Uthiriamarie Vs. Balu Nair - Court Judgment

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 31.08.2006 passed in A.S.No.28 of 2006 on the file of the Subordinate Judge, Pudukottai partly reversing the judgment and decree dated 22.10.2003 made in O.S.No.234 of 1998 on the file of Additional District Munsif, Pudukottai.)

1. The plaintiff in the original suit is the appellant in the second appeal. She filed the suit for declaration, mandatory injunction and recovery of possession. The learned trial Judge, after trial decreed the suit with cost granting the reliefs of declaration and mandatory injunction and dismissed the suit in respect of the prayer for recovery of possession. As against the said decree of the trial court dated 22.10.2003 made in O.S.No.234/1998, the defendant preferred an appeal in A.S.No.28/2006 on the file of the lower appellate court (Sub court, Pudukottai). The learned lower appellate Judge allowed the appeal in part, confirmed the decree of the trial court regarding the relief of declaration, set aside the decree in respect of the relief of mandatory injunction and dismissed the suit in respect of the mandatory injunction also. As against the said decree of the lower appellate court dated 31.08.2006, the plaintiff in the original suit has preferred the present second appeal on various grounds set out in the Memorandum of grounds of second appeal.

2. The second appeal was admitted on 07.08.2009 noticing the following to be the substantial question of law involved in the second appeal:

"Whether the learned Subordinate Judge is correct in refusing to grant the relief of mandatory injunction while admittedly declaration is granted?"

3. The arguments advanced on both sides were heard. The judgments of the Courts below and the records sent for from the courts below were also perused.

4. The case of the appellant in the second appeal/plaintiff in brief, is, as follows:

i) The suit property, namely a land measuring east-west 37' and north-south 72' comprised in old S.No.226/4A4 and New S.No.228/2A4B1 having an extent of approximately 6 cents, within the defined boundaries along with a tiled shed measuring 6' x 15' situated on the south-eastern corner of the said property and other properties originally belonged to Saradha @ Saradhambal and the suit property at that point of time was only a vacant site. From 1971, the plaintiff occupied the said property and started enjoying the same constructing a house on a portion and using the rest of the extent as land appurtenant to the building.

ii) While so, on 29.03.1993, the appellant herein/plaintiff purchased the land from Saradhambal under a sale deed for valuable consideration. The respondent/defendant did not have any title or right in respect of the suit property. However, on 17.10.1996, the respondent/defendant encroached upon a portion of the suit property and put up a tiled shed with mud walls occupying a portion measuring 15' x 6'. The efforts made by the plaintiff to prevent the encroachment by approaching the police proved futile. Thereafter, the plaintiff issued a Lawyer's notice on 31.10.1996 for which the respondent issued a reply dated 27.11.1996 containing false and untenable averments. Several areas comprised in the suit survey number had been sold to others and the purchasers are in possession of those portions and they have put up their residential houses therein. At no point of time, the defendant purchased the suit property by any oral sale. In any event, the plaintiff has perfected title by adverse possession. Hence the title of the plaintiff in respect of the suit property should be declared, the defendant should be directed by a mandatory injunction to remove the constructions put up by him and hand over possession of the encroached portion after such removal of the superstructure to the plaintiff.

5. The suit was resisted by the respondent herein/defendant making the following contentions:

One Somasundara Pandaram had filed a suit in O.S.No.243/1998 against the defendant for the relief of permanent injunction. The said suit was filed based on his contention that the entire extent of 34 cents comprised in S.No.226/2A4B1 was leased out to the defendant on 19.10.1993. The south-east portion of the suit property measuring 6' x 15' is part of the above said 34 cents. Hence the contention of the plaintiff that the defendant encroached upon that portion on 17.10.1996 is false. The suit property originally belonged to Somasundara Pandaram. Saradha @ Saradhambal did not have any right, title or enjoyment in respect of the suit property. The plaintiff has taken a contradictory plea that she has perfected title by adverse possession, while claiming to have purchased the suit property from Saradha @ Saradhambal on 29.03.1993. The lease arrangement between Somasundara Pandaram and the defendant was made on 19.10.1973 and after the expiry of the lease period, the said Somasundara Pandaram sold the above 34 cents of the property for a sum of Rs.8,500/- adjusting the advance amount of Rs.250/- paid by the defendant and receiving the balance amount of Rs.8,250/- towards the sale consideration. The plaintiff, who is aware of the above said particulars, unnecessarily filed the suit, based on false claims with a view to cause problem and hurdles to the defendant in respect of his enjoyment of the suit property. Hence the suit should be dismissed with compensatory cost of Rs.3,000/-.

