Dismissed

Subbaraya Gounder v. Ponnathal

Madras HC10 Apr 2014SA/1162/2006

Case brief

AI extract

What is this about?

Second Appeal dismissed. Court held that since the suit property was public cart-track, no eviction was required as it belonged to government. Mandatory injunction to remove borewell was correct to prevent obstruction and permanent structure, making permanent injunction redundant.

What did the court decide?

Mandatory injunction to remove borewell confirmed; Second Appeal dismissed.

Subbaraya Gounder Vs Ponnathal — Landlord and Tenant | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 10 - 04 – 2014

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Coram

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The Hon'ble TMT. JUSTICE PUSHPA SATHYANARAYANA

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Second Appeal No. 1162 of 2006 and M.P. No. 1 of 2006

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Subbaraya Gounder
2. Lakshmi .. Appellants /Defendants 1 & 2
vs.
1. Ponnathal
2. S. Palanisamy
3. Eswaramoorthy
4. The Superintending Engineer
Tamil Nadu Electricity Board
Erode
5. The Assistant Executive Engineer
Tamil Nadu Electricity Board
Arachalur
6. The Assistant Engineer (O&M)
Tamil Nadu Electricity Board
Kandasamy Palayam
Sivagiri .. Respondents /
Plaintiffs/Defendants 4 to 6

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Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 24.03.2005 in A.S. No. 45 of 2004 on the file of the Principal Subordinate Judge, Erode confirming the judgment and decree dated 25.6.2004 made in O.S. No. 83 of 2001 on the file of the District Munsif - cum - Judicial Magistrate, Kodumudi.

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For Appellants : Mr. V. Bharathidasan

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JUDGMENT

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Aggrieved by the judgment and decree dated 24.03.2005 passed by the Principal Subordinate Judge, Erode, in A.S. No. 45 of 2004 wherein and by which the judgment and decree dated 25.06.2004 passed by the District Munsif - cum - Judicial Magistrate, Kodumudi, in in O.S. No. 83 of 2001 filed for the relief of mandatory injunction to remove the borewell sunk on the suit cart-track, was confirmed, the defendants 1 and 2 have come up with this Second Appeal.

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The case of the plaintiffs is that they inherited the suit property, which was allotted to one Sengoda Gounder alias Sengappa Gounder, by virtue of a partition deed dated 02.9.1963. The suit property is a cart-track situate in R.S. No. 86 which corresponds to old S. No. 112/1 and borewell sunk by the defendants 1 and 2 on the cart-track. The cart-track is the panchayat poramboke property and to the east of the cart-track, the plaintiffs' land is situate while the defendants' property is situate at the west of the carttrack. Both of them have cultivated their lands. There is a well in the plaintiffs' property. While so, on 07.7.2001, the defendants 1 and 2 sank a borewell 15' away from the plaintiffs' well in the suit cart-track and according to the plaintiffs, such an action of the defendants would deplete the water level in their well. That apart, the borewelll was sunk by the defendants on the suit cart-track which is common to the adjacent owners and sought for service connection from the defendants 3 to 5. The further case of the plaintiffs is that if the defendants are allowed to get the service connection to the suit property, the usage of the cart-track will be obstructed and, therefore, they effected a notice on 14.7.2001 with a copy to the defendants 4 and 5 who are the electricity authorities. The defendants 4 and 5 did not respond to the notice and the defendants 1 and 2 made arrangements on 20.7.2001 to put up a permanent structure and set up the pump set for the borewell. Inspite of the objections by the plaintiffs, the defendants 1 and 2 were trying to create the permanent structure. Therefore, the suit was filed seeking for mandatory injunction to remove the borewell and permanent injunction not to change the service connection to the borewell.

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The case of the defendants 1 and 2, who resisted the suit was that the suit property was never allotted to the plaintiffs and that the plaintiffs had no right or title over the suit property. It is admitted that the plaintiffs' property is on the east and the defendants' property is on the west of the cart-track and also there was an unused land of 10' to 15' breadth in between the lands. According to the defendants, that unused land was also not even and the said land was used by the owners on the north and south and that the boundaries of the defendants are never fixed in R.S. No. 86.

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The defendants had also admitted that on the alleged suit cart-track, they were in possession of an extent between 3' and 10' and that they have been enjoying the encroached portion from time immemorial and that now, they had sunk a borewell by spending a lot of money. Though it is admitted by the defendants that they sank a borewell on the suit cart-track, it was only an one inch air pipe and 1½ inch water pipe under the ground. Therefore, according to the defendants, they are not hindering the easy usage of the cart-track. Hence, sought for dismissal of the suit.

