{"id":53564,"date":"2007-11-13T00:00:00","date_gmt":"2007-11-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-nagendran-vs-virudhunagar-hindu-on-13-november-2007"},"modified":"2014-01-30T09:53:37","modified_gmt":"2014-01-30T04:23:37","slug":"d-nagendran-vs-virudhunagar-hindu-on-13-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-nagendran-vs-virudhunagar-hindu-on-13-november-2007","title":{"rendered":"D.Nagendran vs Virudhunagar Hindu on 13 November, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
D.Nagendran vs Virudhunagar Hindu on 13 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 13\/11\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nS.A.(MD)No.251 of 1997\nand\nC.M.P.(MD).No.2856 of 1997\n\n\nD.Nagendran\t\t\t...\tAppellant\n\n\nVs.\n\n\n1.Virudhunagar Hindu\n  Nadar Senthilkumar\n  Nadar College Paripalana\n  Sabai,\n  through its Secretary\n  Paramanandam,\n  Virudhunagar.\n\n2.M.Patturajan\t\t\t...\tRespondents\n\n\n\nPRAYER\n\n\nSecond Appeal filed under Section 100 of the Code of Civil Procedure,\nagainst the judgment and decree of the learned Additional District Judge,\nTuticorin, passed in A.S.No.33 of 1996, dated 28.08.1996, reversing the judgment\nand decree of the learned Additional District Munsif, Tuticorin passed in\nO.S.No.59 of 1988 dated 13.12.1991.\n\n\n!For Appellant\t\t...\tMr.K.Srinivasan\n\n\n^For Respondents\t...\tMr.M.A.Abdulwahab\n\n\n\n:JUDGMENT\n<\/pre>\n
\t\tThe plaintiff in the original suit is the appellant in the second
\nappeal. O.S.No.59 of 1988 filed by the appellant herein on the file of the
\nlearned Additional District Munsif, Tuticorin was decreed by a judgment and
\ndecree of the said trial Court dated 13.12.1991. On appeal, the said judgment
\nand decree was set aside and reversed by the learned lower appellate Judge,
\nnamely the learned Additional District Judge, Tuticorin, by its judgment in
\nA.S.No.33 of 1996 on the file of the said Court dated 28.08.1996. Hence, the
\nappellant\/plaintiff has brought forth this second appeal.\n<\/p>\n
\t\t2. The original suit in O.S.No.59 of 1988 had been filed on the file
\nof the learned Additional District Munsif, Tuticorin, by the appellant herein
\nagainst the respondents herein for permanent injunction in respect of the suit
\nthird schedule property, for a mandatory injunction directing removal of the
\nrafters put up on the third schedule property, for a mandatory injunction
\ndirecting removal of the superstructures put up by the respondents over the suit
\nsecond schedule property and for a permanent injunction in respect of the suit
\nsecond schedule property.\n<\/p>\n
\t\t3. The averments found in the plaint, in brief, are as follows:\n<\/p>\n
\t\t(i) The appellant\/plaintiff purchased the property described as
\nplaint first schedule property marked as ‘ABCD’ in Ex.A.4-plaint plan under two
\nsale deeds dated 28.11.1979 and 13.12.1979, certified copies of which have been
\nmarked as Exs.A.1 and A.2 respectively. The first respondent\/first defendant is
\nthe owner of the adjoining land on the east. After purchase, the
\nappellant\/plaintiff constructed the compound wall on the east of the first
\nschedule property. While so, the appellant\/plaintiff entered into an agreement
\nwith the first respondent\/first defendant, and as per the agreement, each one
\nshould leave a space of 3\/4 feet for common use. The appellant\/plaintiff put up
\na compound wall on the eastern border of his property leaving space having a
\nwidth of 3\/4 feet on the east of the compound wall. The said compound wall is
\nshown as “A1G1′ and is described as the plaint third schedule property, whereas
\n3\/4 feet space left by the plaintiff on the east of the compound wall marked in
\nthe plaint plan as ‘AA1G1G’ is described as the plaint second schedule property.
