Narayanasamy vs Paulraj, Appuraj and Rengaraj

R.S. Ramanathan, J.—The revision Petitioner in both the revision petitions are one and the same.

Civil Revision Petition No. 276 of 2009 was filed by the Petitioner against the order passed in E.P. No. 22 of 2007 in O.S. No. 1 of 2002 the Sub Court, Kulithalai and Civil Revision Petition No. 1645 of 2009 is against the order passed in E.P. No. 36of 2004 in O.S. No. 1 of 2002 on the file of the District Munsif, Kulithalai.

E.P. No. 36 of 2004 was filed by the revision Petitioner seeking for a direction to punish the Respondents for having committed contempt of court and that petition was dismissed. E.P. No. 22 of 2007 was filed by Respondents 1 and 3 herein for punishing the revision Petitioner for having committed contempt of court and that petition was allowed and therefore, these two revision petitions are filed by the revision Petitioner.

The suit in O.S. No. 1 of 2002 was filed by the Respondents against the revision Petitioner and in that suit, a compromise decree was passed as follows:

"1. In the plaint lane, from the Peralamman Koil Street, towards south, a portion measuring 66 feet east-west and 3 feet north-south shall be maintained by the parties as a common lane and in that portion, both the parties should not do any encroachment.

The remaining 28 feet length and 3 feet width south of the first mentioned portion belongs to the Plaintiff absolutely.

The parties shall act according to the compromise memo."

The above compromise decree was passed on the basis of the compromise memo filed by both the parties by incorporating the same terms. As per the compromise memo filed by the parties, in the north-south common lane measuring 66 feet north-south from Peralamman Koil Street, at the southern end of 66 feet, there shall be a common wall to the height of 3 feet and both the parties must maintain that common wall and at the entrance of Peralamman Koil Street, the parties agreed to have an iron gate to have access to the common lane and the parties also agreed to retain the water connection laid in the common lane near the common wall on the southern end by the Plaintiffs.

The revision Petitioner filed E.P. No. 36 of 2004 stating that as per the memo of compromise, the parties are expected to maintain the common wall upto a height of 3 feet at the southern end of the common wall and during the absence of the revision Petitioner on 28.12.2003, the Respondents demolished the east-west common wall and constructed a new common wall having a width of 5feet 4 inches by encroaching upon the common wall and that was known to the revision Petitioner only when he measured the property and immediately thereafter, the revision Petitioner gave a notice to the Respondents to remove the newly built common wall. Further, the Respondents also put up cornices and laid their sun-shades to a length of 2-1/2 feet projecting towards western direction in the common wall area and that was also against the memo of compromise and the compromise decree passed in O.S. No. 1 of2002 and therefore, those encroachments made by the revision Petitioners are to be removed.

The Respondents filed E.P. No. 22 of 2007 stating that the revision Petitioner acted contrary to the compromise decree and the memo of compromise by raising the floor of the common lane to3 feet upto a distance of 28 feet and the revision Petitioner is also covering the common wall by placing rafters on their wall and also placed sun-shades over the rafters so as to cover the entire common lane to a distance of 24 feet north-south and these are against the terms of the compromise and they must be removed.

The learned District Munsif, Kulithalai appointed an Advocate Commissioner and on the basis of the report of the Advocate Commissioner, the Sub Judge passed order in E.P. No. 36 of2004 on 22.3.2006 directing the revision Petitioner to reduce the height of the common lane to a distance of 24.8 feet north-south which was increased by the revision Petitioner and also to remove the sun-shades from his wall to the Respondents wall. As the Petitioner did not obey the orders passed in E.P. No. 36 of2004, the Respondents herein filed E.P. No. 22 of 2007 for punishing the Petitioner and that petition was allowed.