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Before the trial Court, the third plaintiff examined himself as P.W.1 besides examining one Palanisamy Gounder as P.W.2 and marked Exs. A.1 to A.6. On the side of the defendants, the first defendant Subbaraya Gounder examined himself as D.W.1 besides examining one Songappa Gounder as D.W.2 and one Vijayan, fifth respondent, who was employed as Assistant Engineer, Tamil Nadu Electricity Board at Kandasamypalayam as D.W.3 but no document was marked. The Commissioners' reports were marked as Exs. C.1, C.3 and C.4 while the plan of the surveyor was marked as Ex.C2.

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The trial Court, after considering the pleadings, evidence and the issues elaborately, had declined the relief of permanent injunction but decreed the relief of mandatory injunction directing the defendants to remove the borewell on the suit cart-track and restore the original position. Aggrieved, the defendants 1 and 2 have preferred the above appeal in A.S. No. 45 of 2004 and the Lower Appellate Court, on appreciation of the evidence and the materials available thereon, confirmed the decree of the trial Court dismissing the First Appeal. Feeling aggrieved, the defendants 1 and 2 have preferred this appeal.

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At the time of admission of this Second Appeal, the following substantial questions of law were framed for consideration:-

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(i) Have not the Courts below committed error of law in not holding that unless the appellants are evicted by due process of law by competent authorities, a decree for mandatory injunction cannot be granted?

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(ii) Have not the Courts below committed error of law in not holding that in view of the Commissioner's report showing no existence of pathway or cart tract, a decree for mandatory injunction cannot be granted?

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(iii)Have not the Courts below committed error of law in not holding that without a prayer for evicting the appellants, the suit cannot be decreed?

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Heard Mr. V. Bharathidasan, learned counsel appearing for

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the appellants and Mr. V.S. Kesavan, learned counsel appearing for the respondents 1 to 3 as well as Mr. N. Muthuswami, learned counsel representing the respondents 4 to 6 and perused the records.

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It is seen from the materials available on record that the suit property is a cart-track situate in S. No. 86 which is sandwiched between the plaintiffs' property in S. No. 243 and the first and second defendants' property in S.No. 87. The second defendant is the wife of the first defendant and the plaintiffs are the legal heirs of Sengoda Gounder alias Sengappa Gounder. It is an admitted fact that the suit property is a Government poramboke and, therefore, it does not belong to either of the parties. The case of the plaintiffs is that because of the action of the defendants 1 and 2 who had sunk a borewell on 07.7.2001 on the suit cart-track, ie., east of the defendants' land, the usage of the carttrack by them, was obstructed. The defendants also admitted the fact that they have sunk a borewell. The further case of the plaintiffs is that if the defendants are allowed to get the service connection to the borewell, it may lead to a permanent structure in the suit property which would hinder their easy ingress and egress as well as the other land owners on the north from taking their carts or tractors through the suit property. The plaintiffs, being the owner adjacent to the suit property, have got every right of ingress and egress at every point from their land. The act of the defendants now takes away their right of using the cart-track for taking tractor to the north or south of their property.

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P.Ws. 1 and 2 have deposed that the suit property is a public poramboke which is running north and of a length of 25' to 30'. Originally, the defendants tried to put up motor room, which was thwarted by the plaintiffs as the same would cause hindrance to the other users. Even according to the defendants, it is admitted that though there is no specific cart-track, there is an unused land of a length of 10' to 15' and the defendants further contend that the said unused land is uneven and the adjacent owners have been encroaching the same and attached it to their ownership lands. Therefore, there is no continuous cart-track as alleged by the plaintiffs. According to the defendants, the entire property starting from the defendants' side, goes as a slope towards the plaintiffs' property. The defendants' lands are situate 2½' lower in level from the suit property and the plaintiffs' property is situate 6' lower in level on the east. Even according to the admission of the defendants, one can presume that the suit cart-track is on a slightly elevated corridor.

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It was further contended by the defendants that they had spent considerable amount on sinking the borewell and the plaintiffs who are adjacent owners have acquiesced to the act of the defendants. Therefore, they are estopped from challenging the same at this stage. But from the pleadings and the evidence, it can be seen that the defendants had sunk the borewell on 07.7.2001 whereas the plaintiffs

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have issued notice to the respondents 4 and 5 on 14.7.2001 asking them to refrain from giving service connection to the borewell sunk in S.No. 86. Therefore, it cannot be stated that the plaintiffs have acquiesced to the act of the defendants.

