{"id":68664,"date":"2008-12-18T00:00:00","date_gmt":"2008-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subbiah-vs-muthulakshimi-on-18-december-2008"},"modified":"2019-03-30T14:17:30","modified_gmt":"2019-03-30T08:47:30","slug":"subbiah-vs-muthulakshimi-on-18-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subbiah-vs-muthulakshimi-on-18-december-2008","title":{"rendered":"Subbiah .. … vs Muthulakshimi on 18 December, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Subbiah .. … vs Muthulakshimi on 18 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 18\/12\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\nS.A.(MD)No.546 of 2000\n\nSubbiah \t\t\t\t.. Defendant\/Respondent\/\n\t\t\t\t\t   Appellant\nVs.\n\nR.Vellaichamy Naicker (Died.)\n\n1.Muthulakshimi\n2.Nagarajan\n3.Rameswari\t\t\t\t.. Plaintiffs\/Appellants\n\t\t\t\t\t   \/Respondents\n\nPRAYER\n\nThis Second Appeal filed under Section 100 of CPC, against the judgment\nand decree dated 17.09.1999 made in A.S.No.105\/1996 on the file of Subordinate\nJudge's Court, Tenkasi, reversing the decree and judgment dated 23.08.1996 made\nin O.S.No.47\/94 on the file of the Court of District Munsif, Shencottach, as far\nas the claim for permanent injunction.\n\n!For Appellant\t ... Mr.K.Periyasamy, Advocate\n^For Respondents ...  Mr.K.Rajkumar, Advocate\n\n:JUDGMENT\n<\/pre>\n
\t\tThis Second Appeal has been directed against the decree and judgment
\nin A.S.No.105 of 1996, on the file of Court of the Subordinate Judge, Tenkasi,
\nwhich had arisen out of a decree and judgment in O.S.No.47\/1994 on the file of
\nthe Court of District Munsif, Shencotta.  The suit was filed by the plaintiff
\nfor declaration of his title in respect of the plaint schedule No.2, which is
\ncomprised in S.No.1 and also for mandatory injunction to remove the cement pipe
\nlaid by the defendant near his eastern wall and also to remove the door and
\nwindows placed on his eastern wall.  Both the Courts below have concurrently
\nheld that the plaintiff is not entitled to the relief of mandatory injunction.
\nThe trial Court has dismissed the suit in entirety.  But on appeal, the first
\nappellate Court, had granted the declaratory relief, as prayed for by the
\nplaintiff in the plaint, which necessitated the defendant to approach this Court
\nby way of this Second Appeal.\n<\/p>\n
\t\t2.The plaint averments in brief sans irrelevant particulars are as
\nfollows:-\n<\/p>\n
\t\tPlaint schedule No.1 property was allotted to the plaintiff’s father
\nin the family partition.  The defendant had constructed his house on the
\nproperty situate on the west of the plaint schedule No.1 property.  The
\ndefendant had also constructed his eastern wall of his house.  Beyond his
\neastern wall, the defendant is not having any land. When the defendant attempted
\nto drain his rain water on the lane east of his eastern wall of his house, there
\narose a dispute between the plaintiff’s father and the defendant.  There was a
\n‘panchayat’ took place between them. Even in the Panchayat it was decided that
\nbeyond the eastern wall of the defendant’s house, he is not entitled to any
\nland.  The defendant has dug a pit about 1 foot depth and has laid the drainage
\npipe alone in the eastern wall of his house, after getting permission from the
\nplaintiff and it was also agreed in the ‘panchayat’ by the defendant that they
\nwill reduce the cement slab window on the eastern side to a required extent.
\nThe ‘panchayat’ between the plaintiff’s father and defendant was entered into an
\nagreement on 30.09.1983 and it was reduced into writing and both the parties
\nhave signed in the said ‘panchayat nama’.  The plaintiff has constructed his
\nhouse in his land. The plaintiff claimed that he is entitled to about 1 foot
\nbeyond his eastern wall of his house and has objected the defendant from
\nconstructing his western wall in the suit property.  The defendant, as per his
\ngift deed, dated 11.9.1979, is entitled to only 15 feet on the east-west
\ndirection.  The eastern wall of the defendant is situated within 15 feet on the
\neast-west measurement on the south. The plaintiff is entitled to east-west 27-
\n1\/2 feet.  But the defendant is not entitled to claim any right in respect of
\nthe property, in which he has laid the pipe line, on the east of his western
\nwall of his house.  Since, the defendant has let in waste water in the property
\neast of his house, the plaintiff has cancelled the license granted in favour of
\nthe defendant.  Hence, the plaintiff has filed the suit for mandatory injunction
\nand also for declaration of his title in respect of the plaint schedule No.2
\nproperty.  The plaintiff has issued a suit notice dated 28.04.1988 through his
\nlawyer.  After receipt of the said notice, the defendant has sent a false reply,
\ndated 04.05.1998.  The defendant cannot claim more than 15 feet east-west
\nallotted to his father under the gift deed, dated 11.09.1979.  The plaintiff’s
\nuncle was one of the panchayators, who signed in the ‘panchayat nama’ mentioned
\nabove.  The plaintiff’s father had executed a mortgage deed in respect of his
\nproperty on 13.12.1965, in favour of one Mohammed Mythin Sahib.  Even in that
\nmortgage deed, the east-west measurement for the plaintiff’s property was shown
\nas 10 carpenter cubic feet. In the plaint plan, the plaintiff has earmarked the
\nportion allotted to the defendant in their family partition dated 30.06.1965.
