BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :13/06/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.662 of 1997 N.S.Balasubramanian ... Appellant Plaintiff Vs Union of India, through its General Manager Southern Railway, Park Town Madras - 3. ... Respondent Defendant Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 31.10.1996 in A.S.No.56 of 1995 on the file of the Principal Sub Court, Madurai confirming the decree and judgement dated 07.09.1994 in O.S.No.1029 of 1991 on the file of the District Munsif Court, Madurai. !For Appellant ... Mr.V.S.Balasubramanian ^For Respondents ... Mr.S. Manoharan, standing counsel for Railways :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
31.10.1996 in A.S.No.56 of 1995 on the file of the Principal Sub Court, Madurai
confirming the decree and judgement dated 07.09.1994 in O.S.No.1029 of 1991 on
the file of the District Munsif Court, Madurai.
2. A re’sume’ of facts absolutely necessary for the disposal of the Second
Appeal would run thus:
3. The gist and kernel of the case of the plaintiff as stood exposited
from the plaint is to the effect that the plaintiff’s property is situated to
the South of the defendant’s property. The plaintiff raised superstructure
within his land without in any way interfering with the compound wall of the
defendant. It is situated to the North of the plaintiff’s land. Baselessly, the
defendant’s officials entered into the plaintiff’s property and inspected the
same and passed remarks as though the construction raised by the plaintiff
should be demolished. Thereupon, the plaintiff was constrained to file the suit
for permanent injunction as against the defendant.
4. Per contra, denying and disputing, challenging and impugning the
averments/allegations in the plaint, the defendant filed the written statement
inter alia to the effect that the plaintiff while raising construction rested
part of his construction on the compound wall of the defendant and that
plaintiff had no right to raise construction to an extent of 30 meters from the
compound wall of the defendant as per the Government of Tamil Nadu Rural
Development and local Administration Department’s G.O.Ms.letter No.1544 dated
31.07.1973 and accordingly, the defendant prayed for dismissal of the suit.
5. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to
A.15 were marked on his side. The defendant examined himself as D.W.1 and
Exs.B.1 to B.6 were marked on the side of the defendant and Exs.C1 to C3 were
also marked as Court documents.
6. Ultimately, the trial Court dismissed the suit.
7. Being aggrieved by and dissatisfied with the judgment and decree of
the trial Court, the plaintiff prepared an appeal in A.S.No.56 of 1995 which
Court confirmed the Judgment and Decree of the trial Court in dismissing the
Original Suit. Grieved the Judgment and Decree of both the Courts below, the
Second Appeal has been filed on the following main grounds among others.
Despite the Commissioner gave a categorical findings that there was no
encroachment made by the plaintiff over the defendant’s property, both the
Courts below, fell into error in wrongly interpreting the Commissioner’s Report
and arrived at the wrong conclusion. Both the Courts below also misconstrued the
relevant rules governing the construction on the properties near the Railway
track. The 30 meters formulae as envisaged in the said building rules are
applicable only to the property situated adjacent to the Railway track and not
to any other railway department’s property.
8. Based on the above pleadings, my learned predecessor framed the
following substantial questions of law:-
(i) Whether in law have not the courts below erred in misreading the
Advocate Commissioner’s report Ex.C1 which has resulted in perverse findings?
(ii) Whether in law are not the judgments decrees of the Courts below
vitiated in that the definition of railway would not include railway quarters
vide AIR 1914 Mad.196?
(iii) Have not the Courts below overlooked that the proceedings dated
22.8.1990 is not applicable to the buildings governed by Madurai City Municipal
corporation Act?
Substantial Question of law 1:
9. Heard both sides in entirety.
10. The learned counsel for the appellant would submit that the
Commissioner’s report was not properly considered by both the Courts below and
they arrived at the wrong conclusion. The Commissioner’s report would clearly
demonstrate that the compound wall of the defendant is standing independently,
and separately from of the wall of the plaintiff and there is actually a gap
between the two walls. Only at the top portion of the compound wall of the
Railway, there appears link between the walls of both parties. But the link is
not going down to the ground level. But, there is a gap from the ground level
till the top between the two walls. The plastering was made by the plaintiff, in
such a manner, linking the compound wall of the defendant with the wall of the
plaintiff erroneously, and it gave the impression, as though the wall of the is
resting of the compound wall of the Railway department.