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It is also to be noted that a Commissioner, who was appointed in this case to note down the physical features of the property, has filed his report dated 04.6.2002, which was marked as Ex.C.1. The relevant passage found in the report of the Commissioner reads as follows:-

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"//// nkw;go jhth ,lj;ijg; ghh;itapl;Lk;. g[jpa kw;Wk; giHa epyj;jo MH;FHha; fpzw;wpw;F ,ilapy; cs;s gFjpiaj; njhz;og; ghh;j;njd;/ mjw;F ,ilapy; ve;j xU bjhlh;g [ FHha; ,izg;ngh. kpd; ,izg;ngh ,y;iy/ nkYk; epy msitapy; nkw;go jhth brhj;ij mse;J mj;Jf; fhl;oajpy; jhth brhj;jhfpa tz;og; ghijapy; epy msitah; gr;irf; fyhpy; Fwpg;gpl;Ls;s gFjpfs; KGtija[k; 1. 2 gpujpthjpfs; Mf;fpukpg;g[ bra;J fUk;g[ gaph; bra;Js;shh;fs;/ nkw;go epy msitah; jhf;fy; bra;Js;s tiuglj;jpy; rpfg;g[ mk;g[f; Fwpapl;l gFjpapy; g[jpa nghh;bty; cs;sJ/ mJ nkw;go jhth brhj;jhd tz;og;ghijapy; cs;sJ vd;W epy msitah; Fwpg;gpl;lhh;/ "

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From the above passage, it is clear that the Commissioner had gone to the suit property and measured the same with the help of the Surveyor and the Surveyor has also furnished his plan which is marked as Ex.C.2.

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A perusal of the records would also show that the warrant of the Commissioner was re-issued for the second time. The Commissioner had visited the suit property for the second time and filed his report dated 19.11.2003 wherein he has stated as follows:-

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"jhth brhj;jhdJ KU';fpahk;ghisaj;jpy; mike;Js;sJ/ i& jhth brhj;J fpHnky; tz;og;ghijapypUe;J thjpfs; kw;Wk; 1. 2 gpujpthjpfs; g{kpfSf;F ,ilna bjd;tlyhf mike;Js;sJ/ mij vdJ tiuglj;jpy; 'Vgprpo'; vd;W Fwpg;gpl;Ls;nsd;/ vdJ Ke;ija mwpf;ifa[ld; jhf;fy; bra;Js;s epy msitahpd; tiuglj;jpy; gr;irf; fyhpy; Fwpg;gplg;gl;Ls;s gFjpf;F fpHg[wkhf i& 'Vgprpo' tz;og; ghij mike;Js;sJ/ mjpy; vdJ tiuglj;jpy; rpfg;g[ fyhpy; Fwpg;gpl;Ls;s gFjpapy; kl;Lk; tz;og;ghijia rkd; bra;ag;gl;Ls;sJ/ i& 'Vgprpo' tz;og;gijapy; ehd; ghh;itapl;Lf; bfhz;oUe;j nghJ thjpfspd; g {kpapypUe;J xU onuf;lh; obua;yh; cld; tlf;nf te;J i& fpHnky; tz;og;ghij tHpahf btspapy; brd;wJ/ "

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From the reports of the Commissioner and the evidence of D.W.1, it can be seen that admittedly, the defendants have sunk a borewell in the suit property which is the cart-track. The said act of the defendants has hindered the free movement of the plaintiffs for their agricultural activities. D.W.5, Vijayan, who was employed as Assistant Engineer in the Electricity Department, has deposed that the Department has got no intention of giving service connection to the suit property because it is a Government poramboke. Therefore, the plaintiffs, who have no manner of right or title with the suit property excepting the usage, cannot seek any relief against the Electricity Department. However, as contended by the said witness, the trial Court as well as the Lower Appellate Court have not decreed for the relief of permanent injunction.

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From a perusal of the reports of the Commissioner, evidence on the side of the plaintiffs and also the admission by the defendants, it can be seen that the cart-track is in existence. Admittedly, the defendants' lands also situate adjacent to the carttrack. They can have the borewell sunk in their patta land for which nobody can have any objection. However, when the defendants are trying to encroach upon common cart-track deliberately, it is objectionable. The defendants also have the audacity to contend that the other owners having adjacent lands to the suit property, who have also encroached an extent of 5 to 10' from their respective patta lands,

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cannot justify the action of the defendants. The act of the defendants in sinking the borewell would deplete the water level underground which is the basic apprehension of the plaintiffs. Though the defendants had contended that the pipelines for the borewell have been embedded at least 4' under the ground and that will not cause any hindrance to the users of the cart-track, it cannot be accepted because in the event of getting a service connection to the same, necessarily, a permanent structure has to be built on the cart-track which cannot be permitted. Therefore, the contention of the defendants / appellants cannot be accepted.