6. Necessary issues were framed and three witnesses were examined PWs.1 to 3 on the side of the plaintiff and two witnesses were examined as DWs.1 and 2 on the side of the defendants. Exs.A1 to A6 were marked on the side of the plaintiff, whereas Exs.B1 to B9 marked on the side of the defendant. Four documents produced by PW were marked as Exs.X1 to X4.

7. The plaintiff claims that the suit property originally belonged to Saradha @ Saradhambal and from her she got the property by way of sale under a sale deed dated 29.03.1993. A certified copy of the said sale deed has been marked as Ex.A1. Since the defendant denied the title of the predecessor of the plaintiff, Exs.X1 to X4, namely copies of Chittas and pattadhar list were produced. On the other hand, the defendant has not produced any document showing the title of Somasundara Pandaram from whom he claims to have purchased.

8. Admittedly, the sale consideration for the alleged purchase was more than 100 rupees (in this case Rs.8,500/-). Hence, there cannot be any oral purchase or purchase under an unregistered sale deed. Only certain house tax receipts in the names of Gomathi, Kalyani and house tax demand notices in the names of Gomathi and Kalyani came to be produced on the side of the defendant. Both the courts below, upon considering the oral and documentary evidence adduced on both sides, rendered a concurrent finding that the plaintiff was able to prove her title in respect of the suit property and that she was entitled to a decree for declaration. So far as the said decree for declaration is concerned, the findings of the courts below are concurrent and no second appeal has been preferred by the defendant challenging that part of the decree of the lower appellate court confirming the decree of the trial court granting the relief of declaration. Hence we can safely conclude that the said part of the decree has become final.

9. The learned trial Judge chose to render a finding that the tiled shed measuring 6' x 15' situated on the south-eastern corner of the suit property had been put up by the defendant encroaching upon that portion on 17.10.1996 and that hence the plaintiff was entitled to the relief of mandatory injunction for the removal of the said shed. The alleged encroachment and construction of the shed with mud walls and tiles on 17.10.1996 was held to be proved by the plaintiff. The suit came to be filed on 28.07.1998, within three years from the date of alleged encroachment. Hence the learned trial Judge held that the plaintiff was entitled to the relief of mandatory injunction for the removal of the superstructure, besides the relief of declaration of her title in respect of the entire suit property. The said finding of the trial court is based on proper appreciation of evidence and sound reasoning. However, the learned lower appellate judge gave a novel reasoning to differ from the finding of the trial court and set aside that part of the decree granting the relief of mandatory injunction directing the removal of the shed put up by the defendant on the south-eastern corner of the suit property.

10. The learned lower appellate judge made an observation that the plaintiff could have taken a photograph of the shed allegedly put up by the defendant on the south-eastern corner of the said property to prove that such an encroachment was made and such a shed had been put up. The learned lower appellate judge also held that the plaintiff could have sought for appointment of an Advocate-Commissioner to find out the existence or otherwise of the shed on the south-eastern portion of the suit property and that since the plaintiff failed to do so, it could not be held that the defendant encroached upon a portion measuring 6'x 15' on the south-eastern corner of the suit property and put up a shed therein. Based on the said reasoning, the learned lower appellate Judge has chosen to reverse the judgment and decree of the trial court so far as the relief of mandatory injunction is concerned.

11. For arriving at such a conclusion, the learned lower appellate Judge has not discussed the evidence adduced on both sides. Being the final court of appeal on facts, the lower appellate court ought to have referred to the evidence, re-appraised the same and then arrived at a conclusion as to whether the finding of the trial court was correct or not. On the other hand, what the lower appellate court did was to find fault with the plaintiff for not producing any document to show the existence of a shed on the south-eastern portion alleged to have been put up in encroachment of the south-eastern corner of the suit property. While doing so, the learned lower appellate Judge has not chosen to consider the fact that the defendant did not deny that he had put up a shed on the south-eastern corner of the suit property and that it is no one's case that there was no Shed in the south-eastern corner of the suit property. On the other hand, the defendant had claimed that the entire extent of 34 cents comprised in the suit survey number had been purchased by him from one Somasundara Pandaram in 1976 itself for a sum of Rs.8,500/-.

