{"id":25308,"date":"2007-06-13T00:00:00","date_gmt":"2007-06-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-s-balasubramanian-vs-union-of-india-on-13-june-2007"},"modified":"2016-11-03T20:23:23","modified_gmt":"2016-11-03T14:53:23","slug":"n-s-balasubramanian-vs-union-of-india-on-13-june-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-s-balasubramanian-vs-union-of-india-on-13-june-2007","title":{"rendered":"N.S.Balasubramanian vs Union Of India on 13 June, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
N.S.Balasubramanian vs Union Of India on 13 June, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED :13\/06\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nS.A.No.662 of 1997\n\nN.S.Balasubramanian\t... \tAppellant\n\t\t\t\tPlaintiff\n\nVs\n\nUnion of India,\nthrough its General Manager\nSouthern Railway, Park Town\nMadras - 3.\t\t...\tRespondent\n\t\t\t\tDefendant\n\n\nPrayer\n\n\nAppeal filed under Section 100 of Civil Procedure Code, against the\njudgment and decree dated 31.10.1996 in A.S.No.56 of 1995 on the file of the\nPrincipal Sub Court, Madurai confirming the decree and judgement dated\n07.09.1994 in O.S.No.1029 of 1991 on the file of the District Munsif Court,\nMadurai.\n\n!For Appellant    ... \tMr.V.S.Balasubramanian\n\n^For Respondents  ... \tMr.S. Manoharan, standing \t\t\t\t\n\t\t\tcounsel for Railways\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is focussed as against the judgment and decree dated
\n31.10.1996 in A.S.No.56 of 1995 on the file of the Principal Sub Court, Madurai
\nconfirming the decree and judgement dated 07.09.1994 in O.S.No.1029 of 1991 on
\nthe file of the District Munsif Court, Madurai.\n<\/p>\n
\t2. A re’sume’ of facts absolutely necessary for the disposal of the Second
\nAppeal would run thus:\n<\/p>\n
\t3. The gist and kernel of the case of the plaintiff as stood exposited
\nfrom the plaint is to the effect that the plaintiff’s property is situated to
\nthe South of the defendant’s property. The plaintiff raised superstructure
\nwithin his land without in any way interfering with the compound wall of the
\ndefendant. It is situated to the North of the plaintiff’s land. Baselessly, the
\ndefendant’s officials entered into the plaintiff’s property and inspected the
\nsame and passed remarks as though the construction raised by the plaintiff
\nshould be demolished. Thereupon, the plaintiff was constrained to file the suit
\nfor permanent injunction as against the defendant.\n<\/p>\n
\t4. Per contra, denying and disputing, challenging and impugning the
\naverments\/allegations in the plaint, the defendant filed the written statement
\ninter alia to the effect that the plaintiff while raising construction rested
\npart of his construction on the compound wall of the defendant and that
\nplaintiff had no right to raise construction to an extent of 30 meters from the
\ncompound wall of the defendant as per the Government of Tamil Nadu Rural
\nDevelopment and local Administration Department’s G.O.Ms.letter No.1544 dated
\n31.07.1973 and accordingly, the defendant prayed for dismissal of the suit.\n<\/p>\n
\t5. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to
\nA.15 were marked on his side.  The defendant examined himself as D.W.1 and
\nExs.B.1 to B.6 were marked on the side of the defendant and Exs.C1 to C3 were
\nalso marked as Court documents.\n<\/p>\n
\t6. Ultimately, the trial Court dismissed the suit.\n<\/p>\n
\t7. Being aggrieved by and dissatisfied with the  judgment and decree of
\nthe trial Court, the plaintiff prepared an appeal in A.S.No.56 of 1995 which
\nCourt confirmed the Judgment and Decree of the trial Court in dismissing the
\nOriginal Suit. Grieved the Judgment and Decree of both the Courts below, the
\nSecond Appeal has been filed on the following main grounds among others.\n<\/p>\n
\t Despite the Commissioner gave a categorical findings that there was no
\nencroachment made by the plaintiff over the defendant’s property, both the
\nCourts below, fell into error in wrongly interpreting the Commissioner’s Report
\nand arrived at the wrong conclusion. Both the Courts below also misconstrued the
\nrelevant rules governing the construction on the properties near the Railway
\ntrack. The 30 meters formulae  as envisaged in the said building rules are
\napplicable only to the property situated adjacent to the Railway track and not
\nto any other railway department’s property.\n<\/p>\n
\t8. Based on the above pleadings, my learned predecessor framed the
\nfollowing substantial questions of law:-\n<\/p>\n
\t(i) Whether in law have not the courts below erred in misreading the
\nAdvocate Commissioner’s report Ex.C1 which has resulted in perverse findings?\n<\/p>\n
\t(ii) Whether in law are not the judgments decrees of the Courts below
\nvitiated in that the definition of railway would not include railway quarters
\nvide AIR 1914 Mad.196?\n<\/p>\n
\t(iii) Have not the Courts below overlooked that the proceedings dated
\n22.8.1990 is not applicable to the buildings governed by Madurai City Municipal
\ncorporation Act?\n<\/p>\n
Substantial Question of law 1:\n<\/p>\n
\t9. Heard both sides in entirety.\n<\/p>\n
\t10. The learned counsel for the appellant would submit that the
\nCommissioner’s report was not properly considered by both the Courts below and
