BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/02/2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.257 of 2010 and M.P(MD)No.1 of 2010 A.Yagappan ... Appellant vs A.Arockiasamy alias Thambi Arockiam ... Respondent PRAYER Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgment and decree made in A.S.No.106 of 2004, dated 28.04.2006, on the file of the Principal Sub-Court, Dindigul, confirming the judgment and decree made in O.S.No.542 of 2002, dated 22.04.2003, on the file of the II Additional District Munsif Court, Dindigul. !For Appellant ... Mr.D.Selvaraj ^For Respondent ... Mr.P.Athimoolapandian for Mr.N.Damodaran :JUDGMENT
The defendant in the original suit is the appellant in the second appeal.
O.S.No.542 of 2002 was filed by the respondent herein against the appellant
herein for the relief of permanent injunction not to interfere with the
respondent’s/plaintiff’s enjoyment of the suit property shown as ‘ABCD’ in the
plaint plan.
2. A small stretch of land measuring North-South 5 feet and East-West 42
feet lying on the North of the plaintiff’s residential house comprised in old
S.No.520/1 (new S.No.895/34) is shown as the suit property. The northern
boundary of the suit property is shown to be the open space belonging to the
appellant/ defendant having a width of 1 foot and east-west length of 42 feet,
beyond the north of which the house of the appellant/defendant has been
constructed.
3. The case of the respondent/plaintiff is that he had left a space on
the North of his house measuring North-South width of 5 feet and East-West
length of 42 feet for the convenient enjoyment of his house and the
appellant/defendant, instead of leaving sufficient space on the south of his
house, left a space to a width of one foot alone; that when the appellant/
defendant put up a doorway for his house on the South, the respondent/plaintiff
raised an objection to the same stating that the one foot space left by him
would not be sufficient to have an entrance on the Southern side of his house,
whereupon the appellant/defendant informed that he would close the southern
entrance and provide entrance on the east; that pursuant to the same, the
respondent/plaintiff put up a fence on the northern border of the open space
left by him; that the appellant/defendant tried to remove the fence made up of
palmirah leaf stumps (Panaimattaigal) and attempted to use the space left by the
respondent/plaintiff as an access for reaching his house and that hence, the
respondent/plaintiff was constrained to file the suit for the above said
relief.
4. The appellant herein/defendant filed a written statement denying the
plaint averments and contending that the respondent’s/plaintiff’s property was
comprised in S.No.895/34 whereas the S.No.895/33 belonged to the
appellant/defendant; that the appellant /defendant got his property measured and
its boundaries fixed by the revenue authorities; that the appellant/ defendant
did not make any attempt to encroach upon the property of the
respondent/plaintiff as contended in the plaint; that on the other hand, the
respondent/plaintiff was making attempts to encroach upon the
appellant’s/defendant’s land which was successfully prevented and that hence,
the suit filed by the respondent/plaintiff for injunction should be dismissed.
5. The trial court framed necessary issues and tried the suit. In the
trial, four witnesses were examined as P.Ws 1 to 4 and ExS.A1 to A4 were marked
on the side of the respondent herein/plaintiff, Whereas, only one witness was
examined as D.W.1 and three documents were marked as Ex.B1 to Ex.B3 on the side
of the appellant herein/defendant. One more document relating to the survey
measurements taken for the property of the appellant/defendant, which was
summoned from the Tahsildar was marked as Ex.X1.
6. The learned trial Judge, on a consideration of evidence, decreed the
suit and granted the relief of permanent injunction as prayed for without costs.
The judgment and decree of the trial court, dated 22.04.2003 were confirmed by
the lower appellate court by its judgement and decree dated 28.04.2006,
pronounced in A.S.No.106 of 2004, an appeal preferred by the
appellant/defendant. As against the concurrent judgments of the courts below,
the present second appeal has been filed.
