BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30/01/2009 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN S.A.NO.1049 of 2000 1. Vadivuammal 2. Shankar Narayanan 3. Arumugham 4. Sivaguru ..Appellants/defendants vs Shankar Arumuga Nainar. ..Respondent/plaintiff PRAYER Second Appeal filed under Section 100 of the civil Procedure Code against the judgment and decree made in A.s.No.196 of 19098, dated 30.11.1999, on the file of the II Additional District Judge, Tirunelveli, confirming the judgement and decree made in O.S.No.156 of 1993, dated 13.10.1998, on the file of the II Additional District Munsif, Tirunelveli. !For Appellants ...Mr.K.Srinivasan ^For Respondent ...Mr.S.Meenakshisundaram :JUDGEMENT
This Second Appeal is preferred against the judgment and decree made in
A.S.No.196 of 19098, dated 30.11.1999, on
the file of the II Additional District Judge, Tirunelveli, confirming the
judgment and decree made in O.S.No.156 of 1993, dated 13.10.1998, on the file of
the II Additional District Munsif, Tirunelveli.
2. The appellants herein were the defendants in the suit. The suit was
filed by the respondent herein before the trial court, seeking relief of
permanent injunction, mandatory injunction and other consequential relief
against the appellants herein. The suit was decreed by the trial court by
judgment and decree dated 13.10.1998. Aggreived by the judgment , the
appellants herein preferred appeal before the II Additional District Court,
Tirunelveli in A.S.No.196 of 1998. The appellate court by its judgment and
decree, dated 30.11.1999, confirmed the judgment passed by the trial court and
dismissed the appeal. Aggrieved by the same, the present Second Appeal has been
preferred, by the appellants who were defendants in the suit.
3. This Court considering the grounds raised by the appellants has framed
the following Substantial questions of law:
“1. Whether the judgment and decree of Courts below are legally
sustainable inasmuch as they have found that the “BC” wall is execlusive wall of
the respondents, ignoring the physical features of the wall which will clearly
establish the wall is common wall?
2. Whether the judgment and Appellae Court is legally sustainable
inasmuch as it has improperly rejected the Application I.A.No.80 of 1989 filed
to receive additonal documentary evidence to show the BC wall is common wall?”
4. Mr.K.Srinivasan, the learned counsel appearing for the appellants
argued that the disputed “BC” north-south wall described by the Advocate
Commissioner in his Report and Plan marked as Ex.C1 and C2 is a common wall
belongs to the appellants and the respondent, however, the courts below without
considering the physical features held that it is an exclusive wall belongs to
the respondent herein, against law. The learned counsel further submitted that
there is no supporting document on the side of the respondent/plaintiff to show
that the said wall exclusively belongs to the respondent.
5. Per contra, Mr.S.Meenakshisundaram, learned counsel appearing for the
respondent/plaintiff submitted that the property in dispute is only “BC” north-
south wall which is nothing to do with the appellants’ property, and the same
had been put up only by the predecessors in title to the respondent’s property.
On the eastern side of the said property and further east of the “BC” wall
appellants/defendants have put up “KJ” construction in the common pathway by way
of encroachment, that has to be demolished by the order of Mandatory
Injunction.. According to the learned counsel appearing for the respondent,
appellants claiming “BC” portion, as a common wall is not legally sustainable.
6. It is an admitted fact that the appellants’ property is not situated on
the eastern side of the “BC” wall and their property is only on the southern
side of the common pathway, which is described as “BCHL” in the sketch-Ex.C2
prepared by the Advocate Commissioner. Beyond the “BC” wall, “CD” wall portion
is available on the south. Only on the east of “CD” wall portion, the
appellants’ property is situated. The appellants’ have admitted that they have
no right in the “AB” portion of the wall. It is not in dispute that “ABCD” is a
continuous north-south wall on the eastern side of the respondent’s property,
out of which, “AB” portion of the wall is on the extreme north. “BC” portion is
its continuation on the south, “CD” portion is further continuation of the said
wall on the south. Only on the eastern side of the “CD” portion of the wall,
appellants’ house property is situated. Immediately on the east of “BC” wall
portion, common pathway has been shown and not the appellants’ property.
Similarly, on the east of “AB” portion, some other house is shown, which is not
the appellants’ property. From the sketch-Ex.C2, it is clear that “BC” wall,
the property in dispute in the suit, is only a part of the respondent’s property
on the east of his property. However, the said “BC” wall is no way abetting the
appellants’property to claim it as a common wall by the appellants. As the “BC”
wall is not even a boundary to the appellants’ property and the same is away
from their property, they cannot claim that a said wall is the common wall of
the appellants and respondent.
