IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.12.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.503/2001 Cross Objection No.47/2003 CMP.No.605/2010 T.Matheswari Appellant Vs T.G.Tulasi Respondent Prayer:- This Second Appeal is filed against the Judgement and Decree dated 25.2.2000 passed in AS.No.102/1999 by the learned V Additional Judge, City Civil Court, Chennai, confirming the Judgement and Decree dated18.8.1998 passed in OS.No.3350/1995 by the learned XIII Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.T.Murugamanickam for Mr.M.Kamalanathan For Respondent : Mr.K.R.A.Muthukrishnan JUDGEMENT
The Appellant herein/Plaintiff has filed the suit in OS.No.3350/ 1995 for a Judgement and Decree against the Respondent herein/defendant for removal of encroachment of 40 feet North to South 1 feet East to West on the Western side of the house of the Plaintiff and ending with North of her property and for costs. The Respondent herein/defendant has filed the above Cross Objection against the finding made in the Judgement and Decree dated 25.2.2000 passed in AS.No.102/1999 by the lower Appellate Court and filed the above CMP for reception of additional documents.
2. The case of the Plaintiff as set out in the plaint is as follows:-
The suit property originally belonged to one Pushpavathi Ammal, the mother of the Defendant. She sold the same to one Thulasi Bai under a registered sale deed dated 29.11.1984. The Plaintiff had purchased the suit property from Thulasi Bai under a registered sale deed dated 27.9.1973. Pushpavathi Ammal had conveyed 1710 sq.ft. to Thulasi Bai. The Plaintiff had obtained plan sanction for new constructions. The original owner Pushpavathi Ammal also owned the house bearing Door No.18 which is situated on the West of the house of the Plaintiff. After the demise of Pushpavathi Ammal, the Defendant has occupied the said house. Pushpavathi Ammal had a tiled house measuring 35 ft. from the road and she had left 2 feet passage towards north. During her life, time she did not have proper sanitary facilities. Therefore, the Plaintiff in the year 1980 put up a parapet wall measuring 40 feet. In the month of February 1993, the Defendant without obtaining any permission from appropriate authorities had completed construction in Door No.18. The Defendant had encroached the suit property illegally. The Plaintiff had questioned the illegal encroachment made by the Defendant. The Plaintiff had also convened several panchayats, but there was no fruitful result. The Defendant had encroached 40 feet from South to North and one feet from East to West. Hence, the suit has been filed.
3. In the Written Statement filed by the Defendant, it is averred as follows:-
The suit property was not described properly. The original owner Pushpavathy Ammal had purchased the suit property and its adjoining property from one Chockalinga Mudaliar. Subsequently, she constructed another building in the same site. In order to discharge a mortgage loan, the mother of the Defendant had sold one building to S.Thulasi Bai under a registered sale deed dated 29.11.64. As per the recitals of the said sale deed, Pushpavathi Ammal is entitled to use the lavatory and also the well in the premises. The mother of the Defendant should construct a compound wall at her cost within two years from 29.11.1964. She also executed a settlement deed in favour of the Defendant. The Defendant had applied for the plan sanction for making addition and alteration in the existing building. The Defendant had constructed her buildings in the year 1988. The Plaintiff has been giving unnecessary trouble to the Defendant. With a view to harass the Defendant, the Plaintiff has come forward with the present suit. The Plaintiff is not entitled to get any relief against the Defendant and hence, the suit is liable to be dismissed.
4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A6 were marked and the Plaintiff examined herself as PW.1. On behalf of the Defendant, Ex.B1 to B4 were marked and the Defendant was examined as DW.1. The report and the plan of the Advocate Commissioner were marked as Ex.C1 and C2.
5. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit and the appeal filed as against the same by the Plaintiff was also dismissed, confirming the Judgement and Decree of the Trial Court. As against the same, this Second Appeal has been filed.
6. This Second Appeal has been entertained on the following substantial questions of law:-
(a) Whether the courts below are right in relying upon Ex.B3 and B4 the sanctioned plans of the year 1983 and 1988 respectively to prove the construction of the Respondent’s buildings?
(b) Whether the courts below committed an error though the court fee paid under Section 27(a) the Relief of Declaration is a must?
