In a second appeal regarding a dispute over a 5 feet setback, the High Court held that granting injunctions without a declaration of title is not maintainable when title is seriously disputed. The trial court's dismissal of the suit was confirmed.
Set aside the lower appellate court's judgment granting injunctions; confirm the trial court's dismissal of the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
SA.No.199 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2023
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
SA.No.199 of 2007
1.N.Selvaraj 2.T.Palaniyandi
... Appellants
Vs.
1.S.Amrithalingam
2.Murugavel
3.S.Subramanian
4.S.Aathiyappan
5.S.Shanmugavadivelu
6.Tmt.Parvathy
7.Vembarasi
8.Shiyama
9.Minor.Balakumar
[Rep. by his mother and natural Guardian, Tmt. Vembarasi,7th respondent.]
... Respondents
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SA.No.199 of 2007
PRAYER:
PRAYER: Second Appeal filed under Section 100 of the CPC, against the
judgement and decree of the Additional District Judge, Pondicherry at Karaikal made in A.S.No.60/2004 dated 24.08.2006 reversing the judgement and decree of the Principal District Munsif at Karaikal in OS.No.150 of 1999, dated 20.09.2004.
For Appellants : Mr.M.Krishnappan, Senior Counsel for
M/s.R.Swarnalatha
For Respondents : Mr.Sai Krishnan [R.6 to R.8]
: R.2 to R.5 served [Rep. by Power of Attorney - R.1] : R.1 [died vide order dated 03.08.2021] : R.9, Minor [Rep. by R.7.]
JUDGEMENT
The defendants as appellants before this Court seek to challenge the
judgement and decree passed by the Additional District Judge, Pondicherry at Karaikal in A.S.No.60 of 2004 in and by which the learned judge had reversed the judgment and decree passed by the Principal District Munsif at Karaikal. While narrating the facts of the case hereinafter, the parties are referred to in the same ranking as before the Principal District Munsif at Karaikal.
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SA.No.199 of 2007
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SA.No.199 of 2007
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and its appurtenances bearing Door No.12, (Old Door No.17) Abirami Amman South Street, and T.R.Pattinam. It is their case that the house and its appurtenances have been in existence for more than 100 years and they
have got the property under a Will dated 12.05.1975 executed by one Smt.
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Nagarathinam Ammal. The Will came into effect on the death of Nagarathinam Ammal in the year 1978, from which date the plaintiffs have become the absolute owners of the said property. The Will in question has in very clear terms mentioned that the eastern and western wall of the house belonged absolutely to the said Nagarathinam Ammal. The plaintiffs would contend that they have been in enjoyment and possession of the same from the year 1978. Since the 1st plaintiff was suffering from certain physical ailments, he had been staying at Karaikal and taking treatment. It is the mother of the plaintiffs and the other brothers of the 1st plaintiff who are staying in the suit property and they are not worldly wise.
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SA.No.199 of 2007
should be a 5 feet set back between two house so as to help the owner to color wash the wall or repair the wall. The rain water also flows through this space and by reason of the defendants put his construction flush onto the western wall all these facilities that were available to the plaintiffs have now been denied to them. The plaintiffs had therefore issued a legal notice to the 2nd defendant who was the person carrying on the construction work. However, the defendants did not stop the construction and the 2nd defendant had issued a reply stating that the construction was being conducted as per the extant rules and regulations. The plaintiffs had sent a rejoinder informing the counsel for the 2nd defendant that they were not keen of approaching the Court but was desirous of bringing about an amicable settlement. However, the rejoinder did not evoke any reply, therefore the plaintiffs have come forward with the suit in question.
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SA.No.199 of 2007
questioned the Will dated 12.05.1975 and it is the case of the defendants that since the 1st defendant was a retired Government Servant all necessary precautions to measure the property belonging to the 1st defendant was first undertaken, the area demarcated and peg marked before the construction activities had taken place. The plaintiffs, according to the defendants were not living in the house at T.R.Pattinam and the same was lying vacant. The 2nd defendant had approached the plaintiffs with a request to lease out the vacant house to him during the period of the construction. The 2nd defendant was residing in the plaintiffs' house as a tenant during the construction work.
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SA.No.199 of 2007
constructed on the eastern end. In fact, the rain water which was collected from the roof of the plaintiff’s house also drains into this drainage. Therefore, the allegation that there is no space to drain out the rain water cannot be believed.
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SA.No.199 of 2007
squarely within the jurisdiction of the authorities constituted under the Act, wherein the jurisdiction of the Civil Court was expressly barred. The defendants also prayed to have the contents of the original written statement read as part and parcel of the additional written statement.
1. Whether the plaintiffs are the owners of house and
its appurtenances bearing No.12 (Old No.17)
Abiramiamman South Street of T.R.Pattinam which is more
fully described in the schedule of property appended to this Plaint?
2. Whether the first defendant is the owner of western
property of the plaintiffs and second defendant his close relative of first defendant was assisting the first defendant in
the construction work on the western side of the plaintiff’s
property?
3. Whether the construction made by the defendants in
their property is very close to the western wall of plaintiff
house and that too was made without provide 5 feet width
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SA.No.199 of 2007
space between the houses for effecting white washing and repairing of western wall of the plaintiffs?