\nWhen the appellant\/plaintiff wanted to construct a compound wall in the year
\n1980, he approached the then Secretary of the first respondent\/first defendant
\nand suggested for constructing a common compound wall occupying equal space on
\neither side of the dividing line, but the latter expressed his idea against
\nconstruction of a common wall. On the other hand, he asked the
\nappellant\/plaintiff to construct a separate wall for himself leaving a space of
\n3\/4 feet and promised that the first respondent\/first defendant would also leave
\nan equal space on their side. Thus the appellant\/plaintiff was constrained to
\nput up the compound wall described as plaint third schedule property and marked
\nas ‘A1G1’ in Ex.A.4-plaint plan, leaving a space of 3\/4 feet on the east of the
\ncompound wall. The vacant space left by the appellant on the east of the
\ncompound wall marked in the plaint plan as ‘AA1G1G’ is the plaint second
\nschedule property. The plaint first schedule property is larger property of
\nwhich the second and third schedule properties form part and parcel.\n<\/p>\n
\t\t(ii) While so, the second respondent\/second defendant who got the
\neastern property from the first respondent\/first defendant on lease for running
\na vegetable market, met the appellant\/plaintiff on 28.01.1988 and sought his
\npermission to fix rafters on the ‘A1G1’ wall  (third schedule property), to put
\nup sheds on the east of the said wall.  Despite the fact that the appellant
\nrefused to grant such permission, the second respondent, with the active
\nconnivance of the first respondent, proclaimed that they would fix rafters on
\nthe above said wall to provide support for the roof of the structures to be
\nconstructed on the east of the said wall by trespassing into the second schedule
\nvacant space. In the said circumstances, the suit was filed originally for
\npermanent injunction not to cause disturbance to the peaceful possession and
\nenjoyment of the second and third schedule properties. During the pendency of
\nthe suit, the second respondent put up a shed on the east of the plaintiff’s
\n‘A1G1’ wall. Hence, the plaint was amended for mandatory injunction for the
\nremoval of the encroachment made on plaint second schedule property and for the
\nremoval of rafter placed on the plaintiff’s wall.\n<\/p>\n
\t\t4. The second respondent\/second defendant did not contest the suit
\nand remained exparte. The first respondent\/first defendant alone resisted the
\nsuit by filing written statement. Besides denying the plaint allegations
\nregarding the oral agreement to leave 3\/4 feet on either side of the border for
\nthe common use of the appellant\/plaintiff and the first respondent\/first
\ndefendant, it was contended therein that the former did not leave any space on
\nthe east of his compound wall and on the other hand, the wall was constructed
\nencroaching upon the property of the first respondent\/first defendant by 2 feet
\nand hence the suit should be dismissed.\n<\/p>\n
\t\t5. The trial Court framed necessary issues and conducted trial. At
\nthe conclusion of trial, after considering the evidence both oral and
\ndocumentary adduced on either side, the trial Court held that the plaint third
\nschedule property shown as ‘A1G1’ in the plaint plan was constructed within the
\nproperty of the appellant; that the appellant\/plaintiff had left just 1\/2 feet
\nspace on the east of the said wall at the northern extremity and that the said
\nwall was constructed just on the border of the property of the appellant and the
\nfirst respondent, without leaving any space on the southern extremity. The trial
\nCourt also held that the appellant\/plaintiff had only left a triangular space in
\nbetween the points ‘AA1G1’. By necessary implication, the trial Court has held
\nthat the portion comprised in the triangle ‘A,G1G’ comes within the boundary of
\nthe first respondent\/first defendant. Based on the said findings, the trial
\nCourt allowed the suit and granted the reliefs as prayed for but with a
\nqualifying observation that the suit second schedule property is triangular in
\nshape.\n<\/p>\n
\t\t6. On appeal, the learned Additional District Judge, Tuticorin
\nreversed the said findings, set aside the judgment and decree of the trial Court
\nand dismissed the suit in its entirety with cost by its judgment dated
\n28.08.1996. Hence the second appeal.\n<\/p>\n
\t\t7. This Court heard the submissions made by Mr.K.Srinivasan, learned
\ncounsel appearing for the appellant and also by Mr.M.A.Abdulwahab, learned
\ncounsel appearing for the respondents. The materials available on record
\nincluding the judgments of both the Courts have been perused.\n<\/p>\n
\t\t8. According to the title deeds of the appellant\/plaintiff, the
\neast-west measurement of his property comprised in Survey No.2913 on the north
\nis 244 feet and the east-west measurement on the south is 257 1\/2 feet. The
