Dismissed

Boomadevi v. Ramachandran

Madras HC5 Apr 2022SA(MD)/776/2010

Case brief

AI extract

What is this about?

Second appeal challenging the reversal of a lower court order dismissing a suit for mandatory injunction to remove a pipe installed in a common pathway. The High Court held the suit was not time-barred and the pipe constituted an encroachment, affirming the order to remove it.

What did the court decide?

The Second Appeal is dismissed affirming the lower court order to remove the pipe. The respondent may request the appellant to retain the pipeline under agreed terms with compensation.

Boomadevi Vs Ramachandran — Partition | Madras HC (2022)

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S.A.(MD)No.776 of 2010

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 05.04.2022

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CORAM:

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THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN

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S.A.(MD) No.776 of 2010

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1.Boomadevi

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2.Munnamalayandi .. Appellants/Respondents/ Defendants

-vs-

1.Ramachandran

2.Sethu

.. Respondents/Appellants/ Plaintiffs

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Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree passed in A.S.No.85 of 2008 dated 28.07.2009 on the file of the 1^st Additional Sub-Court, Madurai reversing partly the judgment and decree passed in O.S.No.86 of 2006 dated 26.03.2008 on the file of the District Munsif Court, Melur.

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For Appellants : Mr.V.Meenakshi Sundaram for Mr.P.Nallathambi

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For Respondents : Mr.Gnanagurunathan for Mr.K.Samidurai ******

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JUDGMENT

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The defendants in O.S.No.86 of 2006 on the file of the District Munsif, Melur are the appellants in this Second Appeal. The suit was filed for the relief of mandatory injunction to direct the defendants to remove the suit pipe shown as “C2” in the rough sketch and for other reliefs. The defendants filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial court framed the necessary issues. The 1^st plaintiff, Ramachandran examined himself as P.W.1. Ex.A1 to Ex.A8 were marked. The 2^nd defendant, Munna Malaiyandi examined himself as D.W.1, while one Pandi was examined as D.W.2. Ex.B1 to Ex.B4 were marked. After consideration of the evidence on record, the trial court by judgment and decree dated 26.03.2008, dismissed the suit. Challenging the same, the plaintiff filed A.S.No.85 of 2008 before https://hcservices.ecourts.gov.in/hcservices/

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S.A.(MD)No.776 of 2010

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the I-Additional Sub Court, Madurai. By the impugned judgment and decree dated 28.07.2009, the first appellate court reversed the decision of the trial court and partly allowed the appeal. Challenging the same, this Second Appeal came to be filed.

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The Second Appeal was admitted on 09.03.2022 on the following substantial question of law:-

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“Whether the first Appellate Court is correct in granting mandatory injunction when the plaintiff himself admitted that the defendants have put up their house 15 years back and as such claim of mandatory injunction is barred by limitation?”

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During the pendency of the appeal, the 1^st appellant passed away. However, there was no necessity to take steps because the 2^nd appellant, who is her legal heir, is already there on record.

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The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial question of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial court.

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Per contra, the learned counsel appearing for the respondents submitted that the impugned judgment and decree do not call for any interference.

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I carefully considered the rival contentions and went through the evidence on record. The suit property is a common pathway comprised in S.No.115/87-C in Vandiyur Village and measures 4 feet x 39.7 feet. The suit property originally belonged to one Seeni @ Periya Karuppan Ambalam. The 1^st plaintiff was born to the said Seeni @ Periya Karuppan Ambalam through his first wife. The 1^st defendant is the 2^nd wife of Seeni @ Periya Karuppan Ambalam, while the 2^nd defendant was born to him through the 2^nd wife. Partition took place on 28.02.1977 and the family properties were divided. The certified copy of the registered partition deed was marked as Ex.A1. There is no dispute that the suit property is a common pathway.