7. I have given anxious and careful consideration to the rival submissions made by the learned counsel on either side and also pursed the materials on record and the impugned judgements of the courts below.
8. The case of the Appellant/Plaintiff is that the original owner, namely, Pushapathavathi Ammal conveyed 1710 sq.ft. to Thulasai Bai under a registered sale deed dated 29.11.1964 under Ex.A6 and she in turn sold the same to the Plaintiff under Ex.A5. According to the Plaintiff, the mother of the Defendant had 3600 sq.ft. and after she conveyed 1710 sq.ft., she had a remaining extent of 1890 sq.ft., but whereas, the mother of the Defendant had settled 1935 sq.ft. to the Defendant under Ex.B1 settlement deed dated 2.1.1975. As per the settlement deed Ex.B1, an extent measuring 21 = x 90″ totaling 1935 sq.ft. had been conveyed to the Defendant. The Defendant has filed Ex.B2 patta, which shows that the extent of property in possession of the Defendant is 1935 sq.ft. It is pertinent to point that no patta had been filed by the Plaintiff.
9. It is the case of the Appellant/ Plaintiff that the Defendant had encroached the suit property to an extent of 40 feet width North South and 1 foot width on the East West. The first appellate court has based its findings that the Defendant had encroached to an extent of 40 sq.ft on the basis of the report Ex.C1 and the plan Ex.C2 of the Advocate Commissioner. According to the said report, which is based on the surveyor’s report, the encroachment by the Defendant is to an extent of 0.0045 sq.ft. Admittedly Ex.C2 the surveyor’s plan is not signed by the Surveyor. The said report and the plan has been objected to by the Defendant. Despite the said objection, the Advocate Commissioner has not been examined before the Trial Court. The Trial Court has adverted to the non-examination of the Advocate Commissioner in the light of the objection raised by the Defendant and found that no reliance could be placed on the report and the plan submitted by the Advocate Commissioner to come to the conclusion that there is an encroachment by the Defendant in the property of the Plaintiff.
10. No doubt, in all cases it is not necessary to examine the Advocate Commissioner, but in the instant case, in order to testify the conclusion arrived at by the Advocate Commissioner based on the surveyor’s report, the examination of the Advocate Commissioner before the Trial Court is necessary. In this case, the Trial Court has felt that in the light of the unsigned plan submitted by the Surveyor, the examination of the Advocate Commissioner was necessary and held that his report cannot be accepted and acted upon. On a perusal of the report Ex.C1 and the plan, C2, it is patently clear that the report was defective. It could have been cured by the courts below by either directing the Advocate Commissioner to file the report properly or by directing the Advocate Commissioner to verify the measurements already taken by the Surveyor. The parties have a right to cross examine the Advocate Commissioner and to adduce evidence to support his report or to show that his report is erroneous or defective. The first appellate court without deciding about the objections made by the Respondent/Defendant regarding the correctness of the report has based reliance on the said report to come to the conclusion that there is an encroachment by the Defendant which is unsustainable.
11. It is relevant to point that the patta issued in favour of the Respondent in respect of the property is to the extent of 1935 sq.ft. which supports the claim of ownership made by the Defendant under Ex.B1 settlement deed. In such circumstances, unless the issue with regard to the ownership of the respective parties is decided by a declaratory relief, in the absence of any other evidence, the court cannot come to a definite conclusion that the Respondent has encroached upon the suit property. Therefore, I am of the considered view that the findings of the first appellate court is unsustainable and the cross objection is liable to be allowed.
12. The learned counsel for the Appellant submitted that even though no declaratory relief is claimed, but since the suit is valued under Section 25(a) of the Tamil Nadu Court Fees and Suits Valuation Act and by implication the relief of mandatory injunction takes the place of declaration and the court cannot dismiss the suit on the ground that no relief of declaration is sought for. The learned counsel relied on the decision of the Delhi High Court reported in AIR-1978-Delhi-114 [Mahant Purushottam Dass and others Vs. Har Narain and others].