11. On the contrary, the learned counsel for the Defendant would submit
that this is a case, where the plaintiff’s construction is made to rest on the
compound wall of the Defendant and in such a case both the Courts below properly
appreciated the facts.
12. At this juncture, it is just and necessary to scrutinise Ex.C.1 to
C.3, the Commissioner’s Report and Sketches respectively. The perusal of the
Commissioner’s report would leave no doubt in the mind of the Court that the
Commissioner was of the considered opinion that both the walls are separate from
each other and there is a gap also between the two and only at the level of the
top of the compound wall of the defendant, the wall of the plaintiff is linked
by plastering mortar. In this context, I would like to extract here under the
relevant portion of the Commissioner’s report.
“Para 10. In the First point the wall of the respondent/plaintiff and the
compound wall of the petitioner/defendant are as shown in the diagram I. Between
the said wall and the compound wall there is small cleavage. When I inserted my
fingers in the said cleave and I was able to feel the presence of the cornice in
the southern side of the compound wall. The approximate thickness of the
plastering of the respondent wall over the compound wall is about 1/2 inch.
Para 11. In the stage No.II, I found a Vaigai R.C.Block in the compound wall of
the defendant was removed already. While peeping through said gap I found
presence of the bricks of the wall of the respondent/plaintiff. I have shown the
lie of them in my diagram No.II. I saw the bricks in the wall of the respondent
while taking the measurement of the compound wall in the said point. I found the
north-south measurement of the compound wall is 12″ including cornices on the
both side of the compound wall. I removed some portion of the mortar in the said
hole and I able to see that the wall of the plaintiff has no connection with the
compound wall of the defendant and to verify the same I inserted the pencil into
the said hole and in presence of both counsels and about 1-1/2″ and there was
about 1-1/2″ gap between the defendant compound wall and the plaintiff’s wall.
Para 12. In the third point I took the measurement of the compound wall in
between two supporting pillars on the east of point ‘A’ which is indicated in my
third diagram. The said wall is in the adjoining property on the east. I took
the north south measurement of the said compound wall which was 9″ in the said
place. This leads to the conclusion that the measurement of the cornices
protruding in the southern side and the northern side of the compound wall is 3″
that is 1-1/2″ in each side that is 12″ in total.
Para 15. The R.C.Pillars of the plaintiff’s wall have been put up independently
without touching the compound wall, but touching the southern edge of the
cornice. Probably at Point shown in diagram No.I. The plastering of the
plaintiff wall might have given the impression as though the same was
constructed on the defendant compound wall. Further the respondent counsel
pointed out the cement mortar used for plastering of the plaintiff’s wall have
spilled over the compound wall of the defendant. And for the purpose of the
finishing touch very negligible and small gap between the said wall and the
compound wall was plastered to give the appearance of slope to avoid running of
rain water in between both walls.” (emphasis supplied).
13. It is pertinent to point out that no steps have been taken by the
defendant to assail the Commissioner’s Report. Before the trial Court by
adducing any plausible evidence. As such the Commissioner’s report is a reliable
piece of the evidence and he demonstrated that no part of the wall of the
plaintiff is resting on the compound wall of the defendant. Exs.P.9 to P.14, the
photos would also evince and evidence the location of both the walls and the
plastering mortar linking both the walls at the level of the top of the compound
wall.
