{"id":17271,"date":"2009-01-30T00:00:00","date_gmt":"2009-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vadivuammal-vs-shankar-arumuga-nainar-on-30-january-2009"},"modified":"2014-05-27T18:40:42","modified_gmt":"2014-05-27T13:10:42","slug":"vadivuammal-vs-shankar-arumuga-nainar-on-30-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vadivuammal-vs-shankar-arumuga-nainar-on-30-january-2009","title":{"rendered":"Vadivuammal vs Shankar Arumuga Nainar on 30 January, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Vadivuammal vs Shankar Arumuga Nainar on 30 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:30\/01\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE S.TAMILVANAN\n\nS.A.NO.1049 of 2000\n\n1.  Vadivuammal\n\n2.  Shankar Narayanan\n\n3.  Arumugham\n\n4.  Sivaguru\t\t              ..Appellants\/defendants\n\nvs\n\nShankar Arumuga Nainar.\t       ..Respondent\/plaintiff\n\nPRAYER\n\nSecond Appeal filed under Section 100 of the civil Procedure Code\nagainst the judgment and decree made in A.s.No.196 of 19098, dated 30.11.1999,\non the file of the II Additional District Judge, Tirunelveli, confirming the\njudgement and decree made in O.S.No.156 of 1993, dated 13.10.1998, on the file\nof the II Additional District Munsif, Tirunelveli.\n\n!For Appellants ...Mr.K.Srinivasan\n^For Respondent ...Mr.S.Meenakshisundaram\n\t\t\n:JUDGEMENT\n<\/pre>\n
\tThis Second Appeal is preferred against the judgment and decree made in
\nA.S.No.196 of 19098, dated 30.11.1999, on<\/p>\n
the file of the II Additional District Judge, Tirunelveli, confirming the
\njudgment and decree made in O.S.No.156 of 1993, dated 13.10.1998, on the file of
\nthe II Additional District Munsif, Tirunelveli.\n<\/p>\n
\t2.  The appellants herein were the defendants in the suit. The suit was
\nfiled by the respondent herein before the trial court, seeking relief of
\npermanent injunction, mandatory injunction and other consequential relief
\nagainst the appellants herein.  The suit was decreed by the trial court by
\njudgment and decree dated 13.10.1998.  Aggreived by the judgment , the
\nappellants herein preferred  appeal before the II Additional District Court,
\nTirunelveli in A.S.No.196 of 1998. The appellate court by its judgment and
\ndecree, dated 30.11.1999, confirmed the judgment passed by the trial court and
\ndismissed the appeal.  Aggrieved by the same, the present Second Appeal has been
\npreferred, by the appellants who were defendants in the suit.\n<\/p>\n
\t3.  This Court considering the grounds raised by the appellants has framed
\nthe following Substantial questions of law:\n<\/p>\n
\t“1.  Whether the judgment and decree of Courts below are legally
\nsustainable inasmuch as they have found that the “BC” wall is execlusive wall of
\nthe respondents, ignoring the physical features of the wall which will clearly
\nestablish the wall is common wall?\n<\/p>\n
\t2.  Whether the judgment and Appellae Court is legally sustainable
\ninasmuch as it has improperly rejected the Application I.A.No.80 of 1989 filed
\nto receive additonal documentary evidence to show the BC wall is common wall?”\n<\/p>\n
\t4. Mr.K.Srinivasan, the learned counsel appearing for the appellants
\nargued that the disputed “BC” north-south wall described by the Advocate
\nCommissioner in his Report and Plan marked as Ex.C1 and C2 is a common wall
\nbelongs to the appellants and the respondent, however, the courts below without
\nconsidering the physical features  held that it is an exclusive wall belongs to
\nthe respondent herein, against law. The learned counsel further submitted that
\nthere is no supporting document on the side of the respondent\/plaintiff to show
\nthat the said wall exclusively belongs to the respondent.\n<\/p>\n
\t5. Per contra, Mr.S.Meenakshisundaram, learned counsel appearing for the
\nrespondent\/plaintiff submitted that the property in dispute is only “BC” north-
\nsouth wall which  is nothing to do with the  appellants’ property, and the same
\nhad been put up only by the predecessors in title to the respondent’s property.
