BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.(MD)No.546 of 2000 Subbiah .. Defendant/Respondent/ Appellant Vs. R.Vellaichamy Naicker (Died.) 1.Muthulakshimi 2.Nagarajan 3.Rameswari .. Plaintiffs/Appellants /Respondents PRAYER This Second Appeal filed under Section 100 of CPC, against the judgment and decree dated 17.09.1999 made in A.S.No.105/1996 on the file of Subordinate Judge's Court, Tenkasi, reversing the decree and judgment dated 23.08.1996 made in O.S.No.47/94 on the file of the Court of District Munsif, Shencottach, as far as the claim for permanent injunction. !For Appellant ... Mr.K.Periyasamy, Advocate ^For Respondents ... Mr.K.Rajkumar, Advocate :JUDGMENT
This Second Appeal has been directed against the decree and judgment
in A.S.No.105 of 1996, on the file of Court of the Subordinate Judge, Tenkasi,
which had arisen out of a decree and judgment in O.S.No.47/1994 on the file of
the Court of District Munsif, Shencotta. The suit was filed by the plaintiff
for declaration of his title in respect of the plaint schedule No.2, which is
comprised in S.No.1 and also for mandatory injunction to remove the cement pipe
laid by the defendant near his eastern wall and also to remove the door and
windows placed on his eastern wall. Both the Courts below have concurrently
held that the plaintiff is not entitled to the relief of mandatory injunction.
The trial Court has dismissed the suit in entirety. But on appeal, the first
appellate Court, had granted the declaratory relief, as prayed for by the
plaintiff in the plaint, which necessitated the defendant to approach this Court
by way of this Second Appeal.
2.The plaint averments in brief sans irrelevant particulars are as
follows:-
Plaint schedule No.1 property was allotted to the plaintiff’s father
in the family partition. The defendant had constructed his house on the
property situate on the west of the plaint schedule No.1 property. The
defendant had also constructed his eastern wall of his house. Beyond his
eastern wall, the defendant is not having any land. When the defendant attempted
to drain his rain water on the lane east of his eastern wall of his house, there
arose a dispute between the plaintiff’s father and the defendant. There was a
‘panchayat’ took place between them. Even in the Panchayat it was decided that
beyond the eastern wall of the defendant’s house, he is not entitled to any
land. The defendant has dug a pit about 1 foot depth and has laid the drainage
pipe alone in the eastern wall of his house, after getting permission from the
plaintiff and it was also agreed in the ‘panchayat’ by the defendant that they
will reduce the cement slab window on the eastern side to a required extent.
The ‘panchayat’ between the plaintiff’s father and defendant was entered into an
agreement on 30.09.1983 and it was reduced into writing and both the parties
have signed in the said ‘panchayat nama’. The plaintiff has constructed his
house in his land. The plaintiff claimed that he is entitled to about 1 foot
beyond his eastern wall of his house and has objected the defendant from
constructing his western wall in the suit property. The defendant, as per his
gift deed, dated 11.9.1979, is entitled to only 15 feet on the east-west
direction. The eastern wall of the defendant is situated within 15 feet on the
east-west measurement on the south. The plaintiff is entitled to east-west 27-
1/2 feet. But the defendant is not entitled to claim any right in respect of
the property, in which he has laid the pipe line, on the east of his western
wall of his house. Since, the defendant has let in waste water in the property
east of his house, the plaintiff has cancelled the license granted in favour of
the defendant. Hence, the plaintiff has filed the suit for mandatory injunction
and also for declaration of his title in respect of the plaint schedule No.2
property. The plaintiff has issued a suit notice dated 28.04.1988 through his
lawyer. After receipt of the said notice, the defendant has sent a false reply,
dated 04.05.1998. The defendant cannot claim more than 15 feet east-west
allotted to his father under the gift deed, dated 11.09.1979. The plaintiff’s
uncle was one of the panchayators, who signed in the ‘panchayat nama’ mentioned
above. The plaintiff’s father had executed a mortgage deed in respect of his
property on 13.12.1965, in favour of one Mohammed Mythin Sahib. Even in that
mortgage deed, the east-west measurement for the plaintiff’s property was shown
as 10 carpenter cubic feet. In the plaint plan, the plaintiff has earmarked the
portion allotted to the defendant in their family partition dated 30.06.1965.
So, beyond his east-west wall, the defendant is not entitled to 2-5/8 feet,
which is scheduled to the plaint, as plaint item No.2, which forms part of the
plaint schedule item No.1. Hence, the suit for declaration of title and for
mandatory injunction.
