{"id":205291,"date":"2006-12-22T00:00:00","date_gmt":"2006-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/azhagarsamy-naicker-vs-azhagiriswamy-naicker-on-22-december-2006"},"modified":"2017-08-21T22:18:45","modified_gmt":"2017-08-21T16:48:45","slug":"azhagarsamy-naicker-vs-azhagiriswamy-naicker-on-22-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/azhagarsamy-naicker-vs-azhagiriswamy-naicker-on-22-december-2006","title":{"rendered":"Azhagarsamy Naicker vs Azhagiriswamy Naicker on 22 December, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Azhagarsamy Naicker vs Azhagiriswamy Naicker on 22 December, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 22\/12\/2006\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE V. DHANAPALAN\n\nS.A. No.870 of 1995\n\nAzhagarsamy Naicker\t\t.. Appellant\n\nVs\n\nAzhagiriswamy Naicker\t\t.. Respondent\n\n\n\tSecond Appeal filed under Section 100 of Code of Civil Procedure against\nthe judgment and decree dated 01.12.1993 made in A.S. No.25 of 1992 on the file\nof the District Judge, Kamarajar District at Srivilliputtur confirming the\njudgment and decree dated 17.08.1992 passed in O.S. No.285 of 1988 on the file\nof the District Munsif, Aruppukkottai.\n\t\t\n!For appellant\t...\tMr. J. Parekh Kumar\n\t\t\tfor M\/s. P. Srinivas\n^For respondent\t...\tMr. S. Kadarkarai\n\n\n:JUDGMENT\n<\/pre>\n
\tThe unsuccessful plaintiff in both the Courts below is the appellant
\nherein.  This appeal is directed against the judgment and decree of the District
\nJudge, Kamarajar District at Srivilliputtur in A.S. No.25 of 1992, confirming
\nthe decreeing of the suit for declaration and mandatory injunction.\n<\/p>\n
\t2.\tThe plaintiff filed the suit for declaration declaring that the suit
\nwall is his exclusive property and for mandatory injunction directing the
\ndefendant to remove the encroachments made by him on the suit wall.  According
\nto the plaintiff, the suit wall and the adjacent house along with vacant site,
\nbelong to him.  Originally, the above said properties belonged to one Solai
\nAlagiri Naicker who executed a registered will dated 27.08.1948 favouring the
\nplaintiff’s mother by name Kothaiammal on condition that after his and his
\nwife’s life-time, Kothaiammal would get the properties on payment of Rs.1,150\/-
\neach to her three sisters.  After the demise of Solai Alagiri Naicker followed
\nby his wife, the three sisters executed a registered release deed dated
\n20.12.1954 in favour of the plaintiff’s mother after which the plaintiff got the
\nsaid properties under a registered partition deed dated 18.10.1987.  The said
\nproperties in the partition deed are mentioned as “A” schedule and the property
\nof the defendant is located in the western side of the suit wall.  When the
\nplaintiff renovated his property, the defendant had raised objection proclaiming
\nthat the suit wall is a common wall.  Furthermore, the defendant had also put up
\na wooden rafter on the suit wall, aggrieved by which the plaintiff had filed the
\nsuit.\n<\/p>\n
\t3.\tOn the other hand, the defendant who is the respondent herein, by
\nfiling a written statement, disputed the claims of the plaintiff.  According to
\nhim, the suit wall is enjoyed by him and his ancestors as a common wall and the
\nroof rafters and tiles of his house were inserted and built in the common wall
\nand this has been the position for more than 60 years and hence, the suit has to
\nbe dismissed.\n<\/p>\n
\t4.\tThe Trial Court, on consideration of the oral and documentary
\nevidence of both sides and framing five issues, arrived at a conclusion that the
\nsuit wall is a common wall and accordingly dismissed the suit.  The lower
\nappellate court, on the appeal filed by the plaintiff, by endorsing the finding
\nof the Trial Court, upheld the judgment and decree of the Trial Court.
