C RAMALINGAM Vs. S LEELAVATHI

JUDGEMENT

(1.) The unsuccessful defendant is the appellant in both the appeals. The respondent plaintiff filed the suit for a mandatory injunction directing the appellant to remove and dismantle the columns constructed by him and for perpetual injunetion not to proceed with the proposed construction and not to obstruct the flow of water from the roof of plaintiff's property of the defendant and also for permanent in junction from laying balcony in both west corner of his property and opening door way in the north west portion of his wall.

(2.) The plaintiffs case is that the property is her family property Her mother-in-law purchased the schedule property in the year 1914 from father and uncles of the defendant and they have been living in the house. The defendant is the adjoining house owner The defendant being an influential man, obtained sanction from the Government by relaxing the building Rules and without setting apart any land between his house and the plaintiff's house and the defendant was proceeding post haste with the construction. He has put up three or four columns by removing the tiles of the house, on the north-west side. He also caused damage to the walls. He was proceeding to lay the roof in two or three days affecting her rights. Thus, she sought the reliefs referred to above. The case of the appellant, defendant is that he did not encroach upon the the property of the respondent and he has bsen constructing the building according to the plan sanctioned by the corporation and that therefore it is perfectly valid and the injunctions sought for by the plaintiff cannot be granted. Pending the suit, interim injunction was sought for. In the first instance, interim injunction is granted but however, later it was dismissed. Against that order, an appeal had been filed. The appeal was allowed and the matter was remanded to the trial Court. Thereafter the trial Court, granted injunction against that order, the appellant filed CMA. I am informed that during the pendency of the CMA a jotnt memo has been filed to maintain status quo with regard to the construction of the balcony and with regard to the construction of the house, it may be proceeded with. During the pendency of the suit, a Commissioner was appointed in the first instance to make local inspection and to. submit a report regarding the encroachment, said to have been made by the appellant. The Commissioner who has been examined as D. W. 2 filed Exhibit C-3 report and Exhibit C-4 plan The Commissioner found that the appellant constructed the balcony encroaching dn the asbestos roof projection portion in an extent of 6". After framing the necessary issues and adduction of the evidence, the trial Court decreed the suit to the extent of the mandatory injunction directing the appellant to remove 6 encrochment of the balcony constructed over the roof of the plaintiff's asbestor room situated on the north-west. Dissatisfied with the decree, the appellant carried the matter in appeal. Similarly the respondent filed A. S. No. 510 of 1981. The appellate Court confirmed ths mandatory injunction of removal of the balcony to the extent of 6. In the appeal of the respondent, the appellate Court remanded the matter directing the trial Court to appoints a Commissioner to make a local inpection and enquire As to whether there is an encorachment made by the defendant in erecting the columns. To that extent the judgment and decree of the trial Court was modified. Pending the appeal and also the tuit, arrangements were made for the flow of water from the plaintiff's house through the defendant's house. Therefore in that view the appellate Court directed that the arrangements should continue and should be maintained by both the parties in future at the expense of both the parties in equal shares. Challenging the order of the remand, the CMA has been filed and against the concurrent decree of the mandatory injunction, the second appeal has been filed.

(3.) Sri. A. Suryanarayana, learned Counsel for the appellant contended that the decree of the mandatory injunction is not sustainable in law. According, to him, the plaintiff as P. W. 1 admitted that from the pial she did not leave any open land. P. W. 2 admitted that there is an encroachment of 9." balcony into the municipal land. In view of these admissions, it must be held that the respondent is not the owner of the land over which the appellant is found to have encorached. Unless the respondent establishes that she has title to the encorached property, there is no obligation cast on the appellant to maintain that right of the respondent. No findings are recorded by the Courts below in this regard. He also further contended that on the finding of the appellate Court that the future rights of the respondent will be affected, that mandatory injunction cannot be granted in anticipation of the future eventualities. In support of these contentions, he relied upon Hyderabad Stock Exchange v. Ranganath Ratal and Company. Narayanadas v. Saraswati Bai, Narayanadas v Atma Ram and Contine fat Banking Co , v. Woodring, Assailing the remand order, he contended that there is no pleading in the plaint that the appellant encroached into the land of the respondent and constructed basement. There is no issue and there is no finding by the trial Court. Therefore, the remand order of the appellate court is illegal. He further contended that even if such eventuality could be happened, the remand order is illegal for the reason that the trial Court did not dispose of the suit on the preliminary issue. Therefore Order 41, rule 23, Civil Procedure Code, is not attracted since the trial Court has disposed of the suit on merits. The only course open to the appellate Court is that it could have framed an issue and sent back the record to the trial Court, keeping the appeal pending for further hearing and finding could have been called for and disposed of the appeal on merits thereafter. Therefore the order of remand is illegal. He further contended that the decree of mandatory injunction for demolition of 6" balcony is vague without specifying as to what is the particular portion which was directed to be demolished. Therefore it needs clarification. The direction given by the Court below works hardship for the reason that the appellant constructed three storied building and if the Commissioner makes an enquiry, founda- have to be dug and taereby the structure of the building would be weakened causing damage to the property. Therefore it works but inequity and injustive to the appellant if that directions is allowed to be continued.