Dismissed

K. Gopalakrishnan v. R. Packirisamy

Madras HC3 Jun 2019SA/1495/2007

Case brief

AI extract

What is this about?

In a second appeal regarding a mandatory injunction over property boundaries, the High Court upheld the first appellate court's dismissal of the plaintiff's suit. The court found the plaintiff failed to prove encroachment due to survey errors and granted relief barred by laches and acquiescence, dismissing the appeal with costs.

What did the court decide?

Second appeal dismissed with costs; first appellate court's dismissal of plaintiff's suit upheld.

K. Gopalakrishnan Vs R. Packirisamy — Property and Title | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON :11.04.2019

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PRONOUNCED ON:03.06.2019

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CORAM:

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THE HON'BLE MR.JUSTICE T.RAVINDRAN

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K.Gopalakrishnan

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...Appellant/Plaintiff

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Vs.

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R.Packirisamy

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...Respondent/Defendant

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Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 17.08.2007 rendered in A.S.No.96 of 2005 on the file of the Subordinate Judge, Tiruvarur, reversing the judgment and decree dated 25.08.2005 rendered in O.S.No.71 of 2001 on the file of the District Munsif of Nannilam.

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For Respondent : Mr.Srinath Sridevan

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Challenge in this second appeal is made to the judgment and decree dated 17.08.2007 passed in A.S.No.96 of 2005 on the file of the Subordinate Court, Tiruvarur, reversing the judgment and decree dated 25.08.2005 passed in O.S.No.71 of 2001 on the file of the District Munsif Court, Nannilam.

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The second appeal has been admitted on the following substantial questions of law.

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1.Can the Appellate Court reverse the findings of the Trial Court without giving reasons for its disagreement with the findings of the Trial Court?

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2.Even when there was a delay on the part of the plaintiff to institute the suit for mandatory

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injunction, whether the plaintiff would not be entitled to the relief of compensation, moreso when the action initiated by the plaintiff was very much well with the time prescribed under the Limitation Act?

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3.Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

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For the sake of convenience, the parties are referred to as per the rankings in the trial court.

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5.Suffice to state that the suit has been laid by the plaintiff against the defendant for mandatory injunction and possession. As regards the relief of possession sought for by the plaintiff, the same has come to be declined by the trial court. The trial court has granted only the relief of mandatory injunction prayed for by the plaintiff, with reference to the removal of the flight of steps constructed by the defendant in the northern portion in R.S.No.216/4 projecting into R.S.No.216/3 to an extent of one foot in width, outside the boundary line of R.S.No.216/4. The first appellate court on an appreciation of the materials available on record, was pleased to set aside the judgment and decree of the trial court granting the relief of mandatory injunction in favour of the plaintiff and thereby dismissed the plaintiff's suit in toto. Impugning the same, the present second appeal has been laid.

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The point that has to be determined in this matter is whether the flight of steps put up/ constructed by the defendant is encroaching into the property belonging to the plaintiff. As could be seen from the materials available on record, the plaintiff examined as P.W.1 has admitted that the pillar put up by the defendant for the construction of the staircase is lying only in R.S.No.216/4. According to P.W.1, the staircase projects slightly into his property lying in R.S.No.216/3. Only with reference to the removal of the said projection, the relief of mandatory injunction is prayed for by the plaintiff against the defendant.

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To point out that the staircase put up by the defendant also extends into the plaintiff's property in R.S.No.214/3, the photographs Exs.A5 to A13 are placed by the plaintiff. The first appellate court has analysed the photographs and noted that the photographs point to the fence lying between the properties belonging to the plaintiff and the defendant and further noted that the so called extended portion of the staircase is not projecting beyond the fence and on the other hand, the extended portion of staircase is within the fence i.e., in R.S.No.214/4

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itself and not projecting into the plaintiff's property in R.S.No.214/3. Therefore, the abovesaid photographs projected by the plaintiff for sustaining his case as regards the relief of mandatory injunction cannot be countenanced.

