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Ladooram Sowcar and anr. Vs. Nidamarti Jala Durgaprasadarayudu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad463
AppellantLadooram Sowcar and anr.
RespondentNidamarti Jala Durgaprasadarayudu
Cases ReferredPazundaung Bazaar Co. Ltd. v. Ellerman
Excerpt:
- - jala durgaprasadarayudu, the finding about the ownership of the road in favour of the sowcars is questioned as well as the disallowance of the claim to recover possession of the small extent of 3 1/3 square yards encroached upon by the sowcars. the sowear's house has been occupied for very many years and there is a good deal of evidence to show that the road in question has been used only by people who occupied the house and as part of the sowcar's property. as these appeals have failed in part and succeeded in part, we think, in the circumstances of the case, the proper order to pass is that the parties should bear their own costs throughout, that is to say, in all the courts including this court and in these appeals......mr. jala durgaprasadarayudu's property; and (3) that there was also an encroachment of about 3 1/3 square yards by the sowcars by building an extension of the kitchen in their property. it was found by both the courts below that the road in question was the exclusive property of the sowcars and that finding, in our opinion, was not open to question in second appeal and there has been no interference with that finding in second appeal. as regards the encroachment by extending the kitchen also there has been no interference in second appeal. it is as regards the second item which relates to the wall and the strip of site adjoining it that wadsworth j. modified the decree of the lower appellate court and directed the restoration of the first court's decree relating thereto. the point.....
Judgment:

Pandrang Row, J.

1. These appeals arise out of two second appeals, namely Nos. 894 and 895 of 1931, which in their turn arise out of two connected suits of 1923 on the file of the District Munsif's Court of Vizagapatam. One of them was instituted by the partners of Baughmul Sowcar against Mr. Jala Durgaprasadarayudu, a lawyer of Rajahmundry, and the other suit was by the lawyer as the plaintiff and the Sowcars as the defendants. The suits arose out of a dispute regarding the boundary between the properties belonging to the two parties on the Beach Road at Vizagapatam. The dispute was originally taken to the notice of the Survey Officer and after a decision by the survey authorities these suits were filed, both parties being dissatisfied therewith.

2. Speaking broadly, the dispute relates to three items: (l) The road which lies between the two properties which was claimed by Mr. Jala Durgaprasadarayudu as a common or joint road, but which according to the Sowcars was their own exclusive property; (2) that the wall built between the properties by the Sowcars and a small strip of land varying in width from 1 1/2 to 2 1/4 feet by the side of it constitute an encroachment by the Sowcars on Mr. Jala Durgaprasadarayudu's property; and (3) that there was also an encroachment of about 3 1/3 square yards by the Sowcars by building an extension of the kitchen in their property. It was found by both the Courts below that the road in question was the exclusive property of the Sowcars and that finding, in our opinion, was not open to question in second appeal and there has been no interference with that finding in second appeal. As regards the encroachment by extending the kitchen also there has been no interference in second appeal. It is as regards the second item which relates to the wall and the strip of site adjoining it that Wadsworth J. modified the decree of the lower Appellate Court and directed the restoration of the first Court's decree relating thereto. The point involved was not whether it was an encroachment or not, because the fact of the encroachment was established beyond doubt to the satisfaction, of both the Courts below. But Wadsworth J. thought that the lower Appellate Court was not justified in modifying the decree of the first Court for delivery of possession of the portion encroached upon by substituting a decree for money damages instead. It is contended before us in Letters. Patent Appeal No. 101 of 1935 that this, interference in second appeal was not justified or proper. In the other Letters Patent appeals by Mr. Jala Durgaprasadarayudu, the finding about the ownership of the road in favour of the Sowcars is questioned as well as the disallowance of the claim to recover possession of the small extent of 3 1/3 square yards encroached upon by the Sowcars.

3. The facts of the case need not be narrated' further for the purpose of deciding these Letters Patent appeals. Reference has been, made to a number of cases and in particular to Pazundaung Bazaar Co. Ltd. v. Ellerman's Arracan Rice and Trading Co. Ltd., (1934) 21 A.I.R. Bang 144. This however is a case in which we are not concerned with an invasion of one man's rights of easement by another, but with an actual encroachment or trespass by one on the property of another. In the latter class of cases, there is in our opinion, no scope for the contention that money damages may be given in certain circumstances. The decisions which deal with the question of awarding damages as the more appropriate remedy instead of an injunction do not apply to the present case where the encroachment has been established, and there is no other remedy possible except that of delivery of possession. We are therefore of opinion that so far as the wall and the strip of site adjoining it are concerned, the proper decree to be passed in the suit is the decree that was passed by the first Court and that portion of the decree of the first Court must therefore be restored; it would thus follow that so far as this item of encroachment is concerned, the decree of Wadsworth J. is right though not for the reasons given by him. As regards the kitchen, no doubt the same conclusion ought to follow but it is found that in lieu of 3 1/3 square yards which has been encroached upon, Mr. Jala Durgapmsadarayudu has got nearly 6 square yards belonging to the Sowcars in the very same neighbourhood and remains in possession thereof. He cannot, in our opinion, be allowed to have these 3 1/3 square yards while keeping in his possession the 6 square yards, which do not belong to him. In these circumstances we do not propose to interfere in appeal with the decree of the Courts below so far as this item is concerned.

4. As regards the road, the concurrent findings of fact by the two Courts in the mofussil really conclude the matter and we see no reason to suppose that those findings arc not supported by the evidence. The sowear's house has been occupied for very many years and there is a good deal of evidence to show that the road in question has been used only by people who occupied the house and as part of the Sowcar's property. There is no case made out for interference with the findings of fact so far as this road is concerned. The question of costs has been raised in all these appeals. The order passed by the first Court was that all parties must bear their own costs and this was interfered with by the lower Appellate Court which substituted money damages instead of delivery of possession of the encroached site after removing the wall thereon. Now that that modification of the decree has been found to be wrong, there cannot be any justification for any change in the first Court's order relating to costs. As these appeals have failed in part and succeeded in part, we think, in the circumstances of the case, the proper order to pass is that the parties should bear their own costs throughout, that is to say, in all the Courts including this Court and in these appeals.


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