3.The defendant in his written statement would contend that the
plaint schedule item No.2 does not belong to the plaintiff. The plaint schedule
item No.2 will not form part of the plaint schedule item No.1, beyond the
eastern wall of the defendant’s house. The defendant’s uncle Marimuthu Naicker
was entitled to 2-5/8 feet lane. In the said lane, the plaintiff is not
entitled to any right or title. But, the plaintiff in his plaint has also
included this 2-5/8 feet on the west of his house clandestinely. About 2-5/8
feet lane on the west of plaint schedule No.2 was originally belonged to one
Arunachala Naicker, who had executed a sale deed in favour of Sankaralinga
Naicker on 03.01.1940, for the above said property for whom Arunachala Naicker
had purchased the property again on 08.01.1945, under a sale deed. Thereafter,
the sons of Arunachala Naicker viz., Subbiah Naicker, Laxmana Naicker and
Marimuthu Naicker along with their father Arunachala Naicker, had partitioned
the said property. In the said partition about 2-5/8 feet was left to be
enjoyed as a lane by Marimuthu Naicker and Laxmana Naicker. The plaintiff is
entitled to east of the above said 2-5/8 feet lane. The defendant had
constructed his house in the year 1980 in the plot got under the gift deed,
dated 11.05.1979, from Lexmana Nadar. At the time of constructing his house,
the defendant had placed his windows on his eastern wall and also his sunshade,
which is projected about 1-1/2 feet east of his eastern wall. In the plaint
second schedule property, the defendant’s door is situated protruding about 1
foot in the lane. The defendants are letting out the waste water in the plaint
schedule property and also drainage water, whereas, the plaintiff is letting out
his drainage water through a pipe laid in the plaint schedule property. There
was no ‘panchayat’ took place, as alleged in the plaint on 30.09.1993, between
the plaintiff’s father and the defendant and there was no ‘panchayat nama’
entered into between the plaintiff’s father and the defendant, as alleged in the
plaint. The alleged document dated 30.09.1993 is a concocted one. Neither
the defendant’s father nor his uncle or the plaintiff has singed in the said
document. The plaintiff is not entitled to 27-1/2 feet east-west on the south
of his property. The drainage pipe on the east of the defendant’s eastern wall
was not laid with the permission of the plaintiff, as alleged in the plaint.
There is a mistake crept in the measurement for the eastern boundaries of the
plaintiff’s property, in the gift deed as well as in the partition deed, dated
30.06.1965. The second schedule property was not enjoyed in common by the
plaintiff and the defendant. The plaintiff is not entitled to any declaration
in respect of his plaint schedule item No.2 and he has also not entitled to get
an order of mandatory injunction. Hence, the suit is liable to be dismissed.
4.On the above pleadings, the learned trial Judge has framed five
issues for trial. The plaintiff has examined himself as P.W.1 besides examining
another witness as P.W.2 and also exhibited Exs.A1 to A6. On the side of the
defendant, the defendant was examined as D.W.1 and Exs.B1 to B4 were marked. A
Commissioner was appointed by the learned trial Judge to note down the physical
features of the plaint schedule property and he has filed Exs.C1 & C3, reports,
and Ex.C2 & C4, plans.
5.On the basis of the available evidence both oral and documentary,
the learned trial Judge finding no reasons to grand a decree in favour of the
plaintiff, has dismissed the suit. Aggrieved by the findings of the learned
trial Judge, the plaintiff has preferred an appeal in A.S.No.105/1996, before
the learned Subordinate Judge, Tenkasi, who had confirmed the decree in respect
of dismissal of the relief regarding mandatory injunction but allowed the appeal
in part granting the relief of declaration asked for in the plaint, which
necessitated the defendant to approach this Court by way of this Second Appeal.
6.The following substantial questions of law are involved for
determination in this Second Appeal:-
“1. Whether the Courts below are correct in law in accepting the
boundary recitals in documents Ex.A1 and A2, when those documents are not inter
parties and inadmissible in evidence under Sections 11, 13(2), 32(3) and 32(7)
of the Evidence Act, especially when the executant of the document is not
examined? and
2.Whether the lower Court is right in granting the discretionary
power of permanent injunction when the plaintiff did not approach the Court with
clear hands?”
7.Substantial Question of Law Nos.1 & 2:-
(a) Heard the learned counsel appearing for the appellant as well
as the learned counsel appearing for the respondents and considered their
respective submissions.
(b) The learned counsel appearing for the appellant would contend
that as per Ex.A3, a mortgage deed, executed by the plaintiff’s father on
13.12.1965 the east-west measurement for the plaint schedule item No.1 was given
as 10 carpenter cubic feet, which comes to 27-1/2 feet. But, in the subsequent
partition entered into between the family of the plaintiff under Ex.A6, dated
05.09.1996, the east-west measurement for the plaint schedule property on the
south wrongly been mentioned as “11” carpenter cubic feet instead of “10”
carpenter cubic feet. Hence, the learned counsel appearing for the appellant
would contend that even though the plaintiff has scheduled item No.1 with an
east-west measurement of 10 carpenter cubic feet, he is not entitled to the
declaration and injunction as prayed for, because, within his property i.e.,
plaint schedule item No.1 he has already constructed his house and the western
wall of the plaintiff’s house comes within the measurement given in plaint item
No.1 schedule property and that the plaint schedule 2 property, even though
under the plaint is said to be within the plaint schedule 1 property, it does
not come within the plaint schedule one property. Even though a commissioner
was appointed by the trial Court, the learned Advocate Commissioner has not
identified the plaint schedule properties with the help of a taluk Surveyor.