\neast-west measurement gradually increases from north to south. The
\nappellant\/plaintiff claims to have constructed the wall described as the third
\nschedule property and marked as ‘A1G1’ in Ex.A.4-plaint plan, leaving a space of
\n3\/4 feet on its east. Thus the appellant\/plaintiff claims title also to the
\nproperty shown as ‘AA1GG1’ in the plaint plan measuring 3\/4 feet x  162 feet
\ndescribed as the second schedule property. Referring to the measurements found
\nin the Commissioner’s reports and plans marked as Exs.C.1 to C.4, the learned
\ntrial Judge held that the property of the appellant\/plaintiff includes the
\ntriangular portion ‘AA1G1’ and excludes the triangular portion ‘AG1G’ with
\nreference to Ex.A.4-plaint plan. According to the Commissioner’s second plan
\nmarked as Ex.C.3, the distance between points B and C measured 256 feet and if
\nthe thickness of the eastern wall is added, the total east-west measurement of
\nthe appellant’s\/plaintiff’s property on its southern extremity will come to 257
\n1\/2 feet.  Taking note of such measurement the learned trial Judge has held that
\nthe southern end of suit third schedule was constructed just on the border line
\nwithout leaving any space on the east of it. The learned lower appellate Judge
\nconcurred with the view expressed by the learned trial Judge that the wall shown
\nas the suit third schedule property was constructed on the border of the
\nproperties of the appellant and the first respondent at the point of southern
\nend of suit third schedule wall. The learned lower appellate Judge has also
\nobserved that the first defendant’s property extended upto the point ‘D1’ as the
\nnorth-south measurement of the first defendant’s property, in between the points
\n‘D1’ and ‘I’ happened to be 135 feet. As a necessary corollary the lower
\nappellate Court has held that the appellant has not left any space of the east
\nof his wall even at its northern tip. In view of the said observation, the
\nlearned lower appellate Judge has come to the conclusion that the
\nappellant\/plaintiff has not left any space on the east of the suit wall shown as
\nthe third schedule property and that hence, he was not entitled to any relief in
\nrespect of the portion shown as suit second schedule property and marked as
\n‘AA1G1G’ in Ex.A.4-plaint plan.\n<\/p>\n
\t\t9. The learned counsel for the appellant contended that the learned
\nlower appellate Judge, without assigning proper and convincing reasons and
\nwithout properly considering the Commissioner’s reports and plans marked as
\nExs.C.1 to C.4, had come to an erroneous conclusion that there was no space left
\non the east of the wall shown as ‘A1G1’ in the plaint plan and that the well
\nconsidered finding of the trial Court that the triangular portion comprised
\nwithin the points ‘AA1G1’ belongs to the appellant\/plaintiff should not have
\nbeen disturbed. On the other hand, the learned counsel for the contesting
\nrespondent contended that the finding of fact recorded by the lower appellate
\nCourt, after reappraising the evidence, could not be interfered with in the
\nsecond appeal, unless the said finding could be termed perverse;  that the
\nfinding of the lower appellate Court regarding the suit second schedule property
\nwas supported by tangible evidence; that the preponderance of evidence supported
\nonly the said finding and that the said finding could not be termed erroneous,
\nmuch less perverse.\n<\/p>\n
\t\t10. This Court has gone through the relevant evidence in the light
\nof the rival submissions made by the learned counsel appearing on either side.
\nUpon such a consideration, this Court is of the view that the finding of the
\nlower appellate Court to the effect that the appellant\/plaintiff had not proved
\nto have left any space on the east of the wall described as suit third schedule
\nproperty and marked as ‘A1G1’ in plaint plan cannot be assailed. As per the
\nCommissioner’s second plan and report marked as Exs.C-3 and C-4, the east-west
\nmeasurement of the appellant’s\/plaintiff’s land inclusive of the eastern wall
\nmarked as ‘GG1F1F’ in Ex.C.3 on his southern border comes to 257 1\/2 feet. The
\nsaid measurement agrees with the title deed of the appellant\/plaintiff. The suit
\nsecond schedule wall has been shown as ‘A1G1’ in the plaint plan. The same is
\nfound marked as ‘DGG1D1’ in the Commissioner’s plan Ex.C.3. It shall be
\npertinent to notice that the east-west measurement of the
\nappellant’s\/plaintiff’s property increases gradually from north to south (from
\n244 feet to 257 1\/2 feet). Hence the distance between the corresponding point on
\nthe western border and the point marked as ‘G’ in the Commissioner’s plan Ex.C.3
\nshall definitely be larger than the length of the northern border and lesser
\nthan the southern border. According to the Commissioner’s second report marked
