{"id":177685,"date":"2011-02-21T00:00:00","date_gmt":"2011-02-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-yagappan-vs-a-arockiasamy-alias-thambi-on-21-february-2011"},"modified":"2018-03-27T15:09:01","modified_gmt":"2018-03-27T09:39:01","slug":"a-yagappan-vs-a-arockiasamy-alias-thambi-on-21-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-yagappan-vs-a-arockiasamy-alias-thambi-on-21-february-2011","title":{"rendered":"A.Yagappan vs A.Arockiasamy Alias Thambi … on 21 February, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Yagappan vs A.Arockiasamy Alias Thambi … on 21 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 21\/02\/2011\n\nCORAM\nTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR\n\nS.A(MD)NO.257 of 2010\nand\nM.P(MD)No.1 of 2010\n\nA.Yagappan\t\t\t\t... Appellant\t\n\nvs\n\nA.Arockiasamy alias Thambi Arockiam\t... Respondent\n\n\nPRAYER\n\nSecond Appeal filed under Section 100 of Civil Procedure Code, praying\nthis Court to set aside the judgment and decree made in A.S.No.106 of 2004,\ndated 28.04.2006, on the file of the Principal Sub-Court, Dindigul, confirming\nthe judgment and decree made in O.S.No.542 of 2002, dated 22.04.2003, on the\nfile of the II Additional District Munsif Court, Dindigul.\n\n!For Appellant   ... Mr.D.Selvaraj\n^For Respondent  ... Mr.P.Athimoolapandian\n\t   \t     for Mr.N.Damodaran\n\n\n:JUDGMENT\n<\/pre>\n
\tThe defendant in the original suit is the appellant in the second appeal.
\nO.S.No.542 of 2002 was filed by the respondent herein against the appellant
\nherein for the relief of permanent injunction not to interfere with the
\nrespondent’s\/plaintiff’s enjoyment of the suit property shown as ‘ABCD’ in the
\nplaint plan.\n<\/p>\n
\t2. A small stretch of land measuring North-South 5 feet and East-West 42
\nfeet lying on the North of the plaintiff’s residential house comprised in old
\nS.No.520\/1 (new S.No.895\/34) is shown as the suit property. The northern
\nboundary of the suit property is shown to be the open space belonging to the
\nappellant\/ defendant having a width of 1 foot and east-west length of 42 feet,
\nbeyond the north of which the house of the appellant\/defendant has been
\nconstructed.\n<\/p>\n
\t3.  The case of the respondent\/plaintiff is that he had left a space on
\nthe North of his house measuring North-South width of 5 feet and East-West
\nlength of 42 feet for the convenient enjoyment of his house and the
\nappellant\/defendant, instead of leaving sufficient space on the south of his
\nhouse, left a space to a width of one foot alone; that when the appellant\/
\ndefendant put up a doorway for his house on the South, the respondent\/plaintiff
\nraised an objection to the  same stating that the one foot space left by him
\nwould not be sufficient to have an entrance on the Southern side of his house,
\nwhereupon the appellant\/defendant informed that he would close the southern
\nentrance and  provide entrance on the east; that pursuant to the same, the
\nrespondent\/plaintiff put up a fence on the northern border of the open space
\nleft by him; that the appellant\/defendant tried to remove the fence made up of
\npalmirah leaf stumps (Panaimattaigal) and attempted to use the space left by the
\nrespondent\/plaintiff as an access for reaching his house and that hence, the
\nrespondent\/plaintiff  was constrained to file the suit for the above said
\nrelief.\n<\/p>\n
\t4. The appellant herein\/defendant filed a written statement denying the
\nplaint averments and contending that the respondent’s\/plaintiff’s property was
\ncomprised in S.No.895\/34 whereas the S.No.895\/33 belonged to the
\nappellant\/defendant; that the appellant \/defendant got his property measured and
\nits boundaries fixed by the revenue authorities; that the appellant\/ defendant
\ndid not make any attempt to encroach upon the property of the
\nrespondent\/plaintiff as contended in the plaint; that on the other hand, the
\nrespondent\/plaintiff was making attempts to encroach upon the
\nappellant’s\/defendant’s land which was successfully prevented and that hence,
\nthe suit filed by the respondent\/plaintiff  for injunction should be dismissed.\n<\/p>\n
\t5. The trial court framed necessary issues and tried the suit. In the
\ntrial, four witnesses were examined  as P.Ws 1 to 4 and ExS.A1 to A4 were marked
\non the side of the respondent herein\/plaintiff, Whereas, only one witness was
\nexamined as D.W.1 and three documents were marked as Ex.B1 to Ex.B3 on the side
\nof the appellant herein\/defendant. One more document relating to the survey
\nmeasurements taken for the property of the appellant\/defendant, which was
\nsummoned from the Tahsildar was marked as Ex.X1.\n<\/p>\n
\t6.  The learned trial Judge, on a consideration of evidence, decreed the
\nsuit and granted the relief of permanent injunction as prayed for without costs.