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Learned counsel for the appellants, in support of his contention, relied on the decision of the Hon'ble Supreme Court in Bachhaj Nahar vs. Nilima Mandal and another reported in 2008 (17) SCC 491, more particularly, relied on paragraph 19 of the judgment, which reads as follows:-

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“Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any

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declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.”

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I am afraid, the above proposition may not be applicable to the case on hand because the question of easement does not arise as the plaintiffs are seeking only to injunct from obliterating the suit cart-track and not claiming any right to easements against the defendants.

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Learned counsel appearing for the respondents 1 and 2 placed reliance on the decision of this Court in K.V.K. Janardhanan vs. The State of Tamil Nadu reported in 1995 – 1 – L.W. 451 and referred to paragraph 9 of the judgment, which reads as under:-

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".... In Godavari Bai v. Cannanore Municipality (AIR 1985 Kerala 2), wherein it is held as under :

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"Where the Municipal Council constructed bunks on the road margin, pathway, of a public street and the land adjoining the street was owned by a private party, the construction could not be said to be permissible in that the road margin is a part of the public street and the Municipality has no right to construct buildings on public streets vested in the Municipal Council under S. 77 and also because the plaintiff, the owner of land adjoining the public street, has a right of access at every point where her land adjoins the public street".

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It is clear from the ratio laid down in the above decisions that neither the Government nor the Municipality or any local body has got every right to put up any obstruction over the public street so as to prevent it from having any access to the adjoining land. It has been repeatedly held that the owner of the land adjoining the public street has got a right of access at every point where his or her land adjoins public street. In view of the above ratio, the fencing of an iron fence put up between the land of the petitioner and that of the suit carttrack is illegal and on that ground alone the petitioners are entitled to an order of injunction as prayed for....”

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Learned counsel for the respondents also placed reliance on the decision of the Hon'ble Apex Court in Hari Ram vs. Jyoti Prasad and another reported in 2011 (3) CTC 769 and more particularly relied on paragraph 17 wherein it has been observed as follows:-

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"The High Court after considering the aforesaid plea held that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exists a continuing cause of action. The records disclose that initially a complaint under Section 133 of Cr.PC was filed which was pursued with all sincerity upto the High Court. But the High Court held that the dispute between the parties could be better resolved if a proper civil suit is filed and when evidence is led with regard to the disputed questions of fact. We find from the records that immediately thereafter the aforesaid suit was filed seeking issuance of a mandatory injunction. In view of the aforesaid facts and also in view of the fact that encroachment on a public street by any person is a continuing cause of action, we find no merit in the said contention."

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When the relief of mandatory injunction directing the defendants 1 and 2 to remove the borewell on the suit cart-track has been granted, the relief of permanent injunction sought for by the plaintiffs becomes redundant. In such factual and legal position, the Courts below have rightly refused to grant the relief of permanent injunction against the respondents 3 to 5 who are the electricity authorities and I am of the opinion that the concurrent finding of the Courts below is correct and no interference is warranted by this Court. As such, no question of law, much less, substantial question of law arises for consideration in this appeal.

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In the result, the Second Appeal fails and the same stands dismissed confirming the judgment and decree dated 25.6.2004 passed by the District Munsif - cum - Judicial Magistrate, Kodumudi, O.S. No. 83 of 2001 as affirmed by the principal Subordinate Judge, Erode, vide judgment dated 24.03.2005 in A.S. No. 45 of 2004. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.

Sd/

Asst.Registrar

//True Copy//

Sub.Asst.Registrar

gri

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The Principal Subordinate Judge Erode

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The District Munsif - cum - Judicial Magistrate Kodumudi

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+1 cc to Mr. V.S. Kesavan,Advocate, SR. No.17935

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+1 cc to Mr.V. Bharathidasan,Advocate, SR. No.17586

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S.A. No. 1162 of 2006

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ug(co)pmk.2.6.2014

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Subbaraya Gounder v. Ponnathal

Case brief

What is this about?

What did the court decide?

Subbaraya Gounder v. Ponnathal

Case brief

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