7. Mr.K.Srinivasan, the learned counsel appearing for the appellants
submitted that the burden of proof lies on the respondent, since, he was the
plaintiff in the suit. It is not in dispute that the respondent who was
plaintiff in the suit and sought the relief of permanent injunction, mandatory
injunction and other consequential relief should prove his case.
8. In support of his contention, the respondent/plaintiff has marked 10
exhibits, apart from examining himself as P.W.1. Two other witnesses have also
been examined on the side of the respondent/plaintiff. Ex.A1 is the certified
copy of the sale deed executed by one Sabapathy Pillai in favour of Sankaran
Pillai, father of the respondent. According to the learned counsel appearing
for the respondent, the first item of plaint schedule property was purchased by
his father in the year 1943 under the original of Ex.A1 and he died in the year
1981, leaving behind the respondent, his sole legal heir. It is also not in
dispute that the appellants property was originally belonged to one
Easwaramoorthy Pillai, husband of the first appellant and father of other
appellants. After the demise of the said Easwaramoorthy Pillai, the appellants
owned the said property by way of inhertance. The respondent who was examined as
P.W.1 has deposed that “BC” wall was being maintained by the respondent’s father
and subsequently by the respondent, since 1944 after the purchase of the
property and that the appellants have no right in the said property.
9. It is not in dispute that as per the Commissioner’s Report and sketch-
Ex.C1 and Ex.C2, the disputed “BC” wall is not abetting the appellants’
property. In fact, as per the sketch-Ex.C2, the said wall is beyond the
appellants property. Immediately on the east of “BC” portion, only common
pathway is available. It is also admitted by both parties that the appellants,
respondent and others have right in that common pathway, which is immediately on
the north of the appellants’ property and east of “BC” wall. Only on the west
of the common pathway, “BC” Wall is available which is on the north of the
appellants’ property and as found by the court below, the “BC” wall is not even
a boundary of the appellants’ property.
10. The Learned counsel appearing for the appellants submitted that there
is no specific recital in Ex.A1, A3 and A4-Sale deeds to show that the said wall
is an exclusive wall belongs to the respondent. It is clear from the
Commissioner’s Sketch/Ex.C2 that the “ABCD” wall is on the eastern side of the
respondent’s property,however, the disputed property, namely “BC” portion of the
wall is not abetting the appellants’ property. In other words, so far as the
“BC” Portion of the wall is concerned, appellants cannot be neighbours to the
respondent, only for the”CD” portion of the wall, the appellants are neighbours
to the respondent, on the east and hence they have no locus-standi to claim the
“BC” portion of the wall as their common wall.
11. So far as the “CD” portion of the wall is concerned, it is
immediately on the west of the appellants property however with regard to “CD”
portion, there is no dispute to be adjudicated in this appeal. Hence in this
Second Appeal, the Court need not go into the question, whether the “CD” portion
of the wall is a common wall of the appellants and the respondent or exclusive
wall of the respondent,as the same is not a decidable issue in the Second
Appeal. So far as the “BC” portion is concerned, it is nothing to do with the
appellants property. It is only on the east of the respondent’s house-property
and the appellants’ property is admitted not abetting the “BC” portion of the
wall, and hence,the same cannot be the common wall of the appellants, as claimed
by them.
12. The learned counsel for the appellants submitted that the respondent
is not entitled to the relief of permanent injunction or mandatory injunction to
demolish the “KJ” construction put up by the appellants, in the alleged common
pathway without a prayer seeking declaration.
13. In general, when the relief sought for is mandatory injunction for
demolition, seeking relief of declaration of title or specific right in the
immovable property, is a pre-requisite. When the title to a property or the
rights claimed is in dispute, without establishing the specific legal right or
title to the property, no one can claim prohibitory injunction or mandatory
injunction aginst the other. However, when the title or the specific right for
seeking the relief is admitted bythe other side or the same is not in dispute,
one can claim mandatory injunction, even without a prayer for declaration,
since admission needs no proof. A person who has established his legal
possession is entitled to the relief of permanent injunction against any other
person, except the true owner of the property. It is a settled proposition of
law that a tenant who is in legal possession of a property can seek prohibitory
injunction even against his landlord, not to evict him except under due process
of law.
14. In the instant case, so far as the “BC” wall is concerned, the
appellants have no right to claim the same as a common wall, as their property
is admittedly not abetting the “BC” wall. The said “BC” wall is admittedly
part and parcel of the respondents property, on the east, but away from the
appellants’ property. Only on the east of the “BC” wall, there is a common
pathway. Therefore, the appellants who are not neighbours to the respondent at
the said “BC” wall, are strangers to the “BC” portion of the wall and hence they
have no locus standi to dispute the claim of the respondent, who is admittedly
in possession and enjoyment of the said wall. Therefore, merely because there is
no prayer for declaration of title, it cannot be decided that the
respondent/plaintiff was not entitled to prohibitory injunction against the
appellants who are strangers to the “BC” wall.