\nSo, beyond his east-west wall, the defendant is not entitled to 2-5\/8 feet,
\nwhich is scheduled to the plaint, as plaint item No.2, which forms part of the
\nplaint schedule item No.1.  Hence, the suit for declaration of title and for
\nmandatory injunction.\n<\/p>\n
\t\t3.The defendant in his written statement would contend that the
\nplaint schedule item No.2 does not belong to the plaintiff.  The plaint schedule
\nitem No.2 will not form part of the plaint schedule item No.1, beyond the
\neastern wall of the defendant’s house.  The defendant’s uncle Marimuthu Naicker
\nwas entitled to 2-5\/8 feet lane.  In the said lane, the plaintiff is not
\nentitled to any right or title.  But, the plaintiff in his  plaint has also
\nincluded this 2-5\/8 feet on the west of his house clandestinely.  About 2-5\/8
\nfeet lane on the west of plaint schedule No.2 was originally belonged to one
\nArunachala Naicker, who had executed a sale deed in favour of Sankaralinga
\nNaicker on 03.01.1940, for the above said property for whom Arunachala Naicker
\nhad purchased the property again on 08.01.1945, under a sale deed.  Thereafter,
\nthe sons of Arunachala Naicker viz., Subbiah Naicker, Laxmana Naicker and
\nMarimuthu Naicker along with their father Arunachala Naicker, had partitioned
\nthe said property.  In the said partition about 2-5\/8 feet was left to be
\nenjoyed as a lane by Marimuthu Naicker and Laxmana Naicker.  The plaintiff is
\nentitled to east of the above said 2-5\/8 feet lane.  The defendant had
\nconstructed his house in the year 1980 in the plot got under the gift deed,
\ndated 11.05.1979, from Lexmana Nadar.  At the time of constructing his house,
\nthe defendant had placed his windows on his eastern wall and also his sunshade,
\nwhich is projected about 1-1\/2 feet east of his eastern wall.  In the plaint
\nsecond schedule property, the defendant’s door is situated protruding about 1
\nfoot in the lane.  The defendants are letting out the waste water in the plaint
\nschedule property and also drainage water, whereas, the plaintiff is letting out
\nhis drainage water through a pipe laid in the plaint schedule property.  There
\nwas no ‘panchayat’ took place, as alleged in the plaint on 30.09.1993, between
\nthe plaintiff’s father and the defendant and there was no ‘panchayat nama’
\nentered into between the plaintiff’s father and the defendant, as alleged in the
\nplaint.  The alleged document dated 30.09.1993 is a concocted one.    Neither
\nthe defendant’s father nor his uncle or the plaintiff has singed in the said
\ndocument.  The plaintiff is not entitled to 27-1\/2 feet east-west on the south
\nof his property.  The drainage pipe on the east of the defendant’s eastern wall
\nwas not laid with the permission of the plaintiff, as alleged in the plaint.