When the appeal was taken up by this Court, this Court felt that unless the
plaint schedule properties are identified with a help of a taluk surveyor, a
decision cannot be rendered. As per the orders of this Court dated 22.10.2008,
the trial Court was directed to reissue the warrant to the same Advocate
Commissioner or to appoint another Advocate Commissioner to identify the plaint
schedule Item No.1 property as well as the plaint schedule Item No.2 property in
accordance with the measurements given for the property for the first schedule
property to Ex.A6 and to submit a report. Accordingly, the Commissioner has
filed Ex.C 5 report and Ex.C6 plan. It is pertinent to note at this juncture
that in Ex.A6, east-west measurement for the plaint schedule item No.1 property
has wrongly been stated as 11 carpenter cubic feet instead of 10 carpenter cubic
feet, because, even in Ex.A3 mortgage deed, executed by the plaintiff’s father
in the year 1965, the east-west measurement for the plaint schedule item No.1
property was mentioned as only 10 carpenter cubic feet. Under such
circumstances, on the basis of Ex.A6, the plaintiff cannot claim 11 carpenter
cubic feet as east-west measurement on the south of his property. In Ex.C6,
Plan, the Commissioner has given east-west measurement on the south of the
plaintiff’s property as 27 feet between the points “D E” and the learned
Advocate Commissioner has also noted the eastern boundary for the plaintiff’s
property as C-1, but he would state in his report Ex.C5 that the portion “C1 D”
measuring 1 foot 9 inches has been given by the plaintiff for the formation of
the road, which is situated on the east of his property. Under such
circumstances, the plaintiff cannot claim that he is entitled to 27-1/2 feet
towards west from the point “D” i.e., 6 inches beyond the point “A E” in the
land, which is situated west of his western wall “A E” of his building. Even
though 1 foot 9 inches was given by the plaintiff for the formation of the road,
he cannot claim 27-1/2 feet on the south from the point “D” towards west. It
is not the case of the plaintiff that the portion marked as “C-1 D” with an
extent of 1 foot 9 inches belongs to the Government or 3rd parties. This 1 foot
9 inches portion was given by the plaintiff for the formation of the road, which
is situated on the east of the plaintiff’s house. Now, the learned counsel for
the respondent would state that there is no admission by the plaintiff as to the
effect that this 1 foot 9 inches between the point “D C1” in Ex.C6 plan was
given for laying the road on the east of his house. But Ex.C6, plan, was
prepared by the learned Advocate Commissioner, with a help of a Surveyor, who
had fixed the eastern boundary for the plaintiff’s property as “E C1″ measuring
28 feet 9 inches. The learned counsel for the respondent at this juncture would
point out that even as per Ex.A6 measurement, the learned Advocate Commissioner
has fixed the eastern boundary for the plaintiff’s house property as ‘C1” on the
east. Even then as per Ex.A6, the plaintiff’s east-west measurement for the
property is given as 11 carpenter cubic feet to which he is not entitled to as
per Ex.A3. The measurement given in Ex.A6 will not bind the appellant herein
because Ex.A6 is the partition deed inter se between the members of the
plaintiff’s family. As per Ex.A3, the earliest document of the year 1965, the
plaintiff is entitled to only 10 carpenter cubic feet east-west on the southern
side. So, as per Ex.A3, on the southern side east-west, the plaintiff is
entitled to only 27-1/2 feet (10 carpenter cubic feet). But, the plaintiff, as
per Ex.C6 plan, was in possession of 28 feet 9 inches out of which he had given
1 foot 9 inches for the formation of the road. At any event, the plaintiff
cannot claim any space beyond his western wall of his house, which is marked as
“A E” to Ex.C6 plan, by the learned Advocate Commissioner. So, the plaintiff,
on the basis of the measurement given in the documents of the defendant, cannot
claim declaration for the plaint schedule item No.2, which is admittedly more
than the extent mentioned under Ex.A3 document. As rightly held by the trial
court, the plaintiff is not entitled either for declaration of title or for
permanent injunction or for mandatory injunction. Substantial Question of Law
Nos.1 & 2 are answered accordingly.
8. In fine, the appeal is allowed and the decree and judgment of the
learned first appellate Judge in A.S.No.105/1996, on the file of the Court of
Subordinate Judge, Tenkasi, is set aside and the suit in O.S.No.47 of 1994 is
dismissed.
9.At this juncture, it is represented that the land which is
situated on the west of the plaintiff’s western wall of his house marked as “A E
” by the learned Advocate Commissioner in Ex.C6, Plan, is being enjoyed in
common, by both the plaintiff and respondent. The measurement for the said
common lane, which is earmarked as “A1 A E E1” by the learned Advocate
Commissioner is one foot and that the said lane is being enjoyed in common. If
it is so, the parties are directed to enjoy the said lane in common in future
too. Ex.C6, Plan, shall form part of the decree. No costs.
Mpk
To,
1. The Subordinate Judge,
Tenkasi.
2. The District Munsif,
Shencottach.