\nAggrieved by the concurrent findings of the Courts below, the plaintiff has
\npreferred the present Second Appeal.\n<\/p>\n
\t5.\tOn 21.07.1995, this Court admitted this Second Appeal on the
\nfollowing substantial questions of law:\n<\/p>\n
\ta.\tWhether in law, common rights could be claimed or acquired by
\nprescription in respect of the entirety of exclusive wall by recent insertion
\nfor support in a portion of the plaintiff’s main wall which is located very much
\nwithin the plaintiff’s land?\n<\/p>\n
\tb.\tWhether the courts below erred in law in dismissing the suit for
\ndeclaration of title, when admittedly the suit wall is the plaintiff’s main wall
\nand situate within the boundaries of the plaintiff’s property as described in
\nEx.A.1, Registered Will, Ex.A.2, Release Deed, Ex.A.3, Partition Deed and Town
\nSurvey Plan?\n<\/p>\n
\tc.\tWhether in law, adverse inference against the defendant could have
\nbeen drawn under Section 114(g) of the Indian Evidence Act, 1872, when the
\ndefendant wilfully declined to produce the documents of title in his custody in
\nrespect of his property? and<\/p>\n
\td.\tWhether the courts below erred in law in holding that the defendant
\nhas acquired common right by prescription and the entire suit wall by the recent
\naction of inserting rafters when the defendant has failed to establish his plea
\nof acquisition of common right by sufficient oral and documentary evidence?\n<\/p>\n
\t6.\tMr. J. Parekh Kumar, learned counsel appearing for the
\nappellant\/plaintiff would contend that the suit was filed based on the
\nregistered title deed under Exs.A.1 to A.3 and Town survey field sketch Exs.A.5
\nto A.6 and the Trial Court, without considering the same, has dismissed the suit
\nbased on the Commissioner’s Report and the lower appellate court has erroneously
\nupheld the judgment and decree of the Trial Court.  He would further contend
\nthat both the courts below have erred in law in holding that the suit wall is a
\ncommon wall, when admittedly, the defendant has no title whatsoever over the
\nsuit wall and particularly, when he has failed to establish his plea of
\nacquisition of right by adverse possession by sufficient oral and documentary
\nevidence.  It would be his further contention that the courts below ought to
\nhave drawn adverse inference and decreed the suit by presuming that the suit
\nwall is exclusively belonging to the plaintiff since the defendant has failed to
\nproduce the original documents relating to his house.  At last, it would be his
\nstrenuous contention that the suit ought to have been decreed when the wall is
\nsituated well within the boundaries of the plaintiff’s property.\n<\/p>\n
\t7.\tIn support of his contention that the onus is on the
\nrespondent\/defendant to prove that the suit wall is a common wall, the counsel
\nfor the appellant has placed reliance on:\n<\/p>\n
\ti.\ta decision of this Court reported in 2004 (1) CTC 109 in the case of
\nBama vs. Rikiyal Bivi and the<\/a> relevant paras read as under: (paras 6 & 7)
\n\t“. . .If the defendant admits material allegations in the plaint, the
\ndefendant may begin.  However, the plaintiff must prima facie satisfy that there
\nare reasons to believe that particular thing is within the knowledge of the
\ndefendant.  If the denial by the defendant is without substance in view of the
\nother admitted facts, the onus lies on the defendant and he must be directed to
\nlead the evidence first.\n<\/p>\n
\tUnder Section 102 of the Indian Evidence Act, the burden of proof rests on
\nthe party, who would fail, if no evidence at all were given on either side.
\nWhen a person seeks aid of a Court of equity to enable him to get rid of the
\neffect of deeds which he has executed, the burden of proof is on him to make out
\na case, such as imposition or any other person for such intervention.\n<\/p>\n
and<\/p>\n
\tii.\tyet another decision of this Court reported in 2000 (II) CTC 184 in
\nthe case of K. Andi Reddiar vs. Ovu Ammal &<\/a> 5 others (paras 26, 27, 31 and 32)
\n\tIn the present case, the execution of the will is admitted as well as the
\ntestamentary capacity and the keeral mark as well as the LTI of the deceased had
\nbeen supported by sufficient evidence and thus, the onus has been discharged.
