Plaintiffs sought injunction to protect a five-foot pathway; defendants encroached by constructing pending suit. The lower appellate court denied mandatory injunction as time-barred. The High Court held limitation cannot defeat relief where alteration occurred during litigation, restored the trial decree and directed removal of the encroachment.
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.
S.A.No.887 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.03.2024
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.887 of 2013
PRAYER : Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the Subordinate Court at Kallakurichi, dated 15.02.2012 in A.S.No.20 of 2011 reversing the judgment and decree of the II Additional District Munsif Court at Kallakurichi, dated 19.11.2010 in O.S.No.389 of 2005.
For Appellants : Mr.P.Valliappan, Senior Counsel for Mr.S.M.S.Sriram Narayanan
For Respondents : Ms.Mahamandra Rajalakshmi for Mr.J.Ramakrishnan
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J UD G M E N T
The present second appeal arises out of the judgment and decree of the Court of the Subordinate Judge, Kallakurichi, in A.S.No.20 of 2011 dated 15.02.2012 reversing the judgement and decree of the Court of the II Additional District Munsif at Kallakurichi in O.S.No.389 of 2005, dated 19.11.2010.
the suit has been presented for the relief of permanent injunction restraining the defendants from interfering with the pathway that existed in and over the suit property. Pending the suit, the defendants put up a construction and therefore, the plaintiffs amended their prayer for the relief of mandatory injunction to demolish the construction that has been put up pending litigation.
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Mari, Palani and Raman. The sons of Mari are plantiffs 1 to 3, namely, Velu, Palani and Poongavanam. The son of Palani namely one Kamaraj who is the fourth plaintiff. The first defendant is the son of one Muthu and the second defendant is the wife of Ponnusamy. Muthu had purchased the property under Ex.B1 from Kaliyan and Govindan. Kaliyan and Govindan are none else the sons of Raman.
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marked 'D'. 'D' is a passage which leads from Rajaveedhi through the holdings of Raman and Mari and leading to the portion of Palani. It is the case of the plaintiffs that the brothers had left out 17 links East - West commencing from Rajaveedhi till the end of their holdings.
Pg.74) (paragraph No.16) .
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1/ jhth re;ij thjpfs; ePz;lfhykhf gad;gLj;jp tUfpd;whh;fsh>
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1/ thjp nfhhpa braYWj;Jf;fl;lis ghpfhuk; fpilf;fj;jf;fjh>
2/ jhth tHf;fpw;F tHf;F K:yk; Vw;gltpy;iybad;gJ cz;ikah>
3/ thjpapd; brhj;ij gpujpthjpfs; Mf;fpukpg;g[ bra;Jtpl;lJ cz;ikah>
4/ thjp jhthtpy; nfhhpa epue;ju cWj;Jf;fl;lis ghpfhuk; fpilf;fjf;fjh>"
examined himself and local resident one Arumugam as PW2 and marked Exs.A1 to A3. On the side of the defendants, three of them examined themselves as DW1 to DW3 and marked Ex.B1 to B9. Pending the suit, an Advocate Commissioner was appointed in I.A.No.2117 of 2005 who
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visited the suit property on 06.01.2007. His report and plan were marked by consent as Exs.C1 and C2.
the suit, the learned trial Judge came to the conclusion that
(i) the plaintiffs have proved that there existed a pathway for six
feet from the Western side of the area marked 'A' to the Eastern side of the same plot which area has been marked as 'D' in the Commissioner's plan.
(ii) Since the defendants had put up the construction pending litigation, the learned trial Judge granted the relief of mandatory injunction directing removal of the portion of the house of the defendants.
(iii) Having come to this conclusion, the learned trial Judge dismissed the suit filed by the first defendant as plaintiff in O.S.No.422 of 2005.
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"The Second Appeal is admitted on the basis of the following substantial questions of law-
1. When it is axiomatic in law that an amendment of plaint will relate back to the date of the plaint, whether the Lower Appellate Court is correct in law in holding that the relief of mandatory injunction is time barred by construing the amendment application from the date of filing it?
2. When the respondents have put up illegal construction in respect of a common lane, which constitutes a continuous cause of action every minute is the finding of the Lower Appellate Court that the relief of mandatory injunction is time barred, sustainable in law?
3. When DWs1 and 2 have categorically admitted the right of the appellants and the fact that they have put up construction during the pendency of the suit, is the Lower Appellate Court correct in law ignoring the same, particularly when it is clear in law that admission of the opposite party is the best evidence?
Notice."
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and Ms.Mahamandra Rajalakshmi, learned counsel for Mr.J.Ramakrishnan.
the basis of the undisputed Advocate Commissioner's report, the entire area shown as 'D' suddenly is restricted from the entrance to the Rajaveedhi to their portion to two links and that too by way of construction, pending litigation. He would state that no objection had been filed to the Advocate Commissioner's report, and would point out from the evidence of PW1 that what had been purchased by Muthu from the sons of Raman was the old building that stood as it was for forty years. He would also point out that he had moved an amendment application by way of abundant caution and that this Court has power to order the removal of the building put up pending litigation, even in a suit
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for injunction. He would state that where the cause of action is based on the original plaint, amendment cannot be said to be barred. For this preposition, he would rely upon two judgments of this Court, namely, Palaniammal vs. Pechimuthu and others (1991-1-L.W.Pg.371) and S.Rosely vs. Lazar Nadar and others (1988-2-L.W.64). On the basis of these contentions, Mr.P.Valliappan, would state that the judgment of the Lower Appellate Court reversing the judgement of the trial Court is tainted with perversity as it had applied wrong law to the right facts and hence, requires interference at the hands of this Court.