\nas Ex.C.4, the length of the southern border excluding the eastern wall is 256
\nfeet 10 inches. The same shall be the east-west measurement of the plaintiff’s
\nproperty taken from point ‘G’. Therefore, it is quite obvious that the
\nappellant\/plaintiff has not left any space on the east of point ‘G’ marked in
\nEx.C.3.\n<\/p>\n
\t\t11. It is obvious from Ex.C.4-Commissioner’s report that the
\nplaintiff has instructed the Commissioner not to measure the length of northern
\nboundary of his property. The distance between the points marked as ‘I and D1’
\nin Ex.C.3 was found to be 135 feet by the Commissioner. The said measurement
\ntallies with the measurement of the first respondent’s\/first defendant’s
\nproperty. It transpires that the Commissioner was asked to take the mid point of
\nthe wall lying on the eastern border of the first respondent’s\/first defendant’s
\nproperty and thus, the trial Court seems to have come to a conclusion that there
\nwas an excess of 1\/2 feet space and hence, the plaintiff should have left 1\/2
\nfeet on the east of the suit third schedule wall on its northern end. Such
\napproach made by the learned trial Judge seems to be erroneous.\n<\/p>\n
\t\t12. The first respondent\/first defendant has produced the sale deed
\ndated 12.12.1961 concerning the property comprised in T.S.No.2915 which is lying
\non the east of the property of the first respondent’s\/first defendant’s
\nproperty. Clear evidence has been adduced by the first respondent\/first
\ndefendant to the effect that the compound wall lying on the east of the first
\nrespondent’s property which is shown as ‘HOIQ’ in Ex.C.3 exclusively belongs to
\nthe owner of the land that lies on the east of the first respondent’s property.
\nThe same has not been properly contradicted. Therefore, the finding of the lower
\nappellate Court to the effect that the first respondent had not left a space of
\n3\/4 feet on the east of the suit third schedule wall is based on sound reasons
\nand hence, the said finding cannot be termed either defective or infirm. The
\nsame deserves to be confirmed. This Court concurs with the finding of the
\nlearned lower appellate Judge that the appellant\/plaintiff has not substantiated
\nhis case that he is entitled to either the rectangular portion shown in Ex.A.4-
\nplaint plan as ‘AA1G1G’ as claimed by him. This Court also accepts the
\ncorrectness of the finding of the lower appellate Court that the trial Court
\nerred in holding that the appellant\/plaintiff was entitled to a triangular space
\n(AA1G1 as per Ex.A.4-plaint plan). The lower appellate Court was perfectly right
\nin non-suiting the appellant\/plaintiff for any relief claimed in respect of the
\nsuit second schedule property. Hence the judgment and decree of the lower
\nappellate Court, so far as the suit second schedule property is concerned, have
\ngot to be confirmed.\n<\/p>\n
\t\t13. So far as he reliefs claimed in respect of the suit third
\nschedule property, namely the north-south wall of the plaintiff shown as ‘A1G1’
\nin Ex.A.4-plaint plan is concerned, it is quite clear that the
\nappellant\/plaintiff has not encroached upon any portion of the first
\nrespondent’s property and that the said wall was constructed just on the
\ndemarcating line dividing the properties of the appellant\/plaintiff and the
\nfirst respondent\/first defendant. It is also not in dispute that the entire wall
\nwas constructed exclusively by the appellant\/plaintiff. The first
\nrespondent\/first defendant does not claim that the said wall is a common wall
\nbelonging to both. On the other hand, the first respondent\/first defendant has
\ncontended that the said wall was constructed not within the boundaries of the
\nappellant’s\/plaintiff’s property but within the boundaries of the first
\nrespondent\/first defendant’s property by encroaching upon the same by 2 feet.
\nThe thickness of the wall, according to the Commissioner’s report, is 1 feet 4
\ninches. Therefore, the first respondent’s contentions seems to be that the first
\nrespondent is not only entitled to the entire portion on which the suit third
\nschedule property has been erected, but also to an extent of 8 inches on the
\nwest of the said wall. It is quite obvious from the Commissioner’s report that
\nthe east-west measurement of the first respondent’s property on the north is 135
\nfeet, if it is measured from the western edge of the wall found on the east of
\nthe first respondent’s property. If the measurement is taken from the mid point
\nof the said wall, then the measurement shall be even more than the one noted in
\nEx.B.2. Under these circumstances, we can safely come to the conclusion that no
\nportion of the first respondent’s property has been encroached upon and that the
\nentire wall of the appellant\/plaintiff, shown as the suit third schedule
\nproperty, lies within the boundaries of the appellant’s\/plaintiff’s land.