7. A Second Appeal against the decree of the appellate court shall lie to
the High Court under Section 100 of Civil Procedure Code only on a substantial
question of law. Unless the appellant is able to show that the Second Appeal
involves a substantial question of law, the second appeal shall be dismissed at
the stage of admission itself without even issuing notice to the lower appellate
court or to the respondent. Question of fact cannot be agitated in the Second
Appeal, unless a question of fact gets elevated to the position of a substantial
question of law. In this case, the suit has been decreed and the defence plea of
the appellant/defendant has been rejected based on the findings of fact recorded
on appreciation of evidence. None of the findings of fact recorded by the trial
court and confirmed by the lower appellate court on reappreciation of evidence,
is shown to be perverse.
8. The property of the respondent/plaintiff is with the measurement of
North-South 18 feet and East-West 44 feet. The same is comprised in S.No.895/34
in Nochi Odaipatti, Kavanoothu Group, Dindigul Taluk. It is also an admitted
case that North of the respondent’s/ plaintiff’s property lies the property
belonging to the appellant/defendant and the same also does have the very same
measurements, namely North-South 18 feet and East-West 42 feet. The property of
the respondent/plaintiff consists of the area over which their ancestral house
was situated and the area that was purchased subsequently from one Rasu Servai
S/o. Daniel Servai. The area over which the ancestral house of
respondent/plaintiff was situated forms the Western part of the entire property
of the respondent/ plaintiff and it measures 18 feet North South and 13 feet
East-West. The property that was lying on the East of the ancestral house of the
respondent/plaintiff measures North-South 18 feet and East-West 29 feet and the
same was purchased by the respondent/plaintiff under Ex.A.1 – sale deed. Thus
the respondent/ plaintiff became entitled to the total area with a measurement
of North-South 18 feet and East-West 42 feet. After the purchase of the Eastern
part of his property, the respondent/ plaintiff demolished the old house and put
up a new house. Similarly on the Northern part of the plaintiff’s property
belonging to the appellant/ defendant which also measures North-South 18 feet
and East-West 42 feet, the appellant/defendant put up a construction. All these
facts are admitted and are not disputed.
9. The contention of the respondent/plaintiff is that while putting up the
construction in his property some 25 years back, he left a space of one foot on
the West 2 feet on the South and 5 feet on the North for his convenient
enjoyment of the house property. It is also the contention of the
respondent/plaintiff that the 5 feet space left on the North of his house was
meant for his own use and on the Northern border of the said 5 feet space, which
is also the dividing line of the property of the respondent/plaintiff and the
appellant/defendant, he had put up a fence using palmyrah leaf stems.
10. It is the further contention of the respondent/plaintiff that while
putting up construction in his property, the appellant/defendant left only a
small space measuring 1 foot on the South of his house and he wanted to open an
entrance on the Southern wall of his house; that the same was objected to by the
respondent/plaintiff; that the appellant/defendant informed the
respondent/plaintiff that he would have an opening on the Eastern side of his
house which faces the street; that subsequently the appellant/defendant tried to
remove the fence and use the space left by the respondent/plaintiff on the North
of his house claiming the same to be the common lane and that hence, the
respondent/plaintiff was constrained to file the suit.
11. The space measuring East-West 42 feet North-South 5 feet, which
situates on the North of the respondent’s/plaintiff’s house, is shown to be the
suit property. The same is shown as ABCD and red washed in the plan attached to
the plaint. On the North of the suit property, there is a gap of one foot North-
South which alone is said to be the space left by the appellant/defendant in his
property for his convenience. The crux of the contention of the
appellant/defendant is that the suit property come within S.No.895/33 belonging
to the appellant/defendant and it does not come within S.No.895/34 belonging to
the respondent/plaintiff. However, all the witnesses examined on the side of the
respondent/plaintiff have categorically stated that out of the total extent
measuring 36 feet North-South and 42 feet East-West, Northern half belonged to
the appellant/defendant and the Southern half belonged to the
respondent/plaintiff and that when dispute arose for the space between the house
of the appellant/defendant and that of the respondent/plaintiff, a panchayat was
held and pursuant to the decision taken by the panchayat, the total extent of
East-West 42 feet and North-South 36 feet was equally divided and the boundary
between the defendant’s property and the plaintiff’s property was fixed. Clear
evidence has been adduced to the effect that the defendant having left
approximately 1. feet to 2 feet space alone tried to have entrance on the
Southern wall of his house; that when the attempt of the appellant/defendant was
resisted by the respondent/plaintiff, the appellant/defendant caused a panchayat
to be convened and informed the panchayatdhars that he would have the opening of
his house on the East; that despite having given such undertaking he continued
to make attempts to trespass into the suit property and that hence, the
respondent/plaintiff had to file the suit.
