BOOLAGASUNDARAM PILLAI Vs. APPATHURAI PILLAI AND ORS.

JUDGEMENT

(1.) This second appeal has been preferred by the first Defendant in a suit against whom the Courts below have concurred in granting relief to the Plaintiffs for restoration by the first Defendant of a latrine which the first Defendant removed. The injunction granted is a mandatory one for the reconstruction of the latrine at its original place. A brief narration of the facts of the case and the proceedings leading up to the second appeal are necessary for the appreciation of the interesting question raised on behalf of the Appellant, the first Defendant in the case.

(2.) The first Defendant and the first and second Plaintiffs are now owners of adjoining houses. Originally the property was owned by their family and had a single door number, 73 -A, in the occupation of the first Plaintiff, the father of the second Plaintiff and the father of the first Defendant. The property is situated within the municipal limits of Tiruchirappalli and north of the residential portion is a private lane belonging to the family. In this lane, at the eastern extremity, there had been a latrine for the use and enjoyment of the family. The first Defendant's father divided himself off from his brothers under exhibit A -l in 1917 and later the first Plaintiff and the second Plaintiff's father, got separated under the partition deed exhibit A -3, dated 9th September 1926. Under these partitions the first Defendant became entitled to door number 3, the first Plaintiff to door number 4, and the second Plaintiff to door number 5. The latrine above referred to which had been in existence prior to the partition was enjoyed by the sharers in common, the first Defendant having one -third share therein and the Plaintiffs, the remaining two -third share as between themselves. Exhibit A -3 refers to the rights of the first Plaintiff and second Plaintiff's father, each to a one -third right to the latrine in question. It is the finding of the Courts below that till 14th August 1959 this latrine had been in the common enjoyment of the three owners of door numbers 3, 4 and 5 above referred to, the lane being kept in common, that is, the parties are tenants in common of the lane and latrine and the same is for the benefit of the use of the three tenants in common. While thus the latrine had been serving the needs of the three houses, the first Defendant appears to have moved the Tiruchirappalli Municipality for the removal of the suit latrine on the ground that its existence was a nuisance. He had not apprised his tenants in common, the Plaintiffs, of this move of his. On 15th August 1959, the first Defendant started pulling down the suit latrine at about 6 a.m., despite the protest of the Plaintiffs on the pretext of a notice issued by the municipality. As found by the Courts below, the first Defendant appears to have maneuvered to get himself served with the notice in question before 6 a.m. on 15th August 1959 and a similar notice exhibit B -2 was served on the first Plaintiff only at 9 a.m. Meanwhile the first Defendant who it is clear bas made the notice a pretext had brought about a fait accompli destroying the latrine by pulling down the two walls in the south and west. As per the commissioner's report, it appears to be an open and with not too high walls on the south and west with the compound walls with north and east enclosing it. The Plaintiffs sent notice to the first Defendant claiming its restoration. They also issued a notice to the Tiruchirappalli Municipality for cancellation of the notice exhibit B -2 which they issued in the matter. The Plaintiffs suddenly and without adequate notice deprived of an essential amenity and thrown on the indulgence of the owner of the adjoining house door number 6 for the use of his latrine, came forward with this suit claiming relief against the first Defendant, the present Appellant, for restoration of the latrine. The Tiruchirappalli Municipality by its executive authority, the commissioner, was impleaded as the second Defendant. The Courts below, on an examination of the notice exhibit B -2 which purports to be under Ss. 39,42 and 134 of the Madras Public Health Act III of 1939, the relevant provisions of the Act in question, and, the available evidence on record, held that the order for the removal of the latrine was illegal. It has been held that there is no necessity for the Plaintiffs to seek cancellation of the order specifically. Finding that the Appellant was not justified in demolishing the suit latrine without the consent of his co -tenants, mandatory injunction was granted as prayed for. The municipality had raised a special plea as to the maintainability of the suit in the absence of sanction under Sec. 142 of Madras Act III of 1939. While the trial Court held that in the circumstances the Sec. was not a bar to the suit, on an independent appeal by the municipality, Appeal No. 358 of 1961, the learned Subordinate Judge upheld the plea of the municipality that the said Sec. was a bar and dismissed the suit as against the municipality. The appeal by the first Defendant against the decree for injunction against him in which as may be expected he had impleaded the municipality also as a party Respondent, was dismissed.

(3.) The principal point urged by Mr. A.V. Narayanaswami Iyer appearing for the Appellant is that, as the suit has been dismissed as against the municipality, the decree for mandatory injunction against the first Defendant also cannot be maintained. Learned Counsel seeks to sustain this contention on several grounds. It is contended that the Appellant 's act of demolition is in obedience to the order of a statutory authority. The act has, therefore, legal sanction behind it and failure to obey the order could be visited with penalty by the municipality. Learned Counsel submits that even assuming that the Appellant had made the notice by the municipality a pretext for his action, still as the notice by the municipality stands, the suit against the municipality having been dismissed restoration of the latrine would violate the notice which has become final. It is urged that even though the Court might have held that the notice was illegal and ultra vires, the municipality is not bound by the findings in the suit, which as against the municipality has been dismissed. In any event, it is contended, there is likelihood of his being subject to penal consequences, if the latrine is restored by him there having been no final adjudication of the invalidity of the notice binding on the municipality. In such circumstances it is submitted that the Court would not grant the discretionary relief of injunction. It is also contended that the parties being tenants -in -common relief by way of mandatory injunction is not an appropriate relief and at the most the Plaintiffs can claim and ought to be given only damages, and this they had not claimed.