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The grievance of the plaintiff is that the defendants have unauthorisedly and without getting their permission installed a pipe described as “C2” so as to reduce the width of the common pathway. The defendants pleaded that the suit pipe has been virtually affixed on their wall and that it does not affect the right of the plaintiffs to use the common pathway in any manner. The defendants also denied that they have any intentions to dig borewell in the common pathway.

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

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S.A.(MD)No.776 of 2010

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Now the only question that arises for consideration is whether the suit pipe described as “C2” has to be removed or not. While the trial court held that the same need not be removed, the first appellate court came to the conclusion that it is liable to be removed.

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The learned counsel appearing for the appellant contended that the prayer for mandatory injunction is clearly barred by limitation because the house was put up some 15 years ago and that the pipe line is only on their eastern wall. This contention does not have any force for the simple reason that the suit was filed in the year 2006 only for the removal of the pipe and nothing else. Admittedly, the pipe was laid only in 2006. Even permission from the Public Works Department was obtained only on 19.06.2006 (Ex.B3). Therefore, the suit for mandatory injunction is very much within time. I therefore, answer the substantial question of law against the appellant.

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The next contention strongly advanced by the learned counsel appearing for the appellant is that the defendants are entitled to use the common pathway to their maximum advantage and that by no stretch of imagination, the right of the plaintiffs to enjoy the pathway is not affected, as the suit pipe line has circumference of hardly 3 inches and the plaintiffs can as before reach their property that is lying on the Northern side through the suit pathway. The learned counsel relied on the decision rendered in S.A.No.686 of 2004 dated 09.04.2018 and S.A.No.1822 of 2004 dated 06.07.2018. Though the proposition canvassed by the learned counsel is quite sound, coming to the facts and circumstances of the case, it is to be noted that the common pathway is a very small one. It has a width of just 4 feet. If 3 inches is excluded or deducted, certainly the width would get permanently minimised. Therefore, to that extent, the plaintiffs can be said to have suffered injury and infraction of their rights. In more or less similar circumstances, a learned Judge of this Court vide judgment dated 16.12.2011 in S.A. (MD) No.76 of 2010 held that so far as the common pathways are concerned, it should be taken as an invariable and inflexible rule that whenever there is an encroachment by any of the common owners, they should necessarily be ordered to remove such encroachment. It was further held that the surface of the pathway must be made available to both sides as a common passage fully. This decision, in my view, squarely applies to the case on hand. I come to the conclusion that the first appellate court has not committed error either in applying the law or in appreciating the facts of the case. I do not find any merit in this Second Appeal and the same stands dismissed. However, the 2^nd appellant, Munna Malayandi is at liberty to approach the plaintiffs seeking their permission to retain the offending pipeline. He also states that he would be willing to appropriately compensate the plaintiffs. After all the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ have been made to fight their battle before three Courts from Munsif

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S.A.(MD)No.776 of 2010

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Court to the High Court. In the event of the plaintiffs agreeing to the 2^nd appellant's request, well and good. In the event of the plaintiffs not acceding to the 2^nd defendant's request, the 2^nd defendant will be granted sufficient time to make appropriate alterations. No costs.

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Sd/Assistant Registrar(CS-III)

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// True Copy //

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/ /2022 Sub Assistant Registrar(CS) abr Note:-

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In view of the present lock down owing to COVID19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate / litigant concerned.

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1.The 1^st Additional Sub Judge, Madurai. 2.The District Munsif, Melur.

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Copy to The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai. +1 CC to M/s.K.SAMIDURAI, Advocate ( SR-16648[F] dated 05/04/2022 ) +1 CC to M/s.D. NALLATHAMBI, Advocate ( SR-17256[F] dated 07/04/2022 ) S.A.(MD) No.776 of 2010 05.04.2022

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SS(CO) TR(27.04.2022) 4P 7C

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

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Boomadevi v. Ramachandran

Case brief

What is this about?

What did the court decide?

Boomadevi v. Ramachandran

Case brief

What is this about?

What did the court decide?

What the court decided

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