12. As against the said clear pleading and evidence on the side of the
respondent/plaintiff, the appellant/defendant has not chosen to enter the
witness box and depose in support of his case and to show that the suit property
either belonged to the appellant/ defendant or is a common property belonging to
both. On the other hand, an official from the revenue department has been
examined as the sole witness on the side of the appellant/defendant and through
him the file relating to survey measurement of the appellant’s/ defendant’s
property was marked as Ex.X.1. The said evidence, no doubt shows that on the
application of the appellant/defendant the property of the appellant/ defendant
was measured and boundary stones for his property were planted. But, both the
Courts, after meticulously examining all the documents and the evidence of
D.W.1, came to the conclusion that the said document is of no help to the
appellant/defendant to show that the suit property does not belong to the
respondent/plaintiff absolutely.
13. The Courts below have pointed out the fact that in Ex.X1 measurements
have not been noted and that the survey was conducted only in respect of
S.No.895/33 belonging to the appellant/defendant and not in respect of
S.No.895/34 belonging to the respondent/plaintiff. There is also lack of
evidence to show where lies the boundary stones fixed by the revenue
authorities, who surveyed the land. When clear and cogent evidence was adduced
on the side of the respondent/ plaintiff that on the North of his house he had
left a space of 5 feet for his use, which is alone shown as the suit property,
and that the mid line between the properties of the respondent/plaintiff and the
appellant/defendant is on the Northern border of the 5 feet space shown to be
the suit property, the defendant has not let in reliable evidence to show that
his property includes any portion of the suit property.
14. As pointed out supra, admittedly the North-South measurement of the
respondent’s/plaintiff’s property is 18 feet and the North-South measurement of
the appellant’s/defendant’s property, which lies on the North of the plaintiff’s
property is also 18 feet. The respondent/plaintiff has adduced clear evidence to
show the North-South measurement of his property to be 18 feet and it extends up
to the Northern border of the suit property. There is no clear and contra
evidence on the side of the defendant as to what is the North-South measurement
of the defendant’s property, which is available on the North of the suit
property. All these aspects were properly considered by the Courts below and
upon such consideration, the Courts below have arrived at a correct and
concurrent finding that the suit property exclusively belongs to the respondent/
plaintiff and that the appellant/defendant besides staking claim to it, also
made an attempt to encroach upon the same. Based on the said findings of fact,
the Courts below have held that the respondent/ plaintiff is entitled to the
relief of permanent injunction as sought for by the respondent/ plaintiff. There
is no defect or infirmity, much less perversity in the findings of the Courts
below. As pointed out supra, the Second Appeal is sought to be filed on a
question of fact, which is not even shown to be defective or infirm, much less
perverse and not on a substantial question of law. No substantial question of
law is involved in this Second Appeal. Hence, this Second Appeal deserves to be
dismissed at the stage of admission itself.
15. Accordingly, the Second Appeal is dismissed. Consequently, connected
M.P.(MD) No. 1 of 2010 is also dismissed. However, there shall be no order as to
costs as the Second Appeal is dismissed at the admission stage itself.
vsn/sj
To
1. The Principal Subordinate Judge,
Dindigul.
2. The II Additional District Munsif,
Dindigul.