This Second Appeal has been preferred against the Judgment and Decree, dated 29.11.1999 made in A.S.No.34 of 1997 on the file of the Principal Subordinate Judge, Nagercoil, reversing the Judgment and Decree, dated 03.07.1996 in O.S.No.1029 of 1993 on the file of the Principal District Munsif, Nagercoil.
2. The appellant herein is the defendant in the suit. It is seen that the suit was originally filed by the plaintiff, late Thiruvu Pillai, sister of the appellant against the appellant, seeking declaration of title, recovery of possession and other consequential relief, relating to the suit property.
3. After the trial, by Judgment and Decree, dated 03.07.1996, the suit was dismissed by the trial court. Aggrieved by which, appeal was preferred by the respondents herein, being the legal representatives of the plaintiff, since the plaintiff was reported dead, by impleading them as appellants. By Judgment and Decree, dated 29.11.1999, the appeal in A.S.No.34 of 1997 was allowed, whereby the Judgment and Decree passed by the trial court was set aside and the first appellate court granted relief of declaration, mandatory injunction and other relief as prayed for by the respondents herein. Aggrieved by which, this Second Appeal has been preferred by the appellant herein, who was the defendant in the suit.
4. In the Second Appeal, the following Substantial Questions of Law are framed for consideration :
"1. Whether the judgment of the court below regarding encroachment on the part of the defendant as alleged by the plaintiff can be sustained in law having regard to the fact that the Commissioner's plan regarding the suit property is not based on any reliable and acceptable documents, but it is admittedly a rough plan prepared without making use of a survey plan ?
2. Whether the decree for mandatory injunction is sustainable in law when the alleged offending construction was in progress, the plaintiff stood by and acquiesced in it without making any objection ?"
5. It is an admitted fact that the appellant / defendant and the plaintiff late Tmt.Thiruvu Pillai were daughters of one Neelakanda Pillai, who was the original owner of the property. After his death, they partitioned the property and in view of the same, entered into a registered partition deed on 12.02.1990. According to the respondents herein, the southern half portion was allotted to the plaintiff and the northern half portion was allotted to the appellant / defendant, which is not in dispute. However, according to the plaintiff, the appellant /defendant had encroached the property that was allotted to the share of the plaintiff, by putting up illegal construction on 03.10.1993. With the above pleadings, the plaintiff had sought the relief of declaration of title, mandatory injunction and other consequential relief against the appellant / defendant.
6. It is admitted by both the parties in the appeal that Ex.A.1, registered partition deed, dated 12.02.1990 was entered into between the plaintiff and the defendant of the suit. Similarly, as per Ex.A.1, the respondents herein are entitled to the southern half, as the legal heirs of the plaintiff and the appellant / defendant is entitled to northern half of the property, as stated in Ex.A.1, which is not in dispute.
7. In the suit, Advocate-Commissioner was appointed, as per order passed by the trial court. After inspecting the property, the Advocate-Commissioner filed his report and plan, which were marked as Ex.C.1 and Ex.C.2. During the visit of the Advocate-Commissioner, both the parties with their respective counsel were present. The Advocate-Commissioner has stated that two windows and iron grill were facing the suit schedule property and three sun shades recently constructed on the house wall, were also found projecting in the property allotted to the respondent / plaintiff. In point number 2 specified by the learned Advocate-Commissioner, he has categorically stated that the defendant, who is the appellant herein had encroached the plaint schedule property by constructing sun shade inside the suit schedule property. During his first visit on 08.01.1994, he could find two windows were installed and constructed on the northern wall of the respondents' property, though a space had been kept open for fitting an iron grill on the house wall and during his second visit on 22.07.1995, the said face was also fitted with iron grill. He has also stated that there was a damage caused to the plaintiff's property and valued the same as Rs.1,500/-.
8. The appellant / defendant has admitted in her evidence that she is a teacher working in a school and according to her, she constructed her building, as per the plan sanctioned by the authorities. However, she did not file her plan for the reason best known to her. In the cross-examination, she has stated that she did not have the sanctioned plan with her. Had the building been constructed, as per the sanctioned plan, she could have produced the said plan or an attested true copy of the same. Though the trial court dismissed the suit, the first appellate court, considering the evidence and the Commissioner's Report, has held that the act of the appellant / defendant, having constructed the sun shades projecting on the side of the suit schedule property, as unfair, on the part of the appellant / defendant. Being an educated person, considering the partition deed between herself and her sister, the plaintiff, the appellant herein could have avoided the violation by putting up her sun shades projecting the land belongs to the respondents. It is not in dispute that both the parties have filed objections to the Commissioner's Report before the trial court. The Advocate-Commissioner was also examined as C.W.1 before the trial court. The Advocate-Commissioner has deposed that he measured the property with the help of surveyor and found that there was encroachment by the appellant / defendant and he has also given measurements.
9. Mrs.J.Anandavalli, learned counsel appearing for the appellant submitted that though the Commissioner has given measurement in the plan and sketch, Ex.C.2, prepared by a licensed surveyor, the property was not measured by a Government surveyor with the help of revenue records and therefore, the respondent / plaintiff is not entitled to mandatory injunction for seeking demolition of the sun shades.