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As above seen, the pillar erected for the resting of the staircase is lying only in R.S.No.214/4. The flight of steps putup by the defendant is also not touching the ground. It is just abutting the border of the wall put up by the plaintiff and extending slightly outwards. Even the extended projection of the staircase as abovenoted is found to be lying only within the R.S.No.214/4 and not lying/extended to R.S.No.214/3. On the other hand the plaintiff would rely upon the Commissioner's report and plan marked in the proceedings and would contend that the portion of the staircase is extended into the property belonging to him in R.S.No.214/3. On an appreciation of the Commissioner's report and plan in toto, it is found that there has been difference in the extent of the properties lying in the subdivisions of R.S.No.216 and it is seen that the said difference is found due to the erroneous measurements of the various subdivisions in R.S.No.216 during the survey. Furthermore, it is found that the Advocate Commissioner/ Surveryor appointed in the matter, had not measured the property belonging to the parties from south to the north and on the other hand, had measured the property only from north to south. There is no clear material worth acceptance on the part of the plaintiff that he has putup the fence abutting the borders based on his entitlement to his property. When the various properties comprised in the subdivisions of R.S.No.216 is found to be running shortage of an extent of a length of 0.8mts and the same is due to the wrong survey of the other properties in the various subdivisions of R.S.No.216, as rightly determined by the first appellate court, if the property belonging to the parties had been measured in both the directions ie., both from north to south and from south to north, it is seen that there would not have been any real encroachment made by the defendant into the property belonging to the plaintiff while constructing the staircase and the said factors had been assessed by the first appellate court, on a right appreciation of the materials available on record and I do not find any valid reason to deviate from the determination of the first appellate court.

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Insofar as this matter is concerned, at the foremost, the plaintiff has not come forward with the clear case as to the extent of the property lying in R.S.No.216/3 said to be belonging to him. When the said extent comprised in R.S.No.216/3 said to be belonging to the plaintiff itself is found to be not established, particularly as to whether the plaintiff had put up the fence portion within his limits, the case projected by the plaintiff that the flight of steps put up by the defendant while constructing the staircase is projecting

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into his property to a small level as such cannot be believed and accepted in the absence of any material clearly pointing to the same.

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From the available materials, it is seen that the defendant has putup the staircase over a period of time and not put up the same overnight. It is thus found that only to the knowledge of the plaintiff, the staircase had been put up by the defendant in the property. On the other hand, according to the plaintiff, the defendant taking advantage of his absence from the suit village, had put up the stair case in such a manner as to be projecting into his property in R.S.No.216/3. However, as rightly determined by the first appellate court, considering the evidence of the plaintiff, it is found that only to the knowledge of the plaintiff, the defendant had been putting up the construction in his property including the staircase and the plaintiff has been a silent spectator to the abovesaid construction put up by the defendant. In addition to that, even after the construction had been put up by the defendant including the staircase to the knowledge of the plaintiff, nearly 16 moths thereafter, it is found that the plaintiff has come forward with the suit to remove the same. Therefore, when the plaintiff is found to have not placed any resistance while the defendant had putup the construction in his property and furthermore, when the plaintiff has also not established that the staircase portion put up by the defendant is projecting into his property in R.S.No.216/3 and as above noted, considering the variation in the extents of the various properties comprised in the subdivisions of R.S.No.216 and the fact that the Advocate Commissioner / Surveyor had not measured the properties concerned in both the directions and on the other hand, endeavored to measure the properties only from north to south and not from south to north, thus, when it is seen that the Advocate Commissioner/Surveyor had not measured the properties by fixing the points belonging to both the parties in both directions, despite noting the construction of the staircase by the defendant for several months as abovenoted and thereafter, the plaintiff having leisurely come forward with the suit seeking the removal of the same, in such view of the matter, as rightly determined by the first appellate court, the plaintiff is not entitled to the relief of mandatory injunction prayed for on account of the laches and acquiescence of his part in allowing the defendant to put up the staircase even assuming for the sake of arguments, the flight of steps put up by the defendant is slightly protruding into the property belonging to the plaintiff in R.S.No.214/3. In any event, as abovenoted, the plaintiff has miserably failed to establish that there is encroachment made by the defendant in the construction of the staircase into the property of the plaintiff and in such view of the matter, the first appellate court is justified in not

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granting the relief of mandatory injunction prayed for by the plaintiff and has rightly set aside the judgment and decree of the trial court granting the said relief in favour of the plaintiff. No interference is called for in the judgment and decree of the first appellate court declining the relief of mandatory injunction prayed for by the plaintiff by setting aside the judgment and decree of the trial court with reference to the same.

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For the reasons aforestated, the substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendant.

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12.In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.

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Sd/-

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Assistant Registrar(CS-VI)

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//True copy//

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Sub Assistant Registrar

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mfa

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The Subordinate Judge, Sub Court, Tiruvarur.

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2.The District Munsif, District Munsif Court, Nannilam.

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Copy to

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The Section Officer,

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VR Section, High Court, Chennai.

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+1cc to M/s.Elizabeth Ravi, Advocate SR.No.44816

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S.A.No.1495 of 2007 and M.P.No.1 of 2007

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NMI(CO) GMY(10/12/2019)

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https://hcservices.ecourts.gov.in/hcservices/

K. Gopalakrishnan v. R. Packirisamy

Case brief

What is this about?

What did the court decide?

K. Gopalakrishnan v. R. Packirisamy

Case brief

What is this about?

What did the court decide?

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