\nthey arrived at the wrong conclusion. The Commissioner’s report would clearly
\ndemonstrate that the compound wall of the defendant is standing independently,
\nand separately from of the wall of the plaintiff and there is actually a gap
\nbetween the two walls. Only at the top portion of the compound wall of the
\nRailway, there appears link between the walls of both parties. But the link is
\nnot going down to the ground level. But, there is a gap from the ground level
\ntill the top between the two walls. The plastering was made by the plaintiff, in
\nsuch a manner, linking the compound wall of the defendant with the wall of the
\nplaintiff erroneously, and it gave the impression, as though the wall of the is
\nresting of the compound wall of the Railway department.\n<\/p>\n
\t11. On the contrary, the learned counsel for the Defendant would submit
\nthat this is a case, where the  plaintiff’s construction is made to rest on the
\ncompound wall of the Defendant and in such a case both the Courts below properly
\nappreciated the facts.\n<\/p>\n
\t12. At this juncture, it is just and necessary to scrutinise Ex.C.1 to
\nC.3, the Commissioner’s Report and Sketches respectively. The perusal of the
\nCommissioner’s report would leave no doubt in the mind of the Court that the
\nCommissioner was of the considered opinion that both the walls are separate from
\neach other and there is a gap also between the two and only at the level of the
\ntop of the compound wall of the defendant, the wall of the plaintiff is linked
\nby plastering mortar. In this context, I would like to extract here under the
\nrelevant portion of the Commissioner’s report.\n<\/p>\n
“Para 10. In the First point the wall of the respondent\/plaintiff and the
\ncompound wall of the petitioner\/defendant are as shown in the diagram I. Between
\nthe said wall and the compound wall there is small cleavage. When I inserted my
\nfingers in the said cleave and I was able to feel the presence of the cornice in
\nthe southern side of the compound wall. The approximate thickness of the
\nplastering of the respondent wall over the compound wall is about 1\/2 inch.\n<\/p>\n
Para 11. In the stage No.II, I found a Vaigai R.C.Block in the compound wall of
\nthe defendant was removed already. While peeping through said gap I found
\npresence of the bricks of the wall of the respondent\/plaintiff. I have shown the
\nlie of them in my diagram No.II. I saw the bricks in the wall of the respondent
\nwhile taking the measurement of the compound wall in the said point. I found the
\nnorth-south measurement of the compound wall is 12″ including cornices on the
\nboth side of the compound wall. I removed some portion of the mortar in the said
\nhole and I able to see that the wall of the plaintiff has no connection with the
\ncompound wall of the defendant and to verify the same I inserted the pencil into
\nthe said hole and in presence of both counsels and about 1-1\/2″ and there was
\nabout 1-1\/2″ gap between the defendant compound wall and the plaintiff’s wall.\n<\/p>\n
Para 12. In the third point I took the measurement of the compound wall in
\nbetween two supporting pillars on the east of point ‘A’ which is indicated in my
\nthird diagram. The said wall is in the adjoining property on the east. I took
\nthe north south measurement of the said compound wall which was 9″ in the said
\nplace. This leads to the conclusion that the measurement of the cornices
\nprotruding in the southern side and the northern side of the compound wall is 3″
\nthat is 1-1\/2″ in each side that is 12″ in total.\n<\/p>\n
Para 15. The R.C.Pillars of the plaintiff’s wall have been put up independently
\nwithout touching the compound wall, but touching the southern edge of the
\ncornice. Probably at Point shown in diagram No.I. The plastering of the
\nplaintiff wall might have given the impression as though the same was
\nconstructed on the defendant compound wall. Further the respondent counsel
\npointed out the cement mortar used for plastering of the plaintiff’s wall have
\nspilled over the compound wall of the defendant. And for the purpose of the
\nfinishing touch very negligible and small gap between the said wall and the
\ncompound wall was plastered to give the appearance of slope to avoid running of
\nrain water in between both walls.” (emphasis supplied).\n<\/p>\n
\t13. It is pertinent to point out that no steps have been taken by the
\ndefendant to assail the Commissioner’s Report. Before the trial Court by
\nadducing any plausible evidence. As such the Commissioner’s report is a reliable
\npiece of the evidence and he demonstrated that no part of the wall of the
\nplaintiff is resting on the compound wall of the defendant. Exs.P.9 to P.14, the
\nphotos would also evince and evidence the location of both the walls and the
\nplastering mortar linking both the walls at the level of the top of the compound
\nwall.\n<\/p>\n
\t14. The sketch prepared by the learned Advocate Commissioner would
\ndemonstrate that the Defendant is compound wall at the top is having cone shape
\nand on either side of the compound wall of the Defendant, there is cornice
\nprojection, each to the extent of 1-1\/2 inch. It is evident that  and so as to
\nthat the top portion of the compound wall is projecting on the defendant’s land
\nto an extent of 1-1\/2 inch. The Commissioner also highlighted that the cone
