BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/11/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.251 of 1997 and C.M.P.(MD).No.2856 of 1997 D.Nagendran ... Appellant Vs. 1.Virudhunagar Hindu Nadar Senthilkumar Nadar College Paripalana Sabai, through its Secretary Paramanandam, Virudhunagar. 2.M.Patturajan ... Respondents PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Additional District Judge, Tuticorin, passed in A.S.No.33 of 1996, dated 28.08.1996, reversing the judgment and decree of the learned Additional District Munsif, Tuticorin passed in O.S.No.59 of 1988 dated 13.12.1991. !For Appellant ... Mr.K.Srinivasan ^For Respondents ... Mr.M.A.Abdulwahab :JUDGMENT
The plaintiff in the original suit is the appellant in the second
appeal. O.S.No.59 of 1988 filed by the appellant herein on the file of the
learned Additional District Munsif, Tuticorin was decreed by a judgment and
decree of the said trial Court dated 13.12.1991. On appeal, the said judgment
and decree was set aside and reversed by the learned lower appellate Judge,
namely the learned Additional District Judge, Tuticorin, by its judgment in
A.S.No.33 of 1996 on the file of the said Court dated 28.08.1996. Hence, the
appellant/plaintiff has brought forth this second appeal.
2. The original suit in O.S.No.59 of 1988 had been filed on the file
of the learned Additional District Munsif, Tuticorin, by the appellant herein
against the respondents herein for permanent injunction in respect of the suit
third schedule property, for a mandatory injunction directing removal of the
rafters put up on the third schedule property, for a mandatory injunction
directing removal of the superstructures put up by the respondents over the suit
second schedule property and for a permanent injunction in respect of the suit
second schedule property.
3. The averments found in the plaint, in brief, are as follows:
(i) The appellant/plaintiff purchased the property described as
plaint first schedule property marked as ‘ABCD’ in Ex.A.4-plaint plan under two
sale deeds dated 28.11.1979 and 13.12.1979, certified copies of which have been
marked as Exs.A.1 and A.2 respectively. The first respondent/first defendant is
the owner of the adjoining land on the east. After purchase, the
appellant/plaintiff constructed the compound wall on the east of the first
schedule property. While so, the appellant/plaintiff entered into an agreement
with the first respondent/first defendant, and as per the agreement, each one
should leave a space of 3/4 feet for common use. The appellant/plaintiff put up
a compound wall on the eastern border of his property leaving space having a
width of 3/4 feet on the east of the compound wall. The said compound wall is
shown as “A1G1′ and is described as the plaint third schedule property, whereas
3/4 feet space left by the plaintiff on the east of the compound wall marked in
the plaint plan as ‘AA1G1G’ is described as the plaint second schedule property.
When the appellant/plaintiff wanted to construct a compound wall in the year
1980, he approached the then Secretary of the first respondent/first defendant
and suggested for constructing a common compound wall occupying equal space on
either side of the dividing line, but the latter expressed his idea against
construction of a common wall. On the other hand, he asked the
appellant/plaintiff to construct a separate wall for himself leaving a space of
3/4 feet and promised that the first respondent/first defendant would also leave
an equal space on their side. Thus the appellant/plaintiff was constrained to
put up the compound wall described as plaint third schedule property and marked
as ‘A1G1’ in Ex.A.4-plaint plan, leaving a space of 3/4 feet on the east of the
compound wall. The vacant space left by the appellant on the east of the
compound wall marked in the plaint plan as ‘AA1G1G’ is the plaint second
schedule property. The plaint first schedule property is larger property of
which the second and third schedule properties form part and parcel.
(ii) While so, the second respondent/second defendant who got the
eastern property from the first respondent/first defendant on lease for running
a vegetable market, met the appellant/plaintiff on 28.01.1988 and sought his
permission to fix rafters on the ‘A1G1’ wall (third schedule property), to put
up sheds on the east of the said wall. Despite the fact that the appellant
refused to grant such permission, the second respondent, with the active
connivance of the first respondent, proclaimed that they would fix rafters on
the above said wall to provide support for the roof of the structures to be
constructed on the east of the said wall by trespassing into the second schedule
vacant space. In the said circumstances, the suit was filed originally for
permanent injunction not to cause disturbance to the peaceful possession and
enjoyment of the second and third schedule properties. During the pendency of
the suit, the second respondent put up a shed on the east of the plaintiff’s
‘A1G1’ wall. Hence, the plaint was amended for mandatory injunction for the
removal of the encroachment made on plaint second schedule property and for the
removal of rafter placed on the plaintiff’s wall.