\nWhen the defendants allege undue influence or fraud, or coercion, the onus is on
\nthem to prove the same.. . .\n<\/p>\n
\tExcept setting out certain averments, the defendants have not proved their
\nplea that the Will was brought about by undue influence and coercion exercised
\nby the plaintiff.  As rightly pointed out, the first appellate court had caste
\nthe onus on the plaintiff to prove the negative namely, that there was no undue
\ninfluence or coercion on the deceased.  In fact, D.W.2, identifying witness had
\ndeposed that the plaintiff was not at all present anywhere near and his
\nadmission is fatal.  There is no iota of evidence to hold that the plaintiff had
\nexercised undue influence or coercion on the deceased testator.  As already
\npointed out, the sound disposing state of mind of the testator was proved and
\nadmitted as well.  The execution of the Will has been admitted by the first
\ndefendant D.W.1.\n<\/p>\n
\t. . .\tThe onus is on the defendants to prove that there was undue
\ninfluence or the testator was coerced as pleaded in paragraph 4 and 5 of the
\nwritten statement.\n<\/p>\n
\t. . .In the light of the decision of the Supreme Court, this Court holds
\nthat the conclusion of the first appellate court cannot be sustained in law as
\nit is contrary to the decision of the Apex Court and this Court while setting
\naside the finding of the appellate court as vitiated and perverse, confirms the
\nfindings of the Trial Court that the Will was executed by the deceased testator
\nin a sound and disposing state of mind and it is true and last Will of testator
\nNagu Reddiar.”\n<\/p>\n
\t8.\tOn the aspect of adverse inference, reliance has been placed by the
\ncounsel for the appellant on
\n\ti.\ta decision of this Court reported in 2004 (1) CTC 105 in the case of
\nGuptha Enterprises, Sydenhams Road, Madras – 12 vs. Irusappan & another wherein
\nit was held as follows:(paras 7 & 8)
\n\t“. . . In such circumstances, without considering this aspect, the learned
\nJudge ought not to have passed the order in favour of the workman.  In this
\nconnection, it is pointed out that even though the workman has not produced the
\nrelevant records to establish this fact, however, the workman issued a notice
\ndated 11.04.1987 to the appellant.  In spite of the receipt of the said notice,
\nthe appellant has not come forward to issue any reply repudiating the
\nallegations referred in the said notice.  It is pointed out that the burden lies
\nonly on the appellant to establish that the workman was not at all employed
\nunder them. . . Since the appellant has not come forward to produce the relevant
\ndocuments to establish this fact, considering the circumstances of the case,
\nwhile deciding the matter, the learned Judge has taken an adverse inference and
\naccordingly, the learned Judge came to the conclusion that the first respondent
\nwas a workman under the appellant and sustained injuries while he was working
\nunder them.\n<\/p>\n
\tIn the light of the discussion held above, we are not inclined to allow
\nthis appeal in favour of the appellant.  Moreover, the appellant has not
\nestablished his case by producing the relevant documents before the concerned
\nauthority.  In such circumstances, we are satisfied with the reasons stated by
\nthe learned Judge while allowing the Civil Miscellaneous Application.  We do not
\ntherefore think it proper to interfere with the order passed by the learned
\nJudge of this Court and accordingly, this appeal is dismissed.  Consequently,
\nconnected C.M.Ps. are also dismissed.\n<\/p>\n
and
\n\tii.\ta Division Bench of this Court reported in 1995 (I) CTC 556 in the
\ncase of Vijay Lalchand HUF & another vs. K.M. Lulla HUF:
\n\t“A question will naturally arise whether the first plaintiff was put in
\npossession by the defendant under the agreement.  The report of the Advocate
\nCommissioner shows that the plaintiffs have stored the building materials on the
\ndisputed property and also erected two huts which, according to the plaintiffs,
\nare used by the men appointed by the second plaintiff Trust and the labourers,
\nwho are employed for the construction activities.  . .  The fact that the
\ndefendant had applied for Income Tax Clearance Certificate under Section 230-A
\nof the Income Tax Act and obtained the same even on 30.08.1991 shows that the
\nparties intended to give effect to the oral agreement for sale and they had
\nacted on it.  The defendant has no explanation for not producing the draft sale
\ndeed which was filed before the Income Tax Officer along with the application
\nfor Clearance Certificate.  If that document had been produced, it would have
\nbeen seen that there is a recital with regard to possession of the property.  If
\nthere is no such a recital, the defendant would have produced the certificate.