\nshape on the one side sloping from the centre of the compound wall towards north
\nmeasuring 8-1\/2 inch. But on the southern side slope measures itself 8 inches as
\nthe plastering made by the plaintiff occupies the remaining slopy portion of the
\nsaid compound wall. On the top, he has also measured from the mid point of the
\ncompound wall to the plaintiff’s wall and it measured 5-1\/2 inch, where as from
\nthe mid point to edge of the cornice on the northern side, it was 6 inch and
\neven, as per that only 1\/2 inch area is occupied by the plastering of the
\nplaintiff’s wall. As already highlighted above, there is one other point, the
\nsouthern side cornice of the compound was to an extent of 1-1\/2 inch is
\nprojecting on the defendant’s land presumably. But ignoring even that fact
\nconsidering as such, only 1\/2 inch plastering is protruding on the defendant’s
\nwall. In my opinion, this is only a negligible one. Section 95 Indian Penal
\nCode, embodies the maxim “De minimis non curat lex (Low does not take care of
\ntrifles).   Whatever might be, for that negligible extent of the plaintiff’s
\nplastering of his own wall protruding over the area of the defendant at the most
\nsome compensation could be awarded and that would meet the ends of justice.\n<\/p>\n
\t15. The question arises as to whether the Railway department is expected
\nto proceed under the Public Premises (Eviction of unauthorised occupants) Act
\n1971, so as to remove that negligible portion of the plastering effected by the
\nplaintiff. I am of the considered view, that such action is unwarranted and
\nawarding of compensation would meet the ends of justice. The perusal of the
\njudgment of both the Courts below would show that they have not at all
\nconsidered all these aspects while deciding the matter.\n<\/p>\n
\t16. The trial Court simply jump to the conclusion that part of the wall of
\nthe plaintiff is built over the compound wall of the defendant, which findings
\nof fact is totally apathetical to the Commissioner’s report which has not been
\nset aside or rejected by the trial Court. In such view of the matter, there is
\nconsiderable force in the argument of the learned counsel for the appellant that
\nboth the Courts below failed, to understand the Commissioner’s report in
\nstricto-senso by misreading the Commissioner’s report including the sketch, both
\nthe courts below had fallen into error, which warrants this Court to interfere
\nin the Second appeal as there is expacie and prima-facie error in interpreting
\nand misreading  the Commissioner report and the Sketches. Awarding compensation,
\nis by way of striking a balance between the two. The compensation awarded should
\nbe in recognition of the right of a Defendant which is a public body.  In my
\nopinion awarding a sum of Rs.20,000\/- (Twenty thousand) would meet the ends of
\njustice and the appellant shall deposit it in the trial Court or directly tender
\nit to the defendant, if the defendant chooses to receive it as a case may be
\nwith in two months from this date.  Accordingly, the substantial question of law
\nNo.1 is answered.\n<\/p>\n
Substantial questions of law 2 and 3 :-\n<\/p>\n
\t17. While hearing the arguments, the substantiate questions of law nos. 2
\nand 3 relegated themselves to lesser importance as a mere reading of the
\nrelevent portion of the Tamil Nadu Town and Country Planning Act 1971 Act 35 of
\n1972. It would clearly show that the term Railway does not include the immovable
\nproperties of the Railway Department, where there is no Railway track running.
\nThe objection of preventing constructions within an extent of 30 metres is to
\nsee that building are not constructed for nothing but to get collapsed due to
\nthe vibration of the movements of the trains. Here admittedly and indubitably,
\nno railway line is running within 30 meters from the building of the plaintiff.
\nAccordingly, the substantial questions of law Nos.2 and 3 are answered.\n<\/p>\n
\t18. In the result, the second appeal is disposed of setting aside the
\njudgment of both the Courts below and decreeing the Original Suit No.1029 of
\n1991 to the effect that there shall be permanent injunction as against the
\ndefendant, his agents, servants and men by way of restraining them not to
\ninterfere with any part of the constructions of the plaintiff as found set out
\nin Exs.C.1 to C.3, the Commissioner’s report and Sketches respectively.\n<\/p>\n
\t19. The plaintiff shall pay a compensation of Rs.20,000\/- (Twenty
\nthousand) to the defendant within two months from this date.\n<\/p>\n
\t20. However, in the facts and circumstances of the case, the parties are
\nordered to bear their respective costs.\n<\/p>\n
To<\/p>\n
1. The  Principal Sub Judge,
\n   Madurai.\n<\/p>\n
2. The District Munsif,
\n   Madurai Taluk.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N.S.Balasubramanian vs Union Of India on 13 June, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-25308","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN.S.Balasubramanian vs Union Of India on 13 June, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-s-balasubramanian-vs-union-of-india-on-13-june-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.S.Balasubramanian vs Union Of India on 13 June, 2007 - 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