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Counsel, she would submit that the Advocate Commissioner's report cannot be relied upon as the Commissioner has visited the site only in 2007 and therefore, the report about the property as it existed in the year 2005 is beyond the appreciation of the submission.
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jurisdictional Police Station and finally arriving before the District Munsif Court. It is not as if when the defendants encroached upon the lane, the plaintiffs had been sitting quietly twiddling their thumbs and watching their rights of being encroached at all. The encroachment itself commenced after the pulling down of the existing structure levelling it and putting up a new structure. By the time this happened, the parties were before this Court.
"If the entire plaint is read, it is clear that the plaintiffs have rushed to the court as soon as the defendant started construction. It is not as if the defendant encroached upon the property and squatted on the same for some time, and thereafter began to construct thereon. The encroachment itself was by commencement of the construction on the disputed property. Hence, there is no necessity for the plaintiff to
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seek a declaration of their title or recovery of possession. If the impugned construction is removed, the plaintiffs will be certainly in possession as the property is adjacent to their admitted property and it is really part of the same. The courts below have taken the correct view on a reading of the plaint and held that there is no necessity to pray for any declaration or recovery of possession. Hence this contention of learned counsel for the appellant fails."
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/ encroachment rather than crediting the defendants for cocking a snook at the Court. Therefore, the view of the learned Judge that as the plaintiffs have amended the plaint seeking for mandatory injunction beyond the period of limitation, the suit has to fail, is a wrong application of law to the correct facts of the case. The plea of limitation should be seen "before the parties approaches the Court". If taking advantage of the fact that no interim orders had been granted by the Court or because of the pendency of the matter before the Court, any party alters the ground situation, the question of limitation would not arise. As pointed out above, the Civil Court has the power to grant a relief by moulding the same.
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took advantage of the situation and altered the game. The alteration having taken place pending the litigation, the Court does have the power to rectify the situation. Had the construction been put up before the commencement of the litigation, then the view taken by the learned Appellate Judge is correct. However, on admitted facts, since the construction has come up pending the litigation, I am of the view that the reasoning of the learned Judge that the prayer sought for is barred by time requires interference, and accordingly, is interfered with.
“It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Welden v. Neale. But it is also well recognised that where
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the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan and L.J.Leach & Company Ltd. v. Jardine Skinner and Co. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes Cropper v. Smith and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil.
The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an
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immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas" : Dornan v. J.W. Ellis & Co. Ltd.. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new seat of ideas to the prejudice of any right acquired by any party by lapse of time.”
in S.Rosely vs. Lazar Nadar and others (1988-2-L.W pg.64).
S.A.No.887 of 2013
Muthu, the predecessor- in-title of the defendants would have been to bring forth the suit for partition and separate possession. It is too well settled that a stranger to a joint family is not entitled to take possession of the property. The very fact that the predecessor-in-title Muthu had taken possession of the properties shows that there had been a partition between the three brothers and being the eldest brother, the Eastern portion of the property had been allotted to him. Therefore, the first argument of Ms.Mahamandra Rajalakshmi fails.
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heirs of Mari and Palani are in the occupation of the very same survey number and its sub-division in area marked 'B' and 'C'. The plaintiffs are not supermen to fly from Rajaveedhi to their respective holdings without have an access to the same.
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uniform access from the rear end of the portion occupied by the plaintiffs till the end of the holdings of the family.
of the lane that was under occupation, I have to see the purchase that was made by Muthu from Kaliyan and Govindan, sons of Raman. This purchase is under Ex.D1. The document being of 1969 vintage written in the rural parts of this State that the extent has been given only in fhyo or length of a human feet. One fhyo is equivalent to 3/4 of a feet in the metric scale. What had been purchased by Ms.Mahamandra Rajalakshmi's client was 20 feet East-West and 32 human feet NorthSouth. This corresponds to 24 feet in breadth and 15 feet in length. When compared to the Advocate Commissioner's report under Ex.C2, it is clear that the plaintiffs have constructed a portion to the extent of 40 links which corresponds to 27 feet.
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down the old super structure and raise new one. They have failed in their duty to do so and had altered the position in the pending litigation. Consequently, the Court necessarily would have to interfere. The encroachment having been shown from the very documents of the defendants, the excess has to be removed by the defendants.
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and having encroached upon the lane which was enjoyed common by the
brothers, they will have to bear the cost of the litigation throughout.
12.03.2024
Index:Yes / No Speaking Order :Yes / No Neutral Citation:Yes / No
vji
To
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V.LAKSHMINARAYANAN, J.
vji
S.A.No.887 of 2013
12.03.2024
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3 issues framed by the court
Whether the relief of mandatory injunction was barred by limitation because the plaint amendment was filed beyond three years of construction put up during pendency.
Whether a court can direct removal of construction erected pending litigation in a suit for permanent injunction.
Whether the plaintiffs proved existence and extent of the pathway over portion 'D' based on the Advocate Commissioner's report.
Colour shows how this judgement treated each authority
Ponniammal @ Ponnamal vs. Kuppusamy Kounder and othersRelied on¶6
(2011 (4) CTC Pg.74)
Palaniammal vs. Pechimuthu and othersRelied on¶19
(1991-1-L.W.Pg.371)
S.Rosely vs. Lazar NadarRelied on¶23
S.Rosely vs. Lazar Nadar and others (1988-2-L.W.64)
A.K.Gupta and Sons Ltd. vs. Damodar Valley CorporationRelied on¶22
AIR 1967 SC 96 · Who else cites this
1 provisions across 1 enactments
Velu
Palani
Poongavanam
Kamaraj
Anjalai
Balachandar
V.Lakshminarayanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V.Lakshminarayanan
Parties & counsel