4.Whether the eves water which was running south to
north was not able to low freely and there by the eves water of the defendant house drenched the western wall of the plaintiff house and caused hazard to the inmates of the plaintiff’s house?
5.Whether the plaintiffs are stopped by conduct to file and maintain the suit?
6.Whether the defendant have constructed the eastern wall on their own land and the construction was in accordance with law, usage and custom of the locality?
7. Whether the prayer for mandatory injunction is not maintainable without the prayer for the declaration of plaintiff’s right?
8.Whether the value of suit property is Rs.3 lakhs and
this Court has no pecuniary jurisdiction to entertain and try the suit?
9. To what other reliefs the parties are entitled to?
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Substantial Questions of law by this Court on 20.02.2007.
a) Whether it is compulsory to leave 5 feet side set
back while constructing house under Pondicherry Buildings Bye-law and Zoning Regulation of 1972?
b) Whether the Civil Court will have jurisdiction to
decide the issue in regard to the grant of permission for constructing the house under the Pondicherry Town and Country Planning Act?
c) Whether mandatory injunction is maintainable
without praying for declaration of title to the property?
15.Mr.M.Krishnappan, learned Senior counsel for M/s.R.Swarnalatha
appearing on behalf of the appellants/defendants would submit that the plaintiffs have based their entire case on Ex.A.2, Will dated 12.05.1975. However, a perusal of this Will would show that there is no description about the property which is the subject matter of the bequest and that being the case, the lower Appellate Court has erred in reversing the judgment and
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SA.No.199 of 2007
decree of the Trial Court holding that the plaintiffs have not proved their right to the suit schedule property. He would submit that the plaintiffs have pressed into service Ex.A.1, a Will dated 23.07.1910 which according to them was the parent document. However, a reading of Ex.A.2 shows no reference to Ex.A.1 and therefore, the contention of the plaintiffs that Ex.A.1 is the anterior document to Ex.A.2 is absolutely false. De hors Ex.A.2, the plaintiffs have not filed any document to show their possession and enjoyment of the suit schedule property. In fact, Ex.A.4 which is a patta filed on the side of the plaintiffs does not even contain the Door Number or the street name and this being the case, the judgement and decree of the lower Appellate Court is totally erroneous.
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with the regulation. The approval under Ex.B.13 dated 15.12.1998 was issued by the Planning Authority. In fact when Ex.B.12 was under consideration, the plaintiffs have submitted their objection which after due inquiry was rejected. The plaintiffs have not chosen to question the same. Therefore, in the light of the overwhelming evidence, the lower Appellate Court has erred in reversing the judgment and decree of the Trial Court. The learned Senior counsel further argued that despite serious objections regarding title of the plaintiffs to the suit schedule property, the plaintiffs had not deemed it fit to amend the prayer to include the relief of declaration which would squarely fall within the judgement of the Hon’ble Supreme Court reported in (2008) 4 SCC 594 - Anathula Sudhakar Vs. P.Buchi
Reddy and Others. )
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SA.No.199 of 2007
that there has a possibility of rain water stagnating between the walls which could be harmful to the building. He would submit that the lower Appellate Court has rightly considered the admission of D.W.3, that if there is no space between the walls it would be impossible for the plaintiffs to maintain their wall. He would also rely upon the admission of D.W.2 that since T.R.Pattinam is a rural area, a 5 feet set back has to be left open between the construction of two houses. Therefore, he would urge this Court to confirm the judgment and decree of the lower Appellate Court.
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Survey Number, measurements etc. Therefore, the plaintiffs have not been able to prove his contention that under Ex.A.2, Will there is a mention that the eastern and western wall of the house belongs to them absolutely. The document also does not talk about any passage between the wall and the neighbour’s property.
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thereafter the approval had been granted only goes to show that there is no mandatory requirements to leave 5 feet set back while constructing the house under the Pondicherry Buildings Bye-law and Zoning Regulation of 1972. Therefore, the Substantial Question of law No.1 is answered against the plaintiffs. The Substantial question of law No.2 has not been urged by either side and therefore this Court is not called upon to give a finding with reference to the same.
SA.No.199 of 2007
01.02.2023
Index : Yes/No Internet : Yes/No Neutral Citation :Yes/No shr
To
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SA.No.199 of 2007
P.T. ASHA, J,
shr
SA.No.199 of 2007
01.02.2023
3 issues framed by the court
Whether it is compulsory to leave 5 feet side setback while constructing a house under Pondicherry Buildings Bye-law?
Whether mandatory injunction is maintainable without praying for declaration of title to the property?
Whether the construction did not provide 5 feet width space between the houses for white washing and repairing?
Colour shows how this judgement treated each authority
Anathula Sudhakar Vs. P.Buchi Reddy and OthersExplained¶127
(2008) 4 SCC 594 - Anathula Sudhakar Vs. P.Buchi Reddy and Others. · Who else cites this
1 provisions across 1 enactments
1.N.Selvaraj 2.T.Palaniyandi
1.S.Amrithalingam 2.Murugavel 3.S.Subramanian 4.S.Aathiyappan 5.S.Shanmugavadivelu 6.Tmt.Parvathy 7.Vembarasi 8.Shiyama 9.Minor.Balakumar
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