It is submitted by Mr. K. Srinivasan, learned Counsel for the revision Petitioner that the court below, without appreciating the terms of the compromise decree, erred in directing the Petitioner to remove the obstructions and at the same time dismissed the application filed by the revision Petitioner when the revision Petitioner complained of violation of the terms of compromise by the Respondents. The learned Counsel submitted that as per the compromise memo and as per the decree, both the parties are restrained from making any encroachment over the suit common lane and by no stretch of imagination, it can be stated that the raising of the ground level common lane by 3 feet, covering the common lane by placing sun-shades from the cornices fixed on the revision Petitioner''s wall, the revision Petitioner has encroached upon the common property and if at all there is any infringement of right to light and air, they will have to file a fresh suit and they cannot file Execution Petition to remove those things as if the revision Petitioner has committed encroachment on the common lane. In other words, the learned Counsel submitted that if there had been any encroachment on the common lane by preventing the Respondents from using the common lane, then the Respondents can complain against the Petitioner and when the Petitioner has only raised the height of the ground level and only covered the common lane, it cannot be stated that he has encroached the common way and there is no prohibition for the Respondents to enjoy the common lane as before and therefore, the court below ought not have allowed the application filed by the Respondents. He further submitted that the Petitioner has specifically alleged that the common wall that was available at the southern end at the distance of 66 feet was demolished and the Respondents substituted a new wall in that place by encroaching 4 feet 5 inches and that was not taken into consideration by the court below. Further, the Respondents also erected cornices on their wall and also placed sun-shades and when the court below directed the Petitioner to remove sun-shades from his wall, the court below ought to have ordered the Respondents also to remove the sun-shades from their wall and the action of the court below in allowing the Respondents to keep their sun-shades in their wall would amount to discrimination and the court below should not have directed the Petitioner to remove the sun-shades from their wall and also reduce the height of the common lane.

On the other hand, Mr. V.G. Kamalesh, learned Counsel for the Respondents submitted that the revision petition in C.R.P. No. 276 of 2009 is not maintainable. He further submitted that as per order in E.P. No. 36 of 2004, the court below has held that the Petitioner has committed encroachment by raising the ground level of the common lane by 3 feet and also enclosed the lane upto a distance of 24 feet 8 inches by placing sun-shades over the common lane and that order was not challenged andE.P. No. 22 of 2007 was filed only to punish the revision Petitioner for having disobeyed the order passed in E.P. No. 36 of 2004 and the court below also directed the Petitioner to remove the sun-shades and also to reduce the height of the common lane and the wilful disobedience of the direction of the court below amounts to contempt and the court below, instead of punishing the Petitioner, has only directed the Petitioner to remove the sun-shades and remove the wall and therefore, the order of the court below does not call for interference. He also relied upon the judgment in STATE OF INDORE v. VISHESHWAR (AIR 1934 ALLAHABAD 1054) wherein our High Court judgment in RATHINAVEL MUDALIAR v. KOLANDAVELUPILLAI (1906) 29 MAD 511) : (16 MLJ 281) was relied upon and as per the judgment, if a person is prevented from enjoying the property by any means, that amounts to encroachment and having covered the entire common passage by placing sun-shades and by raising the ground level of the common lane, the Petitioner has encroached upon the common lane and therefore, the court below is right in directing the Petitioner to remove the same.

The learned Counsel for the Respondents further relied upon the decisions in Kaliammal and another Vs. D.C. Arunachalam and 6 others, and Kanakamma Vs. Kamalan, and submitted that when a suit was decreed for declaration and injunction restraining the Defendants from putting up any construction or entering into suit property and when any encroachment is made by the Defendants, there is no need to file a separate suit and in that suit itself, the execution application can be filed to remove the obstructions.

Heard both the counsel.