\nThe judgment and decree of the trial court, dated 22.04.2003 were confirmed by
\nthe lower appellate court by its judgement and decree dated 28.04.2006,
\npronounced in A.S.No.106 of 2004, an appeal preferred by the
\nappellant\/defendant. As against the concurrent judgments of the courts below,
\nthe present second appeal has been filed.\n<\/p>\n
\t7. A Second Appeal against the decree of the appellate court shall lie to
\nthe High Court under Section 100 of Civil Procedure Code only on a substantial
\nquestion of law. Unless the appellant is able to show that the Second Appeal
\ninvolves a substantial question of law, the second appeal shall be dismissed at
\nthe stage of admission itself without even issuing notice to the lower appellate
\ncourt or to the respondent. Question of fact cannot be agitated in the Second
\nAppeal, unless a question of fact gets elevated to the position of a substantial
\nquestion of law. In this case, the suit has been decreed and the defence plea of
\nthe appellant\/defendant has been rejected based on the findings of fact recorded
\non appreciation of evidence. None of the findings of fact recorded by the trial
\ncourt and confirmed by the lower appellate court on reappreciation of evidence,
\nis shown to be perverse.\n<\/p>\n
\t8.  The property of the respondent\/plaintiff is with the measurement of
\nNorth-South 18 feet and East-West 44 feet. The same is comprised in S.No.895\/34
\nin Nochi Odaipatti, Kavanoothu Group, Dindigul Taluk. It is also an admitted
\ncase that North of the respondent’s\/ plaintiff’s property lies the property
\nbelonging to the appellant\/defendant and the same also does have the very same
\nmeasurements, namely North-South 18 feet and East-West 42 feet. The property of
\nthe respondent\/plaintiff consists of the area over which their ancestral house
\nwas situated and the area that was purchased subsequently from one Rasu Servai
\nS\/o. Daniel Servai.  The area over which the ancestral house of
\nrespondent\/plaintiff was situated forms the Western part of the entire property
\nof the respondent\/ plaintiff and it measures 18 feet North South and 13 feet
\nEast-West. The property that was lying on the East of the ancestral house of the
\nrespondent\/plaintiff measures North-South 18 feet and East-West 29 feet and the
\nsame was purchased by the respondent\/plaintiff under Ex.A.1 – sale deed. Thus
\nthe respondent\/ plaintiff became entitled to the total area with a measurement
\nof North-South 18 feet and East-West 42 feet. After the purchase of the Eastern
\npart of his property, the respondent\/ plaintiff demolished the old house and put
\nup a new house. Similarly on the Northern part of the plaintiff’s property
\nbelonging to the appellant\/ defendant which also measures North-South 18 feet
\nand East-West 42 feet, the appellant\/defendant put up a construction. All these
\nfacts are admitted and are not disputed.\n<\/p>\n
\t9. The contention of the respondent\/plaintiff is that while putting up the
\nconstruction in his property some 25 years back, he left a space of one foot on
\nthe West 2 feet on the South and 5 feet on the North for his convenient
\nenjoyment of the house property. It is also the contention of the
\nrespondent\/plaintiff that the 5 feet space left on the North of his house was
\nmeant for his own use and on the Northern border of the said 5 feet space, which
\nis also the dividing line of the property of the respondent\/plaintiff and the
\nappellant\/defendant, he had put up a fence using palmyrah leaf stems.\n<\/p>\n
\t10. It is the further contention of the respondent\/plaintiff that while
\nputting up construction in his property, the appellant\/defendant left only a
\nsmall space measuring 1 foot on the South of his house and he wanted to open an
\nentrance on the Southern wall of his house; that the same was objected to by the
\nrespondent\/plaintiff; that the appellant\/defendant informed the
\nrespondent\/plaintiff that he would have an opening on the Eastern side of his
\nhouse which faces the street; that subsequently the appellant\/defendant tried to
\nremove the fence and use the space left by the respondent\/plaintiff on the North
\nof his house claiming the same to be the common lane and that hence, the
\nrespondent\/plaintiff was constrained to file the suit.\n<\/p>\n
\t11. The space measuring East-West 42 feet North-South 5 feet, which
\nsituates on the North of the respondent’s\/plaintiff’s house, is shown to be the
\nsuit property. The same is shown as ABCD and red washed in the plan attached to
\nthe plaint. On the North of the suit property, there is a gap of one foot North-
\nSouth which alone is said to be the space left by the appellant\/defendant in his
\nproperty for his convenience. The crux of the contention of the
\nappellant\/defendant is that the suit property come within S.No.895\/33 belonging
\nto the appellant\/defendant and it does not come within S.No.895\/34 belonging to
\nthe respondent\/plaintiff. However, all the witnesses examined on the side of the
\nrespondent\/plaintiff have categorically stated that out of the total extent
\nmeasuring 36 feet North-South and 42 feet East-West, Northern half belonged to
\nthe appellant\/defendant and the Southern half belonged to the
\nrespondent\/plaintiff and that when dispute arose for the space between the house
\nof the appellant\/defendant and that of the respondent\/plaintiff, a panchayat was