13. In the decision cited supra, it is observed that the declaration has to be prayed where an obstacle has to be removed before the Plaintiff can claim the relief of injunction simpliciter. The relief of declaration cannot be asked for as a matter of right and it is a discretionary relief which will be granted by the court only if the Plaintiff is able to satisfy that (a) he is entitled to any right, (b) the Defendant has denied such right, (c) the declaration sought for should be with respect of the legal right to property or character and (d) he should seek a further relief than mere declaration of title. The allegations in the plaint would normally govern the frame of suit. There has been a divergent opinion as to whether a suit for bare injunction should contain a prayer for declaration also. Though it is not possible to lay down any hard and fast rule on this aspect, it can be said that when there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the Plaintiff to pray for declaration which will have the effect of removing that obstacle. Merely because the Plaintiff has valued the suit under Section 25(a) of the Tamil Nadu Court Fees and Suits Valuation Act, it cannot be said that the court can decide the issue regarding the question of title.
14. It is the case of the Appellant that the Defendant has put up construction in or about 1993 thus encroaching upon the property of the Plaintiff, whereas the Defendant contended that the construction was completed as early as in 1988 and the plan has been sanctioned in the year 1988 and Ex.B3 and Ex.B4 had been filed.
15. Mr.T.Murugamanickam, the learned counsel for the Appellant contended that though the burden is on the Plaintiff to prove the date of encroachment by the Defendant, but however, when best evidence namely assessment order and tax paid by the Defendant after assessment has not been placed on record to show that the construction was completed even in the year 1988 or 1989, merely from Ex.B3 and Ex.B4 the plan sanction, it cannot be presumed that construction was put up in the year 1988. Ex.B3 and Ex.B4 are the plan, which is sanctioned on 25.3.1983. Even in the Written Statement, it is pleaded that sanction of plan was obtained on 25.3.1983 in PPA No.57/1983 and subsequently, the Defendant had applied for the construction of addition and alteration in the remaining portion of the building and construction of I Floor in the year 1987 and obtained planning sanction on 28.10.1987 in PPA.200/87. Ex.B3 and B4 evidence the same. Further, in the Written Statement, it is also specifically stated that the building was constructed as per plan and PWD planning and design circle issued the certificate dated 17.9.1988 to the effect that building has been completed as per plan and estimate.
16. By way of CMP.No.605/2010, the Respondent/Defendant sought permission of this court to receive the following documents as additional documents:-
1. Completion certificate as per plan and estimate issued by the Assistant Executive Engineer, Public Works Department, Chennai dated 17.9.1988 (Original).
2. Notice to the Petitioner/Respondent with regard to property tax assessment by the Corporation of Chennai dated 31.01.1989.
3. Property tax paid receipt No.11157 dated 27.7.1990 issued by the Corporation of Madras for the period from 2/88-89 to 1/90-91 in the name of the Petitioner/ Respondent.
17. The Respondent has averred that she availed housing loan from Canara Bank for construction of her house both ground floor as well as first floor in the year 1988 and she applied for planning permission and received the completion certificate from the official concerned on 17.9.1988. She has stated that the first document, namely, completion certificate issued by the Assistant Executive Engineer, Public Works Department, Chennai dated 17.9.1988 sought to be received as additional document was submitted to the Canara Bank as a loan document and the same was obtained from the Canara Bank after discharge of the said loan. As regards the property tax receipts, it was misplaced and the same was traced and produced now. The Document No.3 relates to the assessment periods 1988-99, 1989-90, 1990-91.
18. It is relevant to mention here that permission to adduce an additional evidence cannot be refused on the ground that the party has not adduced such evidence in the Trial Court. If the documents are found to be relevant to decide the real issue in controversy and when the court feels that interest of justice requires that the additional documents must be received, exercising power under Order 41 Rule 27 of CPC could be done. Of course, this rule does not confer a right on the party to produce additional evidence, but if this court requires any document so as to enable it to pronounce judgement, then it can permit additional evidence to be produced.
19. At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court reported in AIR-1951-SC-1 [Raja Kamala Ranjan Roy Vs. Baijnath Bajoria], wherein it is held thus:-
“11. The third objection of the Appellant is that the appeal court should not have allowed the Plaintiff to adduce further evidence. It will be recalled that the appeal court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The judgement of the appeal court that “required” the evidence “in order to clear up the matter” and “for the purpose of enabling it to come to a proper decision on this point”. The matter, therefore, is fully covered by Order 41 Rule 27 of the Code of Civil Procedure and no objection can be taken to the course adopted by the appeal court on that ground. We do not think there is any reason to interfere in the exercise of the court’s discretion.”