\nOn the eastern side of the said property and further east of the “BC” wall
\nappellants\/defendants have put up “KJ” construction in the common pathway by way
\nof encroachment, that has to be demolished by the order of Mandatory
\nInjunction..  According to the learned counsel appearing for the respondent,
\nappellants claiming “BC” portion, as a common wall is not legally sustainable.\n<\/p>\n
\t6. It is an admitted fact that the appellants’ property is not situated on
\nthe eastern side of the “BC” wall and their property is only on the southern
\nside of the common  pathway, which is described as “BCHL” in the sketch-Ex.C2
\nprepared  by the Advocate Commissioner.  Beyond the “BC” wall, “CD” wall portion
\nis available on the south.  Only on the east of “CD” wall portion, the
\nappellants’ property is situated.  The appellants’ have admitted that they have
\nno right in the “AB” portion of the wall.  It is not in dispute that “ABCD” is a
\ncontinuous north-south wall on the eastern side of the respondent’s property,
\nout of which, “AB” portion of the wall is on the extreme north.  “BC” portion is
\nits continuation on the south, “CD” portion is further continuation of the said
\nwall on the south.  Only on the eastern side of the “CD” portion of the wall,
\nappellants’ house property is situated.  Immediately on the east of “BC” wall
\nportion, common pathway has been shown and not the appellants’ property.
\nSimilarly, on the east of “AB” portion, some other house is shown, which is not
\nthe appellants’ property.  From the sketch-Ex.C2, it is clear that “BC” wall,
\nthe property in dispute in the suit, is only a part of the respondent’s property
\non the east of his property.  However, the said “BC” wall is no way abetting the
\nappellants’property to claim it as a common wall by the appellants.  As the “BC”
\nwall is not even a boundary to the appellants’ property and the same is away
\nfrom their property, they cannot claim that a said wall is the common wall of
\nthe appellants and respondent.\n<\/p>\n
\t7. Mr.K.Srinivasan, the learned counsel appearing for the appellants
\nsubmitted that the burden of proof lies on the respondent, since, he was the
\nplaintiff in the suit. It is not in dispute that the respondent who was
\nplaintiff in the suit and sought the relief of permanent injunction, mandatory
\ninjunction and other consequential relief should prove his case.\n<\/p>\n
\t8. In support of his contention, the respondent\/plaintiff has marked 10
\nexhibits, apart from examining himself as P.W.1. Two other witnesses have also
\nbeen examined on the side of the respondent\/plaintiff.   Ex.A1 is the certified
\ncopy of the sale deed executed by one Sabapathy Pillai in favour of Sankaran
\nPillai, father of the respondent.  According to the learned counsel appearing
\nfor the respondent, the first item of plaint schedule property was purchased by
\nhis father in the year 1943 under the original of Ex.A1 and he died in the year
\n1981, leaving behind the respondent, his sole legal heir. It is also not in
\ndispute that the appellants property was originally belonged to one
\nEaswaramoorthy Pillai, husband of the first appellant and father of other
\nappellants.  After the demise of the said Easwaramoorthy Pillai, the appellants
\nowned the said property by way of inhertance. The respondent who was examined as
\nP.W.1 has deposed that “BC” wall was being maintained by the respondent’s father
\nand subsequently by the respondent, since 1944 after the purchase of the
\nproperty and that the appellants have no right in the said property.\n<\/p>\n
\t9. It is not in dispute that as per the Commissioner’s Report and  sketch-
\nEx.C1 and Ex.C2, the disputed “BC” wall is not abetting the appellants’
\nproperty.  In fact, as per the sketch-Ex.C2, the said wall is beyond the
\nappellants property.  Immediately on the east of “BC” portion, only common
\npathway is available.  It is also admitted by both parties that the appellants,
\nrespondent and others have right in that common pathway, which is immediately on
\nthe north of the appellants’ property and east of “BC” wall.  Only on the west
\nof the common pathway, “BC” Wall  is available which is on the north of the
\nappellants’ property and as found by the court below, the “BC” wall is not even
\na boundary of the appellants’ property.\n<\/p>\n
\t10. The Learned counsel appearing for the appellants submitted that there
\nis no specific recital in Ex.A1, A3 and A4-Sale deeds to show that the said wall
\nis an  exclusive wall belongs to the respondent. It is clear from the
\nCommissioner’s Sketch\/Ex.C2 that the “ABCD” wall is on the eastern side of the
\nrespondent’s property,however, the disputed property, namely “BC” portion of the