\nheld and pursuant to the decision taken by the panchayat, the total extent of
\nEast-West 42 feet and North-South 36 feet was equally divided and the boundary
\nbetween the defendant’s property and the plaintiff’s property was fixed. Clear
\nevidence has been adduced to the effect that the defendant having left
\napproximately 1. feet to 2 feet space alone tried to have entrance on the
\nSouthern wall of his house; that when the attempt of the appellant\/defendant was
\nresisted by the respondent\/plaintiff, the appellant\/defendant caused a panchayat
\nto be convened and informed the panchayatdhars that he would have the opening of
\nhis house on the East; that despite having given such undertaking he continued
\nto make attempts to trespass into the suit property and that hence, the
\nrespondent\/plaintiff had to file the suit.\n<\/p>\n
\t12. As against the said clear pleading and evidence on the side of the
\nrespondent\/plaintiff, the appellant\/defendant has not chosen to enter the
\nwitness box and depose in support of his case and to show that the suit property
\neither belonged to the appellant\/ defendant or is a common property belonging to
\nboth. On the other hand, an official from the revenue department has been
\nexamined as the sole witness on the side of the appellant\/defendant and through
\nhim the file relating to survey measurement of the appellant’s\/ defendant’s
\nproperty was marked as Ex.X.1. The said evidence, no doubt shows that on the
\napplication of the appellant\/defendant the property of the appellant\/ defendant
\nwas measured and boundary stones for his property were planted. But, both the
\nCourts, after meticulously examining all the documents and the evidence of
\nD.W.1, came to the conclusion that the said document is of no help to the
\nappellant\/defendant to show that the suit property does not belong to the
\nrespondent\/plaintiff absolutely.\n<\/p>\n
\t13. The Courts below have pointed out the fact that in Ex.X1 measurements
\nhave not been noted and that the survey was conducted only in respect of
\nS.No.895\/33 belonging to the appellant\/defendant and not in respect of
\nS.No.895\/34 belonging to the respondent\/plaintiff. There is also lack of
\nevidence to show where lies the boundary stones fixed by the revenue
\nauthorities, who surveyed the land. When clear and cogent evidence was adduced
\non the side of the respondent\/ plaintiff that on the North of his house he had
\nleft a space of 5 feet for his use, which is alone shown as the suit property,
\nand that the mid line between the properties of the respondent\/plaintiff and the
\nappellant\/defendant is on the Northern border of the 5 feet space shown to be
\nthe suit property, the defendant has not let in reliable evidence to show that
\nhis property includes any portion of the suit property.\n<\/p>\n
\t14. As pointed out supra, admittedly the North-South measurement of the
\nrespondent’s\/plaintiff’s property is 18 feet and the North-South measurement of
\nthe appellant’s\/defendant’s property, which lies on the North of the plaintiff’s
\nproperty is also 18 feet. The respondent\/plaintiff has adduced clear evidence to
\nshow the North-South measurement of his property to be 18 feet and it extends up
\nto the Northern border of the suit property. There is no clear and contra
\nevidence on the side of the defendant as to what is the North-South measurement
\nof the defendant’s property, which is available on the North of the suit
\nproperty. All these aspects were properly considered by the Courts below and
\nupon such consideration, the Courts below have arrived at a correct and
\nconcurrent finding that the suit property exclusively belongs to the respondent\/
\nplaintiff and that the appellant\/defendant besides staking claim to it, also
\nmade an attempt to encroach upon the same.  Based on the said findings of fact,
\nthe Courts below have held that the respondent\/ plaintiff is entitled to the
\nrelief of permanent injunction as sought for by the respondent\/ plaintiff. There
\nis no defect or infirmity, much less perversity in the findings of the Courts
\nbelow. As pointed out supra,  the Second Appeal is sought to be filed on a
\nquestion of fact, which is not even shown to be defective or infirm, much less
\nperverse and not on a substantial question of law.  No substantial question of
\nlaw is involved in this Second Appeal. Hence, this Second Appeal deserves to be
\ndismissed at the stage of admission itself.\n<\/p>\n
\t15. Accordingly, the Second Appeal is dismissed.  Consequently, connected
\nM.P.(MD) No. 1 of 2010 is also dismissed. However, there shall be no order as to
\ncosts as the Second Appeal is dismissed at the admission stage itself.\n<\/p>\n
vsn\/sj<\/p>\n
To<\/p>\n
1.  The Principal Subordinate Judge,
\n    Dindigul.\n<\/p>\n
2.  The II Additional District Munsif,
\n    Dindigul.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Yagappan vs A.Arockiasamy Alias Thambi … on 21 February, 2011 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 […]<\/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-177685","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Yagappan vs A.Arockiasamy Alias Thambi ... on 21 February, 2011 - 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\/a-yagappan-vs-a-arockiasamy-alias-thambi-on-21-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Yagappan vs A.Arockiasamy Alias Thambi ... on 21 February, 2011 - 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