\nAn adverse inference can be drawn against the defendant for the non-production
\nof the said document.”\n<\/p>\n
\t9.\tPer contra, Mr. S. Kadarkarai, learned counsel for the
\nrespondent\/defendant would contend that the Courts below have rightly dismissed
\nthe case of the appellant\/plaintiff by relying on the evidence of P.W.1, the
\nplaintiff himself and Ex.A.3, partition deed which describes that the suit wall
\nis a common property and also the report of the Advocate Commissioner.  He would
\nfurther contend that the appellant\/plaintiff, having filed the suit for
\ndeclaration and mandatory injunction, should have proved his case since onus of
\nproof lies only on him and not on the defendant.  One more point advanced by Mr.
\nKadarkarai is that there is no ground made out for interfering with the
\nconcurrent findings of the courts below.\n<\/p>\n
\t10.\tThe counsel for the respondent, in support of his submission that
\nthe High Court cannot interfere with the concurrent findings of the Courts below
\nby re-appreciating the evidence, unless extremely warranted, has placed reliance
\non a judgment of the Supreme court reported in (1996) 6 SCC 166 in the case of
\nNavaneethammal vs. Arjuna Chetty<\/a> (paras 11 and 21)
\n\t“This Court, time without number, pointed out that interference with the
\nconcurrent findings of the Courts below by the High Court under Section 100 CPC
\nmust be avoided unless warranted by compelling reasons.  In any case, the High
\nCourt is not expected to reappreciate the evidence just to replace the findings
\nof the lower courts.\n<\/p>\n
\tIn our considered view, the lower appellate court has fairly appreciated
\nthe evidence in the above background and has reached the conclusion that the
\nsuit was not barred by limitation.  Even assuming that another view is possible
\non a reappreciation of the same evidence, that should not have been done by the
\nHigh Court as it cannot be said that the view taken by the first appellate court
\nwas based on no material.\n<\/p>\n
\t11.\tTo add strength to his case that in a suit for declaration, the onus
\nof proof is on the plaintiff, the counsel for the respondent\/defendant has
\nrelied on:\n<\/p>\n
\ti.\ta judgment of this Court reported in 1978 (1) MLJ 386 in the case of
\nK. Mohideen Ibrahim vs. M. Muhammed Abdullah (Para<\/a> 5)<\/p>\n
\t“. . . This finding is based on evidence, oral and documentary, adduced by
\nboth sides.  . . . Therefore, on facts, the plaintiff is not entitled to the
\ninjunction prayed for.  The plaintiff has not established that there was such a
\nsubstantial deprivation of light and air to his house as to render the
\noccupation of his house uncomfortable, according to the ordinary notions of
\nmankind and as beneficially as before.”\n<\/p>\n
and
\n\tii.\tyet another judgment of this Court reported in 2001 (3) CTC 584  in
\nthe case of Azhagar & 2 others vs. Roman Catholic Deva Arogyamatha Koil  through
\nits Bishop Sebasthian, Thiruvallur Village, Pudur Post, Ilayankudi Taluk,
\nPasumpon Muthuramalingam Dt. (para 6)<\/p>\n
\tIn a suit for declaration, the onus is on the plaintiff to prove his title
\nas well as his claim.  The case of the plaintiff is that the area south of the
\nsuit property (only the compound wall is shown as suit property) is a public
\npathway; over which every person has got a right of ingress and egress.  To
\nprove that, there is no evidence whatsoever on the part of the plaintiff.  No
\nrevenue records or survey records or Field Measurement Books have been filed to
\nprove that it is the common pathway.  The only document filed on the side of the
\nplaintiff, the settlement deed, Ex.A.1 and sale deeds of the third parties who
\nare not parties to the suit.  In these documents, the area south of the compound
\nwall has been referred as public pathway.  This is not sufficient to prove that
\nthe area south to the suit compound wall is a public pathway.”\n<\/p>\n
\t12.\tI have heard the learned counsel on either side and the reliance
\nmade by them and have also carefully considered the materials available on
\nrecord.\n<\/p>\n
\t13.\tFrom a perusal of Ex.A.3, partition deed relied on by the plaintiff
\nhimself, it is clearly seen that the suit wall is described as a common wall.
\nFurther, in the sketch submitted by the Advocate Commissioner, the plaintiff’s
\nhouse is marked as “G,H,I,J,K,L,D,C” and the defendant’s house is marked as
\n“M,N,O,P” and the suit wall is marked as “A,B,C,O,D,E,F” in red.  In his report,
\nthe Advocate Commissioner has categorically held that there are two windows in
\nthe suit wall, each one of them being in use by the plaintiff and defendant.