4. The second respondent/second defendant did not contest the suit
and remained exparte. The first respondent/first defendant alone resisted the
suit by filing written statement. Besides denying the plaint allegations
regarding the oral agreement to leave 3/4 feet on either side of the border for
the common use of the appellant/plaintiff and the first respondent/first
defendant, it was contended therein that the former did not leave any space on
the east of his compound wall and on the other hand, the wall was constructed
encroaching upon the property of the first respondent/first defendant by 2 feet
and hence the suit should be dismissed.
5. The trial Court framed necessary issues and conducted trial. At
the conclusion of trial, after considering the evidence both oral and
documentary adduced on either side, the trial Court held that the plaint third
schedule property shown as ‘A1G1’ in the plaint plan was constructed within the
property of the appellant; that the appellant/plaintiff had left just 1/2 feet
space on the east of the said wall at the northern extremity and that the said
wall was constructed just on the border of the property of the appellant and the
first respondent, without leaving any space on the southern extremity. The trial
Court also held that the appellant/plaintiff had only left a triangular space in
between the points ‘AA1G1’. By necessary implication, the trial Court has held
that the portion comprised in the triangle ‘A,G1G’ comes within the boundary of
the first respondent/first defendant. Based on the said findings, the trial
Court allowed the suit and granted the reliefs as prayed for but with a
qualifying observation that the suit second schedule property is triangular in
shape.
6. On appeal, the learned Additional District Judge, Tuticorin
reversed the said findings, set aside the judgment and decree of the trial Court
and dismissed the suit in its entirety with cost by its judgment dated
28.08.1996. Hence the second appeal.
7. This Court heard the submissions made by Mr.K.Srinivasan, learned
counsel appearing for the appellant and also by Mr.M.A.Abdulwahab, learned
counsel appearing for the respondents. The materials available on record
including the judgments of both the Courts have been perused.
8. According to the title deeds of the appellant/plaintiff, the
east-west measurement of his property comprised in Survey No.2913 on the north
is 244 feet and the east-west measurement on the south is 257 1/2 feet. The
east-west measurement gradually increases from north to south. The
appellant/plaintiff claims to have constructed the wall described as the third
schedule property and marked as ‘A1G1’ in Ex.A.4-plaint plan, leaving a space of
3/4 feet on its east. Thus the appellant/plaintiff claims title also to the
property shown as ‘AA1GG1’ in the plaint plan measuring 3/4 feet x 162 feet
described as the second schedule property. Referring to the measurements found
in the Commissioner’s reports and plans marked as Exs.C.1 to C.4, the learned
trial Judge held that the property of the appellant/plaintiff includes the
triangular portion ‘AA1G1’ and excludes the triangular portion ‘AG1G’ with
reference to Ex.A.4-plaint plan. According to the Commissioner’s second plan
marked as Ex.C.3, the distance between points B and C measured 256 feet and if
the thickness of the eastern wall is added, the total east-west measurement of
the appellant’s/plaintiff’s property on its southern extremity will come to 257
1/2 feet. Taking note of such measurement the learned trial Judge has held that
the southern end of suit third schedule was constructed just on the border line
without leaving any space on the east of it. The learned lower appellate Judge
concurred with the view expressed by the learned trial Judge that the wall shown
as the suit third schedule property was constructed on the border of the
properties of the appellant and the first respondent at the point of southern
end of suit third schedule wall. The learned lower appellate Judge has also
observed that the first defendant’s property extended upto the point ‘D1’ as the
north-south measurement of the first defendant’s property, in between the points
‘D1’ and ‘I’ happened to be 135 feet. As a necessary corollary the lower
appellate Court has held that the appellant has not left any space of the east
of his wall even at its northern tip. In view of the said observation, the
learned lower appellate Judge has come to the conclusion that the
appellant/plaintiff has not left any space on the east of the suit wall shown as
the third schedule property and that hence, he was not entitled to any relief in
respect of the portion shown as suit second schedule property and marked as
‘AA1G1G’ in Ex.A.4-plaint plan.
9. The learned counsel for the appellant contended that the learned
lower appellate Judge, without assigning proper and convincing reasons and
without properly considering the Commissioner’s reports and plans marked as
Exs.C.1 to C.4, had come to an erroneous conclusion that there was no space left
on the east of the wall shown as ‘A1G1’ in the plaint plan and that the well
considered finding of the trial Court that the triangular portion comprised
within the points ‘AA1G1’ belongs to the appellant/plaintiff should not have
been disturbed. On the other hand, the learned counsel for the contesting
respondent contended that the finding of fact recorded by the lower appellate
Court, after reappraising the evidence, could not be interfered with in the
second appeal, unless the said finding could be termed perverse; that the
finding of the lower appellate Court regarding the suit second schedule property
was supported by tangible evidence; that the preponderance of evidence supported
only the said finding and that the said finding could not be termed erroneous,
much less perverse.