\nThere is a mistake crept in the measurement for the eastern boundaries of the
\nplaintiff’s property, in the gift deed as well as in the partition deed, dated
\n30.06.1965.  The second schedule property was not enjoyed in common by the
\nplaintiff and the defendant.  The plaintiff is not entitled to any declaration
\nin respect of his plaint schedule item No.2 and he has also not entitled to get
\nan order of mandatory injunction.  Hence, the suit is liable to be dismissed.\n<\/p>\n
\t\t4.On the above pleadings, the learned trial Judge has framed five
\nissues for trial.  The plaintiff has examined himself as P.W.1 besides examining
\nanother witness as P.W.2 and also exhibited Exs.A1 to A6.  On the side of the
\ndefendant, the defendant was examined as D.W.1 and Exs.B1 to B4 were marked.  A
\nCommissioner was appointed by the learned trial Judge to note down the physical
\nfeatures of the plaint schedule property and he has filed Exs.C1 & C3, reports,
\nand Ex.C2 & C4, plans.\n<\/p>\n
\t\t5.On the basis of the available evidence both oral and documentary,
\nthe learned trial Judge finding no reasons to grand a decree in favour of the
\nplaintiff, has dismissed the suit.  Aggrieved by the findings of the learned
\ntrial Judge, the plaintiff has preferred an appeal in A.S.No.105\/1996, before
\nthe learned Subordinate Judge, Tenkasi, who had confirmed the decree in respect
\nof dismissal of the relief regarding mandatory injunction but allowed the appeal
\nin part granting the relief of declaration asked for in the plaint, which
\nnecessitated the defendant to approach this Court by way of this Second Appeal.\n<\/p>\n
\t\t6.The following substantial questions of law are involved for
\ndetermination in this Second Appeal:-\n<\/p>\n
\t\t“1. Whether the Courts below are correct in law in accepting the
\nboundary recitals in documents Ex.A1 and A2, when those documents are not inter
\nparties and inadmissible in evidence under Sections 11, 13(2), 32(3) and 32(7)
\nof the Evidence Act, especially when the executant of the document is not
\nexamined? and<\/p>\n
\t\t2.Whether the lower Court is right in granting the discretionary
\npower of permanent injunction when the plaintiff did not approach the Court with
\nclear hands?”\n<\/p>\n
\t\t7.Substantial Question of Law Nos.1 & 2:-\n<\/p>\n
\t\t(a) Heard the learned counsel appearing for the appellant  as well
\nas the learned counsel appearing for the respondents and considered their
\nrespective submissions.\n<\/p>\n
\t\t(b) The learned counsel appearing for the appellant would contend
\nthat as per Ex.A3, a mortgage deed, executed by the plaintiff’s father on
\n13.12.1965 the east-west measurement for the plaint schedule item No.1 was given
\nas 10 carpenter cubic feet, which comes to 27-1\/2 feet.  But, in the subsequent
\npartition entered into between the family of the plaintiff under Ex.A6, dated
\n05.09.1996, the east-west measurement for the plaint schedule property on the
\nsouth wrongly been mentioned as “11” carpenter cubic feet instead of “10”
\ncarpenter cubic feet.  Hence, the learned  counsel appearing for the appellant
\nwould contend that even though the plaintiff has scheduled item No.1 with an
\neast-west measurement of 10 carpenter cubic feet,  he is not entitled to the
\ndeclaration and injunction as prayed for, because, within his property i.e.,
\nplaint schedule item No.1 he has already constructed his house and the western
\nwall of the plaintiff’s house comes within the measurement given in plaint item
\nNo.1 schedule property and that the plaint schedule 2 property,  even though
\nunder the plaint is said to be within the plaint schedule 1 property, it does
\nnot come within the plaint schedule one property.  Even though a commissioner
\nwas appointed by the trial Court, the learned Advocate Commissioner has not
\nidentified the plaint schedule properties with the help of a taluk Surveyor.
\nWhen the appeal was taken up by this Court, this Court felt that unless the
\nplaint schedule properties are identified with a help of a taluk surveyor, a
\ndecision cannot be rendered.  As per the orders of this Court dated 22.10.2008,
\nthe trial Court was directed to reissue the warrant to the same Advocate
\nCommissioner or to appoint another Advocate Commissioner to identify the plaint
\nschedule Item No.1 property as well as the plaint schedule Item No.2 property in
\naccordance with the measurements given for the property for the first schedule
\nproperty to Ex.A6 and to submit a report.  Accordingly, the Commissioner has
\nfiled Ex.C 5 report and Ex.C6 plan.  It is pertinent to note at this juncture
\nthat in Ex.A6, east-west measurement for the plaint schedule item No.1 property
\nhas wrongly been stated as 11 carpenter cubic feet instead of 10 carpenter cubic
\nfeet, because, even in Ex.A3 mortgage deed, executed by the plaintiff’s father
\nin the year 1965, the east-west measurement for the plaint schedule item No.1
\nproperty was mentioned as only 10 carpenter cubic feet.  Under such
\ncircumstances, on the basis of Ex.A6, the plaintiff cannot claim 11 carpenter