12. Both the courts below rightly held that the claim of the defendant having purchased the said property had not been substantiated. What the defendant contended in his written statement was that the shed measuring 6 x 15 shown to be put up in the south-eastern corner of the suit property was comprised in the 34 cents purchased by him from Somasundara Pandaram. It is not the defendant s case that the description of property is not proper and the location of the shed has been disputed. The evidence of the witnesses examined on the side of the plaintiffs as PWs.1 to 3 make it abundantly clear that the shed measuring 6 x 15 occupies the south-eastern corner of the suit property. In fact the defendant, who deposed as DW1 has claimed that the suit property belongs to him by virtue of a sale made in his favour by Somasundara Pandaram in 1976. He has also made a clear admission that he put up the construction in the suit property. He has also admitted that Exs.B1 to B4 were the receipts obtained by him from the Panchayat in the name of his wife in respect of the suit property. Exs.B5 to B7 are the other set of tax receipts obtained in the name of his mother-in-law. It was his clear admission that the property for which he got the tax receipts under Exs.B1 to B7 include the suit property "jhth brhj;ij cs;slf;fp Vw;gl;l urPJ". He has also admitted in clear terms that he did not know anything about the family of Somasundara Pandaram. He pleads absence of knowledge as to whether Saradhambal was the sister of Somasundara Pandaram. He has also made an admission that Somasundara Pandaram himself filed the suit O.S.No.243/1998 and 228/2000, the first one for ejectment and the second one for mandatory injunction directing removal of the superstructure on the basis of the contention that the defendant put up a construction even during the pendency of the earlier suit. Though he would claim that he purchased the property in 1976 from Somasundara Pandaram, he is not in a position to mention the date or method of such purchase. He claims that he verified the title of Somasundara Pandaram from the deed of power of attorney, the said Somasundara Pandaram was having with him. That itself will amount to an admission that Somasundara Pandaram was not the owner and he purported to act as agent of someone else. He also pleaded absence of knowledge as to whether the suit property was the property of Sabapathi Pandaram, the father of Somasundara Pandaram and whether Somasundara Pandaram and Saradhambal alone were the legal heirs of Sabapathi Pandaram.

13. Be that as it may, it has been candidly admitted by DW1 himself that the shed shown to be in existence on the south-eastern corner of the suit property is there in existence and he had put up the same. When such an admission is there and the location of the said shed is not disputed, moreover when the plaintiff has adduced sufficient evidence to prove the existence of such shed, it is quite surprising the learned lower appellate Judge has chosen to hold that the plaintiff ought to have proved the existence of such shed put up by the defendant in south-eastern corner of the suit property either by producing the photograph or by seeking appointment of an Advocate-Commissioner. The said approach made by the learned lower appellate Judge is quite unwarranted and improper. The above said finding rendered by the learned lower appellate judge can even be termed perverse. Having held that the title in respect of the entire suit property rests with the plaintiff, the learned trial Judge seems to have searched for points for denying the relief of mandatory injunction and the above said finding of the learned lower appellate judge is nothing but the result of such an approach made by the lower appellate judge. Hence this court does have no hesitation in coming to the conclusion that the conclusion arrived at by the learned lower appellate Judge that the plaintiff failed to prove the encroachment on the south-eastern corner of the suit property and the existence of the 6 x 15 shed and that hence she was not entitled to the relief of mandatory injunction, is discrepant, infirm and perverse. Having held that the plaintiff has proved her title in respect of the entire suit property, the denial of the relief of mandatory injunction for the removal of the superstructure put up by the defendant on the south-eastern corner of the suit property, when the existence of such superstructure is not denied by the defendant and on the other hand he claimed that the entire suit property including the superstructure belonged to him, is not in accordance with law. The substantial question of law on which the second appeal came to be admitted has got to be answered accordingly in favour of the plaintiff.

14. In view of the answer give to the Substantial Question of law holding that the lower appellate court having upheld the title of the plaintiff in respect of the entire suit property, was not justified in denying the relief of mandatory injunction in respect of the shed put up in the south-eastern corner of the suit property, the second appeal is bound to succeed with the result that, that part of the decree of the lower appellate court declining the relief of mandatory injunction shall be reversed and the decree passed by the trial court in respect of the mandatory injunction also shall stand restored and confirmed.

In the result, the second appeal is allowed. The decree of the lower appellate court, namely the Court of Subordinate Judge, Pudukottai dated 31.08.2006 made in A.S.No.28 of 2006 regarding the relief of mandatory injunction alone is set aside. The judgment and decree dated 22.10.2003 made in O.S.No.234 of 1998 by the learned Additional District Munsif, Pudukottai are restored and confirmed. However, there shall be no order as to cost.