20. In yet another decision reported in AIR-1957-SC-912 [Manbodhan Lal Srivastava Vs. Manbodhan Lal Srivastava], it is held thus:-
“3. …. It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.”
21. In the present case, even though this court can pronounce judgement on the basis of the evidence on records, namely, Ex.B3 and B4 documents evidencing sanction of plan, but still in the interest of justice, the production of completion certificate dated 17.9.1988 is essential so as to decide the issue as to whether the construction was completed in the year 1988 and therefore, the additional document (1) could be received. The property tax receipt dated 27.9.1990 for the tax paid for the half years namely, 1988-89, 1989-90 and 1990-91 and the notice issued by the Corporation of Chennai calling upon him to pay the property tax also are relevant for the determination of the issue.
22. At this juncture, it is worthwhile to refer to the contention of the Appellant that the best evidence which was available with the Respondent was not produced. The Respondent has now sought to produce those documents. The reason shown by the Respondent that the document No.1 was with the Canara Bank is not disputed by the Appellant. There cannot be any reason to refuse permission for reception of the said documents, as the non-production of which at the initial stage before the courts below has been satisfactorily explained. I have looked into the documents and scrutinized them carefully and on such scrutiny, I am of the considered view that the additional documents are found to be relevant to decide the issue in controversy between the parties and the interest of justice requires that the documents can be received as additional documents. The additional documents 1 to 3 together with Ex.B3 and B4 clearly prove that the construction was put up and completed by the Defendant in the year 1988 itself.
23. Therefore, it is established by evidence that the construction was put up as early as in 1988. But, the suit has been filed only in the year 1995. The Plaintiff ought to have filed the suit within three years from 1988. At this juncture, the contention of the learned counsel for the Appellant that the suit is not barred by limitation, as it is a continuous wrong requires to be considered.
24. It is of the very essence of a continuing wrong that it must be an act which creates a continuing source of injury and thus renders the doer of the act responsible and liable for the continuance of the injury. If the wrongful act is complete, then there is no continuing wrong though damage resulting from the act may continue. A distinction exists between the injury caused by a wrongful act and what may be said to the effect of the injury. The suit for mandatory injunction for closing the doors, the ventilators and the windows opened by the Defendant in their house is a continuous wrong, as held in AIR-1980-Allahabad-115 [Raja Ram and others Vs. Bahadur and others] .
25. It is no doubt true that interference with water supply, obstruction to right of way, light and air are few instances of continuous wrong, as it involves repetition of acts of the same kind, for which the action is brought. In this nature of continuing wrong, the wrongful act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance. But, where the wrongful act is complete, there is no continuing wrong, though damages resulting form the act may continue. That is where the injury complained of is complete on a certain date, the cause of action to the person injured arises once for all at the time the injury is inflicted and the fact that the effects of the injury are felt by the injured person on subsequent occasions intentionally or even continuously does not make the injury a continuing wrong.
26. At this juncture, it is relevant to refer to the decision cited by the learned counsel for the Respondent reported in AIR-1994-Delhi-161 [Faqir Chand by LRs Vs. Lila Ram by LRs] wherein it was held that construction of the tin shed in the common passage amounted to complete ouster of the right of common use to that portion of the joint passage and hence the injury was complete even when the tin shed was constructed. It thus held that the limitation was three years for filing the suit for seeking the relief of mandatory injunction.
27. In the light of the discussions made above, I am of the considered view that the first appellate court has applied the law in a correct manner and rightly held that the suit is barred by limitation. The substantial questions of law are answered accordingly.
28. In the result, this Second Appeal is dismissed. CMP.No.605/2010 filed by the Respondent/defendant for reception of additional documents is allowed. The Cross Objection No.47/2003 filed by the Respondent/defendant is allowed. The Judgement and Decree of courts below are confirmed, except the finding of the first appellate court that the Respondent/defendant is an encroacher. The parties shall bear their own costs throughout.
1. The V Additional Judge, City Civil Court, Chennai
2. The XIII Assistant Judge, City Civil Court, Chennai.
3. The Record Keeper, VR Section, High Court, Madras
ARUNA JAGADEESAN, J.
Cross Objection No.47/2003