15. The evidence available on record clearly shows that the “KJ” wall
portion was put up, in the common pathway, immediately on the east of “BC” wall
by the appellants. Even in the evidence, the appellants have admitted that
immediately on the east of the “BC”wall, there is a common pathway which is on
the north of the appellants property and in the Commissioner’s Sketch, the same
has been described as “BCHL”. It is an admitted fact by both the parties to the
appeal that the aforesaid “BCHL” wall is a common pathway to the appellants,
respondent and others. In such circumstances, the appellants have no right to
put up “KJ” construction in the common pathway. As it has been admitted that
“BCHL” portion is a common pathway, the appellants have no right to putup “KJ”
wall in the common pathway. When there is an encroachment or illegal
construction, based on the admitted fact, the respondent/plaintiff is entitled
to seek mandatory injunction to remove the illegal construction made in the
common pathway, even without a declaratory relief.
16. As per Latin Maxim “Ubi jus ibi idem remedium” when there is a right
there should be a remedy. In this case, admittedly the “BCHL” is a common
pathway and the respondent is also entitled to use the pathway and therefore
when there is encroachment and illegal construction, the respondent/plaintiff is
entitled to seek mandatory injunction to remove the illegal construction,
without a declaratory prayer since there is admission by the other side, that
it is a common pathway for both parties. Therefore, I could find no error in the
concurrent judgments of the courts below in granting the relief as prayed for
and accordingly, I answer the first substantial question of law against the
appellants and in favour of the respondent.
17. So far as the Second Substantial question of law is concerned,
learned counsel for the appellants submitted that an interlocutory application
in I.A.No.80 of 1999 was filed by the appellants to receive additional
documentary evidence to show that the “BC” wall is a common wall, however, that
was unreasonably dismissed by the court below and therefore according to the
appellants, the judgment rendered by the appellate court, is not legally
sustainable.
18. It is seen from the impugned judgment that I.A.No.80 of 1989 had been
filed under Order 41 Rule 27 r/w Section 151 of Civil Procedure Code to receive
a copy of the sale deed dated 16.07.1935 as additional document. As per the
copy of the document, one Sabapathy Pillai, vendor of the respondent’s father
had purchased the property in the year 1935, however the said document is no way
supporting the case of the appellants to show that it was a common wall of the
appellants. The Learned counsel for the respondent has not disputed the fact
that the respondent’s father Sankaran Pillai purchased the property under the
original of Ex.A1, dated 12.02.1943 from the said Sabapathy Pillai. The said
Sabapathy Pillai had purchased the property on 16.07.1935 under the original of
the said unmarked document. The first appellate court has given its finding
that the aforesaid unmarked document is nothing to do with the claim of the
appellants herein and dismissed the application filed in I.A.No.80 of 1989.
19. As per the Commissioner’s plan Ex.C2, it is clear that “ABCD” wall is
on the east of the respondent’s property. The second appellant who was examined
as D.W.1 has categorically admitted that the appellants herein have no right in
the “AB” portion of the wall, “BC” portion of the wall which is a continuation
of the “AB” wall, immediately on the south. Admittedly, the appellants house
property is not abetting neither the “AB” portion nor the “BC” portion of the
wall. Therefore, the appellants cannot make any claim in the “BC” portion of
the wall, based on the unmarked document. The appellants have admitted that “AB”
portion of the wall is not their common wall,hence, the claim of the appellants
in respect of “BC” wall cannot be justified. Like”AB” portion wall, the disputed
“BC” portion of the wall is also not abetting the appellants’ property. The sale
deed, dated 16.07.1935,relating to Sabapathy Pillai, is only a parent document
to the respondent’s property and hence the said document is nothing to do with
the claim of the appellants in respect of the “BC” wall. Had the document dated
16.07.1935 been marked, it could not have imporved the case of the appellants,
since the appellants property was not even a boundary of the “BC” wall, to claim
the same as their commlon wall. Hence the non-marking of the document by the
court below and the dismissal of the interlocutory application, in I.A.No.80 of
1999, by the first appellate court do not cause any prejudice to the appellants
and therefore, I answer the second substantial question of law also against the
appellants and in favour of the respondent, holding that the judgment and
decreed passed by the court below is based on evidence and hence the impugned
judgment and decree are legally sustainable.
20. In the result, confirming the impugned judgment and decree of the
court below, the Second Appeal is dismissed. However, for the execution of the
mandatory injunction, one month time is granted from the date of this judgment.
There will be no order as to costs.
vsn
To
1. The II Additional District Judge,
Tirunelveli.
2. The II Addtional District Munsif,
Tirunelveli.