate Court also confirmed the decree of the trial Court and held that the appellant did not examine herself to prove her adverse possession and she has examined her husband as DW1 and admittedly he married only 15 years ago and therefore he was not the competent to speak about adverse possession and admittedly the drainage system was connected to the existing drainage without the consent of the respondent and the appellant also admitted that ABCD portion belongs to the respondent and dismissed the appeal. Hence the Second Appeal. 7. It is submitted by the learned counsel for the appellant that both the Courts erred in holding that the appellant has not proved her adverse possession and admittedly the disputed property ABCD is adjacent to the appellant's property and there is no wall dividing the property and the appellant is enjoying the property for more than 25 years and therefore the appellant has perfected title to the suit property by adverse possession. The learned counsel for the appellant further submitted that the suit was also not maintainable as reliefs of different nature arising out of different cause of action are clubbed in one suit and therefore the suit is bad for mis-joinder of cause of action. He further submitted that the Well in the common passage was dug by her father and it is exclusively used by the appellant and the respondent has no right over the Well and there is no evidence adduced by the respondent that the drainage system found in the common passage was put up by him and as the drainage was put up in the common passage she is entitled to use the same, therefore the Courts below erred in granting the relief of injunction in respect of the drainage water. 8. The appellant has raised the following substantial questions of law in the grounds of Second Appeal: (1) Whether the Courts below have caused miscarriage of Justice in granting the relief of mandatory injunction prayed for in the plaint filed in the above suit when there is no evidence that the drainage connection of the defendant was connected with the drainage connection of the plaintiff ? (2) Whether the Courts below are correct and proper in upholding the suit as maintainable when six reliefs of different nature arising on different cause of action are prayed for in the suit and rejecting the plea that the suit is bad for mis-joinder of cause of action ? 9. I am unable to accept the contention of the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the appellant. Admittedly, the dispute is with respect to the portion ABCD as shown in the diagram and also regarding the Well and the drainage system found in the common passage on the southern side. DW1 has also admitted in his evidence that ABCD portion belongs to the father of the respondent. The trial Court extracted the admission of DW1 in the Judgement and a reading of the evidence of DW1 makes it clear that the ABCD portion belongs to the respondent. The case of the appellant is also that she has perfected title to the suit property by adverse possession. Admittedly, the appellant is the cousin of the respondent and the portion ABCD is a vacant site and it is adjacent to the portion owned by the appellant shown as SRBA in the plan. Though the appellant claimed that she has perfected title to the suit property by adverse possession, to prove the same except the oral evidence of DW1 no evidence was let in by the appellant to prove her case. It was stated in the written statement that the property ABCD is enjoyed by the appellant for more than 25 years. But it is admitted by DW1 that he married the appellant 15 years back and he claimed that the property is being used for more than 25 years. Therefore, the lower appellate Court has rightly rejected the oral evidence of DW1 and held that the appellant has not proved her case of adverse possession by letting in proper evidence. Further, having regard to the relationship between the parties the appellant might have been permitted by the respondent to use ABCD portion and therefore in the absence of any assertion of title by the appellant over the portion ABCD for more than the statutory period, the appellant cannot claim any right over the disputed portion ABCD. Further, it has been held by the Hon'ble Supreme Court that when a person pleads adverse possession he has to specifically state the period from which he has been enjoying the property as a real owner asserting title to the knowledge of the original owner. In this case no such plea has been taken in the written statement and also no evidence was let in to prove that the appellant is enjoying the property as owner to the knowledge of the real owner from a particular point of time. Considering all these aspects, the Courts below have rightly held that the appellant has not proved the facts of adverse possession and admittedly the respondent is the owner of the portion ABCD and that was trespassed by the appellant and therefore the delivery of vacant possession is ordered. Hence, I do not find any infirmity in the Judgement of the Courts below in so far as the relief granted in respect of ABCD portion. 10. Admittedly, the hand pump was removed by the appellant and the Well is situated in the common pathway and no evidence was let in to prove that the Well was dug by the appellant or by her father and having regard to the nature of the property the Well must be the common Well entitled to be enjoyed by both parties and the appellant cannot claim the exclusive right over the Well. As the Pump was removed by the appellant the Courts below rightly granted the relief of mandatory injunction directing the appellant to restore the hand pump. In so far as the drainage system is https://hcservices.ecourts.gov.in/hcservices/ concerned, it is not contended by the appellant that the drainage passage found in the common passage was the common drainage system belonging to both parties. The respondent asserted in the plaint that the drainage system in the common passage was laid at his instance and it belonged to him and the appellant cannot use the common drainage system and that was not specifically denied in the written statement. Admittedly, without the consent of the respondent, the appellant let out the drainage from her portion into the drainage system in the common passage and therefore that was rightly considered by the Courts below and granted injunction. Hence, I do not find any infirmity in the Judgement of the Courts below. 11. The main contention of the learned counsel for the appellant was that six reliefs of different nature are clubbed in one suit and therefore the suit is bad for mis-joinder of cause of action. As per Order 2 Rule 2 of CPC, every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Further, as per Order 2 Rule 2 (3) of CPC, a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs and under Order 2 Rule 3 of CPC, a plaintiff may unite in the same suit several cause of action against the same defendant. In this case, the plaintiff prayed for different reliefs against the defendant in respect of the property as sated above and according to me, there is no mis-joinder of cause of action. The plaintiff is entitled to club all the cause of action against the same defendant in respect of the same property and there is nothing illegal in it. Hence, the substantial questions of law are also answered against the appellant. Hence, I do not find any reason to interfere with the Judgements of the Courts below and the Second Appeal is dismissed. 12. In result, the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is also closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar kr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District & Sessions Judge, Fast Track Court No.III, Chennai. 2. The II Assistant Judge, City Civil Court, Chennai. +1cc to M/s.P.B.Ramanujam, Advocate Sr 55058 +1cc to Mr.A.M.Loganathan, Advocate Sr 55298 MP(CO) km/21.10. S.A.No.1118 of 2011 and M.P.No.1 of 2011 https://hcservices.ecourts.gov.in/hcservices/