\nwall is not abetting the appellants’ property.  In other words, so far as the
\n“BC” Portion of the wall is concerned, appellants cannot be neighbours to the
\nrespondent, only for the”CD” portion of the wall, the appellants are neighbours
\nto the respondent, on the east and hence they have no locus-standi to claim the
\n“BC” portion of the wall as their common wall.\n<\/p>\n
\t 11. So far as the “CD” portion of the wall is concerned, it is
\nimmediately on the west of the appellants property however with regard to “CD”
\nportion, there is no dispute to be adjudicated in this appeal. Hence in this
\nSecond Appeal, the Court need not go into the question, whether the “CD” portion
\nof the wall is a common wall of the appellants and the respondent or exclusive
\nwall of the respondent,as the same is not a decidable issue in the Second
\nAppeal.  So far as the “BC” portion is concerned,  it is nothing to do with the
\nappellants property.  It is only on the east of the respondent’s house-property
\nand the appellants’ property is admitted not abetting the “BC” portion of the
\nwall, and hence,the same cannot be the common wall of the appellants, as claimed
\nby them.\n<\/p>\n
\t12.  The learned counsel for the appellants submitted that the respondent
\nis not entitled to the relief of permanent injunction or mandatory injunction to
\ndemolish the “KJ” construction put up by the appellants, in the alleged common
\npathway without a prayer seeking declaration.\n<\/p>\n
\t13.  In general, when the relief sought for is  mandatory injunction for
\ndemolition, seeking relief of  declaration of title or specific right in the
\nimmovable property, is a pre-requisite.  When the title to a property or the
\nrights claimed is in dispute, without establishing the specific legal right or
\ntitle to the property, no one can claim prohibitory injunction or mandatory
\ninjunction aginst the other.  However, when the title  or the specific right for
\nseeking the relief is admitted bythe other side or the same is not in dispute,
\none can claim mandatory injunction, even  without a prayer for declaration,
\nsince admission needs no proof.  A person who has established his legal
\npossession is entitled to the relief  of  permanent injunction against any other
\nperson, except the true owner of the property.  It is a settled proposition of
\nlaw that a tenant who is in legal possession of a property can seek prohibitory
\ninjunction even against his landlord, not to evict him except under due process
\nof law.\n<\/p>\n
\t14.  In the instant case, so far as the “BC” wall is concerned, the
\nappellants  have no right to claim the same as a common wall, as their property
\nis admittedly not abetting the “BC” wall.  The said “BC” wall is admittedly
\npart and parcel of the respondents property, on the east, but away from the
\nappellants’ property.  Only on the east of the “BC” wall, there is a common
\npathway. Therefore, the appellants who are not neighbours to the respondent at
\nthe said “BC” wall, are strangers to the “BC” portion of the wall and hence they
\nhave no locus standi to dispute the claim of the respondent, who is admittedly
\nin possession and enjoyment of the said wall. Therefore, merely because there is
\nno prayer for declaration of title, it cannot be decided that the
\nrespondent\/plaintiff was not entitled to prohibitory injunction against the
\nappellants who are strangers to the “BC” wall.\n<\/p>\n
\t15.  The evidence available on record clearly shows that the “KJ” wall
\nportion was put up, in the common  pathway, immediately on the east of “BC” wall
\nby the appellants. Even in the evidence, the appellants have admitted that
\nimmediately on the east of the “BC”wall, there is a common pathway which is on
\nthe north of the appellants property and in the Commissioner’s Sketch, the same
\nhas been described as “BCHL”.  It is an admitted fact by both the parties to the
\nappeal that the aforesaid “BCHL” wall is a common pathway to the appellants,
\nrespondent and others.  In such circumstances, the appellants have no right to
\nput up “KJ” construction in the common pathway. As it has been admitted that
\n“BCHL” portion is a common pathway, the appellants have no right to putup “KJ”
\nwall in the common pathway.  When there is an encroachment or illegal
\nconstruction, based on the admitted fact, the respondent\/plaintiff is entitled
\nto seek mandatory injunction to remove the illegal construction made in the
\ncommon pathway, even without a declaratory relief.\n<\/p>\n
\t16. As per Latin Maxim “Ubi jus ibi idem remedium” when there is a right
\nthere should be a  remedy.  In this case, admittedly the “BCHL” is a common
\npathway and the respondent is also entitled to use the pathway and therefore
\nwhen there is encroachment and illegal construction, the respondent\/plaintiff is