10. In a civil case, the burden of proof is primarily rests on the plaintiff, who filed the suit, however, the defendant who is also in a similar footing cannot suppress any vital document, which is necessary to decide the dispute, merely by saying that the burden of proof lies on the plaintiff. In the instant case, the appellant / defendant has stated that she had constructed the building, as per the sanctioned plan, however, neither the plan nor a certified copy thereof was marked before the court below for the reasons best known to her. The evidence of the Advocate-Commissioner is that the appellant / defendant had encroached the plaintiff's property by projecting her sun shades and also caused damage to the wall of the respondent / plaintiff and that was an unfair act of the appellant / defendant.
11. It was further argued by the learned counsel for the appellant / defendant that the respondent / plaintiff was keeping quite till the sun shade was put up by the appellant / defendant and hence, the relief sought for by the respondent / plaintiff is hit by doctrino of laches.
12. In the instant case, as per the pleadings, the appellant / defendant had started construction only on 01.08.1993 and according to the plaintiff, she had raised her objection, then gave a complaint before the police against the act of the appellant / defendant, then, she filed the suit on 07.10.1993. In such circumstances, there is no error in the finding of the court below that the act of the appellant / defendant in putting up the sun shade projecting on the side of the respondents as unfair and further, when the Advocate-Commissioner has specifically stated in his report, Ex.C.1 and plan, Ex.C.2 that there was encroachment by the appellant herein in putting the sun shade on the portion allotted to the respondent / plaintiff. In order to sustain the defence, the appellant could have taken steps to re-issue the warrant to the same Advocate- Commissioner to measure the property with the help of Government surveyor, as per the revenue records and merely raising the defence in the Second Appeal that the Advocate-Commissioner has not measured the property, with the help of a Government surveyor and revenue records cannot be accepted. If the defence raised by the appellant is bonafide, she could have raised the same before the courts below and also taken steps to measure the property by a Government surveyor with the help of revenue records, as claimed by her. Having encroached and put up sun shades against the interest of the respondent / plaintiff, as per the Advocate-Commissioner's Report and Plan, it is not open to the appellant / defendant to raise such a defence in the Second Appeal.
13. Apart from the Advocate-Commissioner's Report and Plan, the partition deed admittedly entered into by both the parties to the suit has been marked, apart from the other evidence available on record. Hence, it cannot be said that there is no acceptable documents to support the case of the respondents. Therefore, I am of the view that the plea of the appellant / defendant is not legally sustainable in the Second Appeal and accordingly, answer the first Substantial Question of Law against the appellant and in favour of the respondents herein.
14. The appellant has raised her second substantial question of law that the respondents were keeping quiet when the appellant was putting up the construction and therefore, seeking a decree for mandatory injunction is not sustainable on the ground of acquiescence. In the instant case, admittedly, there is a registered partition deed between both the parties with regard to the suit property, whereby the plaintiff was allotted the southern half portion and the defendant was allotted northern half portion. In the partition deed, the survey number, boundary and specific measurements were given. As per the plaint, on 01.08.1993, the appellant had started construction by encroaching the respondents' property, after raising her objection, on 03.10.1993, the plaintiff gave complaint before the police, then filed the suit on 07.10.1993. In such circumstances, it cannot be said that the respondents / plaintiff were keeping quiet, while the appellant was putting up construction and making encroachment in the respondents' property and thereby committed guilty of laches or acquiescence and therefore, I am to answer the second Substantial Question of Law also against the appellant / defendant and in favour of the respondents herein.
15. The first appellate court has property gone through the evidence both oral and documentary and accordingly, reversed the Judgment rendered by the trial court and hence, I am of the view that there is no error or infirmity in the impugned Judgment and Decree to be interfered with in the Second Appeal and accordingly, the Second Appeal fails and the same is liable to be dismissed.
16. In the result, confirming the impugned Judgment and Decree passed by the appellate court, this Second Appeal is dismissed. However, in the interest of Justice, it is made clear that the appellant / defendant is directed to remove the encroachment made projecting in the property allotted to the plaintiff, mother of the respondents herein, as per Ex.A.1, within two months from the date of receipt of a copy of this order, failing which the respondents are at liberty to file a petition before the trial court and the trial court shall appoint an Advocate-Commissioner, who has put in not less than ten years standing at the Bar to inspect the property with the help of Taluk Surveyor and measure the same, as per the revenue records with reference to the partition deed, Ex.A.1. If there is an encroachment or projection of sun shades in the property belongs to the respondents, the same shall be removed by the Advocate- Commissioner, to be appointed by the court below, for which, the expense shall initially be paid by the respondents. However, even if it is any small encroachment or projection, the respondents are entitled to get it reimbursed from the appellant / defendant with the cost of the Second Appeal.
17. With the above direction, this Second Appeal is dismissed.
tsvn To
1. The Principal Subordinate Judge Nagercoil.
2. The Principal District Munsif Nagercoil.