In these civil revision petitions, we will have to see whether the revision Petitioner has committed encroachment over the common pathway as alleged by the Respondents and whether the Respondents have committed contempt of court by removing the common wall and erecting new common wall against the terms of compromise. Admittedly, an Advocate Commissioner was appointed in this case and he has also filed a report. As per the report of the Advocate Commissioner, B,C east-west wall is the boundary for the common lane on the southern side. The Advocate Commissioner also found that on the eastern side of ''B'' ''C'' wall, another wall was constructed which was marked as B" C" and those two walls are adjacent to each other. It is also found that the water pump connection as noted in the compromise decree is situate just north of the B,C wall particularly north of the point C. Therefore, even assuming that the width of the B,C wall was increased from 3feet to 4 feet 5 inches by the Respondents as alleged by the revision Petitioner, the increase in the width of the common wall was only towards southern direction which belongs absolutely to the Respondents. Therefore, it cannot be stated that the Respondents have violated the terms of the decree by replacing B,C wall and constructed a new wall having more width. Further, as per the Commissioner''s plan, B,C wall is an old wall and B" C" wall was not attached with B,C wall and in the north of the B,C wall on the western side, a water pump is there. Therefore, the presence of the water pump as per the compromise memo makes it clear that the B" C" wall, even assuming that it was constructed newly, was constructed only on the same place and the Respondents have not encroached upon the common wall by constructing a new wall. This was rightly appreciated by the court below and the court below rightly held that there was no encroachment by the Respondents on the common wall by constructing a new wall as alleged by the revision Petitioner. Therefore, the court below rightly dismissed. E.P. No. 36 of 2004 filed by the revision Petitioner and therefore,C.R.P. No. 1645 of 2009 is dismissed.

As regards the contention of the revision Petitioner in C.R.P. No. 276 of 2009 that there is no encroachment on the common lane by the revision Petitioner and the increase in the ground level and placing sun-shades over the common lane will not amount to encroachment, in my opinion, the contention of the learned Counsel cannot be accepted. Our High Court as early in1906, in the judgment reported in RATHINAVEL MUDALIAR v.KOLANDAVELU PILLAI (1906) 29 MAD 511) : (16 MLJ 281) has held as follows:

Where a man erects a building overhanging the land of another, he commits a trespass for which an action will lie against him and he will by prescription acquire a right to the space occupied by such projection and the right to maintain it in its position. A cornices overhanging a neighbour''s land cannot be removed by such neighbour if it has been in existence for more than 12 years.

Therefore, as per the above judgment, the open space above the common lane must also be treated as common property to be enjoyed by co-owners and if that enjoyment is infringed by placing any sun-shades that amounts to encroachment. In this case, admittedly, the revision Petitioner placed sun-shades to a length of 1.9 feet towards east so as to cover the common lane to a distance of 24 feet 8 inches north-south and as a result of that, the light and air to the Respondents house was prevented and the Respondents are entitled to have free light and air to their house through the common lane. The revision Petitioner prevented light and air to the Respondents house and therefore, it is an encroachment committed by the Petitioner on the common property which the revision Petitioner is not expected to do as per the compromise decree.

Similarly, by raising the ground level upto a distance of 24 feet 8 inches, the remaining portion of the common lane is affected and therefore, the raising the ground level of the common lane to a distance of 24 feet 8 inches north-south by the revision Petitioner also amounts to encroachment. Further, as rightly stated by the learned Counsel for the Respondents, the court below passed the order in E.P. No. 36 of 2004 directing the revision Petitioner to remove the encroachment and to reduce the height of the common lane and also to remove the sun-shades and that order has become final as it was not challenged. The order passed in E.P. No. 22 of 2007 is only in pursuance of the order in E.P. No. 36 of 2004.

Further, according to me, the revision Petitioner has committed encroachment on the common lane by raising the height of the common lane on the ground level and also by placing sun-shades over the cornices fixed on his eastern wall by which, the common lane was closed and the action of the revision Petitioner amounts to encroachment as per the judgment of this Honourable High Court reported in (1906) 29 Mad 511 : 16 MLJ 281 referred to above. Hence, I do not find any reason to interfere with the finding of the court below.

In the result, the civil revision petitions are dismissed. No costs. The connected miscellaneous petition is also dismissed.