\nTherefore, the first respondent or the second respondent who is the lessee of
\nthe property of the first respondent cannot have any right to place rafters on
\nthe said wall of the appellant\/plaintiff to rest the roof of the construction
\nmade on the east of the said wall. It is not in dispute that the respondents
\nhave fixed rafters on the said wall to support the roof for the structure built
\non the eastern side of the plaint third schedule wall. As such, this Court is of
\nthe considered view that the appellant\/plaintiff shall be entitled to the relief
\nof injunction not to disturb his peaceful possession and enjoyment of the said
\nwall and a mandatory injunction for the removal of the rafters kept resting on
\nthe said wall to support the roof of the structure constructed on the east of
\nthe wall.\n<\/p>\n
\t\t14. The learned lower appellate Judge, under a wrong impression that
\na suit for bare injunction or mandatory injunction cannot succeed, when the
\ntitle in respect of the subject matter of the suit is disputed by the opposite
\nparty. It is pertinent to note that under Section 34 of the Specific Relief Act,
\n1963 the relief of declaration cannot be granted, when further reliefs could
\nhave been asked for and the plaintiff fails to seek such further relief. On the
\nother hand, no such restriction is found anywhere in the Specific Relief Act or
\nany other statutory provision that no injunction could be granted, when the
\ntitle of the plaintiff is disputed by the opposite party. It is trite law that a
\nperson who is in possession can maintain a suit for bare injunction based on
\npossession alone and the party who resists such a suit may be at liberty to show
\nthat no injunction could be granted as he happens to be the real owner. There is
\nno bar for the Courts dealing with a suit for bare injunction to go into the
\nquestion of title incidentally. In this case, it has been proved that the suit
\nwall is confined within the border of the land belonging to the
\nappellant\/plaintiff. Therefore, this Court is of the considered view that the
\nlower appellate Court has committed an error in non-suiting the plaintiff, so
\nfar as the reliefs sought for in respect of the suit third schedule property and
\nthat hence, this Court is definitely  entitled to interfere with the same and
\nset right the defect.\n<\/p>\n
\t\t15. In view of the foregoing reasons, it is hereby concluded that
\nthe judgment and decree of the lower appellate Court reversing the judgment and
\ndecree of the trial Court, so far as the suit second item is concerned, has got
\nto be confirmed. So far as the suit third schedule property is concerned, the
\nlower appellate Court’s judgment and decree is bound to be interfered with,
\nmodified and reversed with the result that the appellant\/plaintiff shall be
\nentitled to the reliefs of permanent injunction and mandatory injunction in
\nrespect of the suit third schedule property alone. However this Court thinks fit
\nto add the following clarification:\n<\/p>\n
\t\tAs it is found that the appellant\/plaintiff has constructed the suit
\nthird schedule compound wall without leaving any space on its east, the
\nappellant\/plaintiff cannot claim any right to use any portion lying on the east
\nof the said wall either for repairing or whitewashing the said wall. Similarly,
\nthe first respondent shall be at liberty to put up a wall touching the suit
\nthird schedule wall without leaving any space and provide support for the roof
\nof the structures of the respondents.\n<\/p>\n
\t\t16. In the result, this Second Appeal is partly allowed and  the
\njudgment and decree of the lower appellate Court reversing the judgment and
\ndecree of the trial Court, so far as the suit second item is concerned, is
\nconfirmed. So far as the suit third schedule property is concerned, the lower
\nappellate Court’s judgment and decree is modified and reversed with the result
\nthat the appellant\/plaintiff shall be entitled to the reliefs of permanent
\ninjunction and mandatory injunction in respect of the suit third schedule
\nproperty alone. It is further clarified that the appellant\/plaintiff cannot
\nclaim any right to use any portion lying on the east of the said wall either for
\nrepairing or whitewashing the said wall. Similarly, the first respondent shall
\nbe at liberty to put up a wall touching the suit third schedule wall without
\nleaving any space and provide support for the roof of the structures of the
\nrespondents. No costs. Consequently, the connected miscellaneous petition is
\nclosed.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The Additional District Judge,
\n  Tuticorin.\n<\/p>\n
2.The Additional District Munsif,
\n  Tuticorin.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court D.Nagendran vs Virudhunagar Hindu on 13 November, 2007 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 […]<\/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-53564","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nD.Nagendran vs Virudhunagar Hindu on 13 November, 2007 - 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\/d-nagendran-vs-virudhunagar-hindu-on-13-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"D.Nagendran vs Virudhunagar Hindu on 13 November, 2007 - 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