10. This Court has gone through the relevant evidence in the light
of the rival submissions made by the learned counsel appearing on either side.
Upon such a consideration, this Court is of the view that the finding of the
lower appellate Court to the effect that the appellant/plaintiff had not proved
to have left any space on the east of the wall described as suit third schedule
property and marked as ‘A1G1’ in plaint plan cannot be assailed. As per the
Commissioner’s second plan and report marked as Exs.C-3 and C-4, the east-west
measurement of the appellant’s/plaintiff’s land inclusive of the eastern wall
marked as ‘GG1F1F’ in Ex.C.3 on his southern border comes to 257 1/2 feet. The
said measurement agrees with the title deed of the appellant/plaintiff. The suit
second schedule wall has been shown as ‘A1G1’ in the plaint plan. The same is
found marked as ‘DGG1D1’ in the Commissioner’s plan Ex.C.3. It shall be
pertinent to notice that the east-west measurement of the
appellant’s/plaintiff’s property increases gradually from north to south (from
244 feet to 257 1/2 feet). Hence the distance between the corresponding point on
the western border and the point marked as ‘G’ in the Commissioner’s plan Ex.C.3
shall definitely be larger than the length of the northern border and lesser
than the southern border. According to the Commissioner’s second report marked
as Ex.C.4, the length of the southern border excluding the eastern wall is 256
feet 10 inches. The same shall be the east-west measurement of the plaintiff’s
property taken from point ‘G’. Therefore, it is quite obvious that the
appellant/plaintiff has not left any space on the east of point ‘G’ marked in
Ex.C.3.
11. It is obvious from Ex.C.4-Commissioner’s report that the
plaintiff has instructed the Commissioner not to measure the length of northern
boundary of his property. The distance between the points marked as ‘I and D1’
in Ex.C.3 was found to be 135 feet by the Commissioner. The said measurement
tallies with the measurement of the first respondent’s/first defendant’s
property. It transpires that the Commissioner was asked to take the mid point of
the wall lying on the eastern border of the first respondent’s/first defendant’s
property and thus, the trial Court seems to have come to a conclusion that there
was an excess of 1/2 feet space and hence, the plaintiff should have left 1/2
feet on the east of the suit third schedule wall on its northern end. Such
approach made by the learned trial Judge seems to be erroneous.
12. The first respondent/first defendant has produced the sale deed
dated 12.12.1961 concerning the property comprised in T.S.No.2915 which is lying
on the east of the property of the first respondent’s/first defendant’s
property. Clear evidence has been adduced by the first respondent/first
defendant to the effect that the compound wall lying on the east of the first
respondent’s property which is shown as ‘HOIQ’ in Ex.C.3 exclusively belongs to
the owner of the land that lies on the east of the first respondent’s property.
The same has not been properly contradicted. Therefore, the finding of the lower
appellate Court to the effect that the first respondent had not left a space of
3/4 feet on the east of the suit third schedule wall is based on sound reasons
and hence, the said finding cannot be termed either defective or infirm. The
same deserves to be confirmed. This Court concurs with the finding of the
learned lower appellate Judge that the appellant/plaintiff has not substantiated
his case that he is entitled to either the rectangular portion shown in Ex.A.4-
plaint plan as ‘AA1G1G’ as claimed by him. This Court also accepts the
correctness of the finding of the lower appellate Court that the trial Court
erred in holding that the appellant/plaintiff was entitled to a triangular space
(AA1G1 as per Ex.A.4-plaint plan). The lower appellate Court was perfectly right
in non-suiting the appellant/plaintiff for any relief claimed in respect of the
suit second schedule property. Hence the judgment and decree of the lower
appellate Court, so far as the suit second schedule property is concerned, have
got to be confirmed.
13. So far as he reliefs claimed in respect of the suit third
schedule property, namely the north-south wall of the plaintiff shown as ‘A1G1’
in Ex.A.4-plaint plan is concerned, it is quite clear that the
appellant/plaintiff has not encroached upon any portion of the first
respondent’s property and that the said wall was constructed just on the
demarcating line dividing the properties of the appellant/plaintiff and the
first respondent/first defendant. It is also not in dispute that the entire wall
was constructed exclusively by the appellant/plaintiff. The first
respondent/first defendant does not claim that the said wall is a common wall
belonging to both. On the other hand, the first respondent/first defendant has
contended that the said wall was constructed not within the boundaries of the
appellant’s/plaintiff’s property but within the boundaries of the first
respondent/first defendant’s property by encroaching upon the same by 2 feet.