\nentitled to  seek mandatory injunction to remove the illegal construction,
\nwithout a declaratory prayer  since there is admission by the other side, that
\nit is a common pathway for both parties. Therefore, I could find no error in the
\nconcurrent judgments  of the courts below in granting the relief as prayed for
\nand accordingly, I answer the first substantial question of law against the
\nappellants and in favour of the respondent.\n<\/p>\n
\t17.  So far as the Second Substantial question of law is concerned,
\nlearned counsel for the appellants submitted that an interlocutory application
\nin I.A.No.80 of 1999 was filed by the appellants to receive additional
\ndocumentary evidence to show that the “BC” wall is a common wall,  however, that
\nwas unreasonably dismissed  by the court below and therefore according to  the
\nappellants, the judgment rendered by the appellate court, is not legally
\nsustainable.\n<\/p>\n
\t18. It is seen from the impugned judgment that I.A.No.80 of 1989 had been
\nfiled under Order 41 Rule 27 r\/w Section 151 of Civil Procedure Code to receive
\na copy of the sale deed dated 16.07.1935 as additional document. As per  the
\ncopy of the document, one Sabapathy Pillai, vendor of the respondent’s father
\nhad purchased the property in the year 1935, however the said document is no way
\nsupporting  the case of the appellants to show that it was a common wall of the
\nappellants. The Learned counsel for the respondent has not disputed the fact
\nthat the respondent’s father Sankaran Pillai purchased the property under the
\noriginal of Ex.A1, dated 12.02.1943 from the said Sabapathy Pillai.  The said
\nSabapathy Pillai had purchased the property on 16.07.1935 under the original of
\nthe said unmarked document.  The first appellate court has given its finding
\nthat the aforesaid unmarked document is nothing to do with the claim of the
\nappellants herein and dismissed the application filed in I.A.No.80 of 1989.\n<\/p>\n
\t19. As per the Commissioner’s plan Ex.C2, it is clear that “ABCD” wall is
\non the east of the respondent’s property.  The second appellant who was examined
\nas D.W.1 has categorically admitted that the appellants  herein have no right in
\nthe “AB” portion of the wall, “BC” portion of the wall which is a continuation
\nof the “AB” wall, immediately on the south.  Admittedly, the appellants house
\nproperty is not abetting neither the “AB” portion nor the “BC” portion of the
\nwall.  Therefore, the appellants cannot make any claim in the “BC” portion of
\nthe wall, based on the unmarked document. The appellants have admitted that “AB”
\nportion of the wall is not their common wall,hence, the claim of the appellants
\nin respect of “BC” wall cannot be justified. Like”AB” portion wall, the disputed
\n“BC” portion of the wall is also not abetting the appellants’ property. The sale
\ndeed, dated 16.07.1935,relating to Sabapathy Pillai, is only a parent document
\nto the respondent’s property and hence the said  document is nothing to do with
\nthe claim of the appellants in respect of the “BC” wall.  Had the document dated
\n16.07.1935 been marked,  it could not have imporved the case of the appellants,
\nsince the appellants property was not even a boundary of the “BC” wall, to claim
\nthe  same as their commlon wall. Hence  the non-marking of the document by the
\ncourt below and the dismissal of the interlocutory application, in I.A.No.80 of
\n1999, by the first appellate court do not cause any prejudice to the appellants
\nand therefore, I answer the second substantial question of law  also against the
\nappellants and in favour of the respondent,  holding that the judgment and
\ndecreed passed by the court below is based on evidence and hence the impugned
\njudgment and decree are legally sustainable.\n<\/p>\n
\t20. In the result, confirming the impugned judgment and decree of the
\ncourt below, the Second Appeal is dismissed.  However, for the execution of the
\nmandatory injunction, one month time is granted from the date of this judgment.
\nThere will be no order as to costs.\n<\/p>\n
vsn<\/p>\n
To<\/p>\n
1.  The II Additional District Judge,
\n    Tirunelveli.\n<\/p>\n
2.  The II Addtional District Munsif,
\n    Tirunelveli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Vadivuammal vs Shankar Arumuga Nainar on 30 January, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-17271","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nVadivuammal vs Shankar Arumuga Nainar on 30 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vadivuammal-vs-shankar-arumuga-nainar-on-30-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vadivuammal vs Shankar Arumuga Nainar on 30 January, 2009 - 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