14. The sketch prepared by the learned Advocate Commissioner would
demonstrate that the Defendant is compound wall at the top is having cone shape
and on either side of the compound wall of the Defendant, there is cornice
projection, each to the extent of 1-1/2 inch. It is evident that and so as to
that the top portion of the compound wall is projecting on the defendant’s land
to an extent of 1-1/2 inch. The Commissioner also highlighted that the cone
shape on the one side sloping from the centre of the compound wall towards north
measuring 8-1/2 inch. But on the southern side slope measures itself 8 inches as
the plastering made by the plaintiff occupies the remaining slopy portion of the
said compound wall. On the top, he has also measured from the mid point of the
compound wall to the plaintiff’s wall and it measured 5-1/2 inch, where as from
the mid point to edge of the cornice on the northern side, it was 6 inch and
even, as per that only 1/2 inch area is occupied by the plastering of the
plaintiff’s wall. As already highlighted above, there is one other point, the
southern side cornice of the compound was to an extent of 1-1/2 inch is
projecting on the defendant’s land presumably. But ignoring even that fact
considering as such, only 1/2 inch plastering is protruding on the defendant’s
wall. In my opinion, this is only a negligible one. Section 95 Indian Penal
Code, embodies the maxim “De minimis non curat lex (Low does not take care of
trifles). Whatever might be, for that negligible extent of the plaintiff’s
plastering of his own wall protruding over the area of the defendant at the most
some compensation could be awarded and that would meet the ends of justice.
15. The question arises as to whether the Railway department is expected
to proceed under the Public Premises (Eviction of unauthorised occupants) Act
1971, so as to remove that negligible portion of the plastering effected by the
plaintiff. I am of the considered view, that such action is unwarranted and
awarding of compensation would meet the ends of justice. The perusal of the
judgment of both the Courts below would show that they have not at all
considered all these aspects while deciding the matter.
16. The trial Court simply jump to the conclusion that part of the wall of
the plaintiff is built over the compound wall of the defendant, which findings
of fact is totally apathetical to the Commissioner’s report which has not been
set aside or rejected by the trial Court. In such view of the matter, there is
considerable force in the argument of the learned counsel for the appellant that
both the Courts below failed, to understand the Commissioner’s report in
stricto-senso by misreading the Commissioner’s report including the sketch, both
the courts below had fallen into error, which warrants this Court to interfere
in the Second appeal as there is expacie and prima-facie error in interpreting
and misreading the Commissioner report and the Sketches. Awarding compensation,
is by way of striking a balance between the two. The compensation awarded should
be in recognition of the right of a Defendant which is a public body. In my
opinion awarding a sum of Rs.20,000/- (Twenty thousand) would meet the ends of
justice and the appellant shall deposit it in the trial Court or directly tender
it to the defendant, if the defendant chooses to receive it as a case may be
with in two months from this date. Accordingly, the substantial question of law
No.1 is answered.
Substantial questions of law 2 and 3 :-
17. While hearing the arguments, the substantiate questions of law nos. 2
and 3 relegated themselves to lesser importance as a mere reading of the
relevent portion of the Tamil Nadu Town and Country Planning Act 1971 Act 35 of
1972. It would clearly show that the term Railway does not include the immovable
properties of the Railway Department, where there is no Railway track running.
The objection of preventing constructions within an extent of 30 metres is to
see that building are not constructed for nothing but to get collapsed due to
the vibration of the movements of the trains. Here admittedly and indubitably,
no railway line is running within 30 meters from the building of the plaintiff.
Accordingly, the substantial questions of law Nos.2 and 3 are answered.
18. In the result, the second appeal is disposed of setting aside the
judgment of both the Courts below and decreeing the Original Suit No.1029 of
1991 to the effect that there shall be permanent injunction as against the
defendant, his agents, servants and men by way of restraining them not to
interfere with any part of the constructions of the plaintiff as found set out
in Exs.C.1 to C.3, the Commissioner’s report and Sketches respectively.
19. The plaintiff shall pay a compensation of Rs.20,000/- (Twenty
thousand) to the defendant within two months from this date.
20. However, in the facts and circumstances of the case, the parties are
ordered to bear their respective costs.
To
1. The Principal Sub Judge,
Madurai.
2. The District Munsif,
Madurai Taluk.