The thickness of the wall, according to the Commissioner’s report, is 1 feet 4
inches. Therefore, the first respondent’s contentions seems to be that the first
respondent is not only entitled to the entire portion on which the suit third
schedule property has been erected, but also to an extent of 8 inches on the
west of the said wall. It is quite obvious from the Commissioner’s report that
the east-west measurement of the first respondent’s property on the north is 135
feet, if it is measured from the western edge of the wall found on the east of
the first respondent’s property. If the measurement is taken from the mid point
of the said wall, then the measurement shall be even more than the one noted in
Ex.B.2. Under these circumstances, we can safely come to the conclusion that no
portion of the first respondent’s property has been encroached upon and that the
entire wall of the appellant/plaintiff, shown as the suit third schedule
property, lies within the boundaries of the appellant’s/plaintiff’s land.
Therefore, the first respondent or the second respondent who is the lessee of
the property of the first respondent cannot have any right to place rafters on
the said wall of the appellant/plaintiff to rest the roof of the construction
made on the east of the said wall. It is not in dispute that the respondents
have fixed rafters on the said wall to support the roof for the structure built
on the eastern side of the plaint third schedule wall. As such, this Court is of
the considered view that the appellant/plaintiff shall be entitled to the relief
of injunction not to disturb his peaceful possession and enjoyment of the said
wall and a mandatory injunction for the removal of the rafters kept resting on
the said wall to support the roof of the structure constructed on the east of
the wall.
14. The learned lower appellate Judge, under a wrong impression that
a suit for bare injunction or mandatory injunction cannot succeed, when the
title in respect of the subject matter of the suit is disputed by the opposite
party. It is pertinent to note that under Section 34 of the Specific Relief Act,
1963 the relief of declaration cannot be granted, when further reliefs could
have been asked for and the plaintiff fails to seek such further relief. On the
other hand, no such restriction is found anywhere in the Specific Relief Act or
any other statutory provision that no injunction could be granted, when the
title of the plaintiff is disputed by the opposite party. It is trite law that a
person who is in possession can maintain a suit for bare injunction based on
possession alone and the party who resists such a suit may be at liberty to show
that no injunction could be granted as he happens to be the real owner. There is
no bar for the Courts dealing with a suit for bare injunction to go into the
question of title incidentally. In this case, it has been proved that the suit
wall is confined within the border of the land belonging to the
appellant/plaintiff. Therefore, this Court is of the considered view that the
lower appellate Court has committed an error in non-suiting the plaintiff, so
far as the reliefs sought for in respect of the suit third schedule property and
that hence, this Court is definitely entitled to interfere with the same and
set right the defect.
15. In view of the foregoing reasons, it is hereby concluded that
the judgment and decree of the lower appellate Court reversing the judgment and
decree of the trial Court, so far as the suit second item is concerned, has got
to be confirmed. So far as the suit third schedule property is concerned, the
lower appellate Court’s judgment and decree is bound to be interfered with,
modified and reversed with the result that the appellant/plaintiff shall be
entitled to the reliefs of permanent injunction and mandatory injunction in
respect of the suit third schedule property alone. However this Court thinks fit
to add the following clarification:
As it is found that the appellant/plaintiff has constructed the suit
third schedule compound wall without leaving any space on its east, the
appellant/plaintiff cannot claim any right to use any portion lying on the east
of the said wall either for repairing or whitewashing the said wall. Similarly,
the first respondent shall be at liberty to put up a wall touching the suit
third schedule wall without leaving any space and provide support for the roof
of the structures of the respondents.
16. In the result, this Second Appeal is partly allowed and the
judgment and decree of the lower appellate Court reversing the judgment and
decree of the trial Court, so far as the suit second item is concerned, is
confirmed. So far as the suit third schedule property is concerned, the lower
appellate Court’s judgment and decree is modified and reversed with the result
that the appellant/plaintiff shall be entitled to the reliefs of permanent
injunction and mandatory injunction in respect of the suit third schedule
property alone. It is further clarified that the appellant/plaintiff cannot
claim any right to use any portion lying on the east of the said wall either for
repairing or whitewashing the said wall. Similarly, the first respondent shall
be at liberty to put up a wall touching the suit third schedule wall without
leaving any space and provide support for the roof of the structures of the
respondents. No costs. Consequently, the connected miscellaneous petition is
closed.
SML
To
1.The Additional District Judge,
Tuticorin.
2.The Additional District Munsif,
Tuticorin.