\nThis itself is a clear indication to prove that the suit wall is a common
\nproperty.  The Advocate Commissioner has also held that there is a cement tank
\nadjoining the suit wall and the same is rather very old as also the wall in the
\nportion marked as “G,H”.  It is further stated in his report that on the
\nsouthern side of the suit wall, the defendant’s stove is located and some rows
\nof tiles are fixed in the suit wall and they are also very old.  That apart, the
\nappellant\/plaintiff himself has admitted in his deposition that some rows of
\ntiles of the defendant’s house had been inserted in the suit wall. In that view
\nof the matter, the contention of the plaintiff that the rafters were recently
\ninserted in the suit wall does not have legs to stand. Also, the categorical
\nfinding of the Courts below that since the plaintiff had raised a wall adjacent
\nthe window used by the defendant, the latter had raised objection for the said
\nconstruction, is acceptable as otherwise, there is no necessity for the
\ndefendant to raise objection in respect of construction by the plaintiff.\n<\/p>\n
\t14.\tAlso, I am of the considered view that the judgments of this Court
\n(supra) relied on by the counsel for the respondent\/defendant in which it has
\nbeen categorically held that the onus of proof is on the part of the plaintiff
\nin a suit seeking declaration of title, has much relevance to the facts of the
\ncase on hand.  In the instant case, admittedly, the appellant\/plaintiff has
\ntaken no pain to establish his case that the suit wall is his exclusive
\nproperty.\n<\/p>\n
\t15.\tFurther, as held by the Supreme Court in its decision reported in
\n(1996) 6 SCC 166 (supra) which is relied on by the counsel for the
\nrespondent\/defendant, I virtually do not find any reason to interfere with the
\nconcurrent findings of the Courts below in view of the fact that they have
\ndismissed the case of the plaintiff only after duly analysing both the forms of
\nevidence.  That apart, no need, whatsoever, has arisen before this Court to re-
\nappreciate the evidence to hold in favour of the appellant\/plaintiff.\n<\/p>\n
\t16.\tThe substantial questions of law as to (i) whether common rights
\ncould be claimed or acquired by prescription when there is a wall by recent
\ninsertion, (ii) whether the suit wall is the plaintiff’s main wall, (iii)
\nwhether adverse inference can be drawn against the defendant when he has failed
\nto produce his documents of title and (iv) whether the courts below have erred
\nin holding that the defendant has acquired common right by prescription, are not
\nsupported by any evidentiary value.  From the discussion made above, it is clear
\nthat the plaintiff has not made out any prima facie case, particularly, when the
\nburden of proof rests on the party who would claim relief and in this case, the
\nplaintiff, and this being the case, the substantial questions of law involved in
\nthis appeal are answered in the above terms.\n<\/p>\n
\t16.\tIn view of the aforesaid discussion and the rulings of the Supreme
\nCourt as well as this Court and also the settled principles of law that the
\nscope of this Court is very much limited in interfering with the concurrent
\nfindings of the Courts below, unless and otherwise extremely warranted, I hold
\nthat both the Courts below have rightly dismissed the case of the plaintiff,
\nwhich is devoid of any merit and in such a view of the matter, I have no
\nhesitation in confirming the concurrent findings of the Courts below.\n<\/p>\n
\tIn fine, the appeal stands failed and is accordingly dismissed.  No costs.\n<\/p>\n
To<\/p>\n
1.\tThe District Judge, Kamarajar District, Srivilliputtur\n<\/p>\n
2.\tThe District Munsif, Aruppukkottai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Azhagarsamy Naicker vs Azhagiriswamy Naicker on 22 December, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22\/12\/2006 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN S.A. No.870 of 1995 Azhagarsamy Naicker .. Appellant Vs Azhagiriswamy Naicker .. Respondent Second Appeal filed under Section 100 of Code of Civil Procedure against […]<\/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-205291","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAzhagarsamy Naicker vs Azhagiriswamy Naicker on 22 December, 2006 - 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\/azhagarsamy-naicker-vs-azhagiriswamy-naicker-on-22-december-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Azhagarsamy Naicker vs Azhagiriswamy Naicker on 22 December, 2006 - 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