\ncubic feet as east-west measurement on the south of his property.  In Ex.C6,
\nPlan, the Commissioner has given east-west measurement on the south of the
\nplaintiff’s property as 27 feet between the points “D E” and the learned
\nAdvocate Commissioner has also noted the eastern boundary for the plaintiff’s
\nproperty as C-1, but he would state in his report Ex.C5 that the portion “C1 D”
\nmeasuring 1 foot 9 inches has been given by the plaintiff for the formation of
\nthe road, which is situated on the east of his property.  Under such
\ncircumstances, the plaintiff cannot claim that he is entitled to 27-1\/2 feet
\ntowards west from the point “D” i.e., 6 inches beyond the point “A E” in the
\nland, which is situated west of his western wall “A E” of his building.  Even
\nthough 1 foot 9 inches was given by the plaintiff for the formation of the road,
\nhe cannot claim   27-1\/2 feet on the south from the point “D” towards west. It
\nis not the case of the plaintiff that the portion marked as “C-1 D” with an
\nextent of 1 foot 9 inches belongs to the Government or 3rd parties. This 1 foot
\n9 inches portion was given by the plaintiff for the formation of the road, which
\nis situated on the east of the plaintiff’s house.  Now, the learned counsel for
\nthe respondent would state that there is no admission by the plaintiff as to the
\neffect that this 1 foot 9 inches between the point “D C1” in Ex.C6 plan was
\ngiven for laying the road on the east of his house. But Ex.C6, plan, was
\nprepared by the learned Advocate Commissioner, with a help of a Surveyor, who
\nhad fixed the eastern boundary for the plaintiff’s property as “E C1″ measuring
\n28 feet 9 inches.  The learned counsel for the respondent at this juncture would
\npoint out that even as per Ex.A6 measurement, the learned Advocate Commissioner
\nhas fixed the eastern boundary for the plaintiff’s house property as ‘C1” on the
\neast. Even then as per Ex.A6, the plaintiff’s east-west measurement for the
\nproperty is given as 11 carpenter cubic feet to which he is not entitled to as
\nper Ex.A3.  The measurement given in Ex.A6 will not bind the appellant herein
\nbecause Ex.A6 is the partition deed inter se between the members of the
\nplaintiff’s family.  As per Ex.A3, the earliest document of the year 1965, the
\nplaintiff is entitled to only 10 carpenter cubic feet east-west on the southern
\nside.  So, as per Ex.A3, on the southern side east-west, the plaintiff is
\nentitled to only 27-1\/2 feet (10 carpenter cubic feet). But, the plaintiff, as
\nper Ex.C6 plan, was in possession of 28 feet 9 inches out of which he had given
\n1 foot 9 inches for the formation of the road.  At any event, the plaintiff
\ncannot claim any space beyond his western wall of his house, which is marked as
\n“A E” to Ex.C6 plan, by the learned Advocate Commissioner.  So, the plaintiff,
\non the basis of the measurement given in the documents of the defendant, cannot
\nclaim declaration for the plaint schedule item No.2, which is admittedly more
\nthan the extent mentioned under Ex.A3 document.  As rightly held by the trial
\ncourt, the plaintiff is not entitled either for declaration of title or for
\npermanent injunction or for mandatory injunction. Substantial Question of Law
\nNos.1 & 2 are answered accordingly.\n<\/p>\n
\t\t8. In fine, the appeal is allowed and the decree and judgment of the
\nlearned first appellate Judge in A.S.No.105\/1996, on the file of the Court of
\nSubordinate Judge, Tenkasi, is set aside and the suit in O.S.No.47 of 1994 is
\ndismissed.\n<\/p>\n
\t\t9.At this juncture, it is represented that the land which is
\nsituated on the west of the plaintiff’s western wall of his house marked as “A E
\n” by the learned Advocate Commissioner in Ex.C6, Plan, is being enjoyed in
\ncommon, by both the plaintiff and respondent.  The measurement for the said
\ncommon lane, which is earmarked as “A1 A E E1” by the learned Advocate
\nCommissioner is one foot and that the said lane is being enjoyed in common.  If
\nit is so, the parties are directed to enjoy the said lane in common in future
\ntoo.  Ex.C6, Plan, shall form part of the decree. No costs.\n<\/p>\n
Mpk<\/p>\n
To,<\/p>\n
1.  The Subordinate Judge,
\n    Tenkasi.\n<\/p>\n
2.  The District Munsif,
\n    Shencottach.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Subbiah .. … vs Muthulakshimi on 18 December, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18\/12\/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.(MD)No.546 of 2000 Subbiah .. Defendant\/Respondent\/ Appellant Vs. R.Vellaichamy Naicker (Died.) 1.Muthulakshimi 2.Nagarajan 3.Rameswari .. Plaintiffs\/Appellants \/Respondents PRAYER This Second Appeal filed under Section 100 of CPC, […]<\/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-68664","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSubbiah .. ... vs Muthulakshimi on 18 December, 2008 - 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\/subbiah-vs-muthulakshimi-on-18-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subbiah .. ... vs Muthulakshimi on 18 December, 2008 - 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