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2019 (9) TMI 168

..... he revision petitioner/plaintiff is that though the respondents/ defendants 2 and 3 are aware of the fact that the suit property belongs to the Central Government, they attempted to tresspass into the suit property - time limitation. HELD THAT:- In the instant case, the revision petitioner/plaintiff did not seek for recovery of possession of the suit property from the defendants, especially when they admitted that the defendants had constructed a building in the suit property. Further more, it is seen from the written statement that the defendants have questioned the title of the plaintiff to the suit property. In such circumstances, it is the bounden duty of the plaintiff to seek for a relief of declaration of their title to the suit property and for recovery of possession of the same from the defendants, which has not been done by the plaintiff in the instant case. As per Article 113 of the Limitation Act, right to sue accrues when there is an accrual of the rights asserted in the suit and an unequivocal threat by the defendant to infringe the right asserted by the plaintiff in the suit and the period of limitation is 3 years - In the instant case, even though the revision petiti .....

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..... Public Works Department, Coimbatore. The main contention of the revision petitioner/plaintiff is that though the respondents/ defendants 2 and 3 are aware of the fact that the suit property belongs to the Central Government, they attempted to tresspass into the suit property. Therefore, they filed a suit for permanent injunction restraining them from interfering with their peaceful possession and enjoyment of the suit property. 3. The respondents/defendants filed their written statement questioning the title of the plaintiff to the suit property. Subsequently, the revision petitioner/plaintiff filed a petition in I.A.No.72 of 2010 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure praying to appoint an advocate commissioner to inspect the suit property and to measure the illegal construction made by the defendants, with the help of a Taluk Surveyor and a Chartered Civil Engineer. They also filed another application in I.A.No.118 of 2010 under Order VI Rule 17 of the Code of Civil Procedure praying to amend the plaint to include the prayer of mandatory injunction directing the respondents/defendants to remove the construction put up by them in the suit pro .....

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..... ainly to avoid multiplicity of proceedings between the parties and that the courts while deciding such applications should not adopt hyper technical appraoach. His specific cotention is that technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. According to him, when the Government of India is able to trace their title even during the year 1939, the plaintiff need not prove his title to the suit property and can seek for a mandatory injunction directing the respondents/defendants for removal of the construction put up by them in the suit property. 9. Per contra, Mr.N.Vijayaraghavan, learned Advocate General, appearing for the respondents contended that when the defendants have questioned the title of the plaintiff in their written statement, the plaintiff did not seek for the relief of declaration of their tile to the suit property and for recovery of possession from the defendants and on the contrary, the suit was filed for a bare injunction, which cannot be maintained. His further contention is that the petition in I.A.No.118/2010 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure praying .....

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..... of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction". He would further contend that the petition filed under Order VI Rule 17 of the Code of Civil Procedure cannot be maintained. 11. At the outset it may be observed that the revision petitioner/ plaintiff had filed the suit in O.S.No.852/1998 for a bare injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. It is also relevant to note that in the petition in I.A.No.118 of 2010, the revision petitioner had alleged that at the time of disposal of CRP No.3027 of 1999 by this court on 25.11.1999, the respondents submitted before this court that they had completed construction in the suit property. 12. In the decision in Bodi Reddy Vs. Appu Gounder reported in 1970(2) MLJ 577, Honourable Justice M.M.Ismail, as he then was has observed thus, "A prayer for a mandatory injunction may be made by a plaintiff in different situations. Broadly, it may be in two categories of cases. One is, where the defendant has tre .....

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..... y the defendant putting up a wall on his own land. Equally it may be that the plaintiff's right to support is sought to be removed or taken away by some act on the part of the defendant or again some other right of easement which the plaitniff has is sought to be interfered with by the Act on the part of the defendant. In all these cases, the primary relief which the plaintiff can have in a suit instituted by him is the mandatory injunction directing the defendant to remove the construction put up by him, and the prayer for mandatory injunction in such a suit is neither ancillary nor incidental, but that is the only manner in which the injury suffered by the plaintiff can be remedied or rectified. Such suits can be very properly described as suits for injunction as distinguished from the first category, namely, suits in ejectment or for possession based on trespass or encroachment on the part of thte defendant. Where the primary relief claimed is a mandatory injunction and the injunction having been originally an equitable relief and subsequently the grant thereof being in the discretion of the court, it is certainly open to the court to see whether the plaintiff could be adequ .....

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..... f the suit property. On the other hand, the respondents/defendants have put up construction over the suit property and they have also alleged in their written statement that as per the proceedings of the Board of Revenue in G.O.Ms.No.2953, Public Works Department dated 30.09.1947, the suit property was transferred to the Police Department and thus, they have exclusive right over the suit property. In such circumstances, seeking for amendment of the plaint for inclusion of the prayer of mandatory injunction for demolition of the construction is not appropriate and inview of the reasons expressed by me in the preceedings paragraphs, such a relief sought for by the revision petitioner/plaintiff is also barred by limitation. In the circumstances, appointment of an advocate commissioner is not also necessary to resolve the dispute between the parties in the instant case. Therefore, both the revision petitions are liable to be dismissed. 17. In the result, (1) The civil revision petitions in CRP No.775/2011 and 776/2011 are dismissed. No costs. The connected miscellaneous petitions are closed. (ii) The orders dated 09.11.2010 passed in I.A.No.72/2010 and I.A.No.118 of 2010 in O.S.No.852 .....

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