{"id":69396,"date":"2008-04-25T00:00:00","date_gmt":"2008-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramalingam-pillai-vs-ammani-ammal-on-25-april-2008"},"modified":"2017-03-23T02:56:00","modified_gmt":"2017-03-22T21:26:00","slug":"ramalingam-pillai-vs-ammani-ammal-on-25-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramalingam-pillai-vs-ammani-ammal-on-25-april-2008","title":{"rendered":"Ramalingam Pillai vs Ammani Ammal on 25 April, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Ramalingam Pillai vs Ammani Ammal on 25 April, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/04\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\t\t\t\t\t\t\t\t\nS.A.(MD).No.1352 of 1994\n\nRamalingam Pillai\t\t\t\t\t      .. Appellant\n\nVs.\n\n1.Ammani Ammal\n2.Gopal\n3.Thirupathi\n4.Mahalakshmi\n5.Pushpa\t  \t\t\t\t              .. Respondents\n\n\n\tSecond appeal filed against the judgment and decree dated 20.07.1994 made\nin A.S.No.296 of 1991 on the file of the II Additional District Court,\nTiruchirapalli reversing the judgment and decree dated 22.02.1991 made in\nO.S.No.222 of 1985 on the file of the District Munsif Court, Thuraiyur.\n\n!For Appellant  ... Mr.T.R.Rajaraman\n\n^For Respondents... Mr.K.S.Vamsridhar \t\t\t\t\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is directed against the judgment and decree of the
\nlearned II Additional District Judge, Tiruchirappalli, dated 20.07.1994 made in
\nA.S.No.296 of 1991 reversing the judgment and decree of the trial Court, namely
\nCourt of District Munsif, Thuraiyur, dated 22.02.1991, in O.S.No.222 of 1985.\n<\/p>\n
\t2. One Narayanasamy Pillai, the deceased first plaintiff filed the
\nOriginal suit on the file of the District Munsif, Thuraiyur for the relief of
\nmandatory injunction and damages. During the pendency of the suit, the said
\nNarayanasamy Pillai died and hence the respondents 1 to 5 herein were impleaded
\nas plaintiffs 2 to 6 in the suit.\n<\/p>\n
\t3. The suit was filed based on the contention that the suit property shown
\nas “A A1 A2 A3 C C1” in the plaint plan was purchased by the deceased first
\nplaintiff, when the same was a thatched house, under a sale deed dated
\n16.11.1963; that the east-west measurement of the suit property was 12 feet;
\nthat the appellant\/defendant was the owner of the property lying on the west of
\nthe north south wall marked as “AC” in the plaint plan; the said wall was
\ninitially claimed by the deceased first plaintiff in a former suit (O.S.No.17 of
\n1977) to be a common wall belonging to him and the appellant\/defendant;  that
\nthe said suit was dismissed upholding the contention of the appellant\/ defendant
\nthat the said wall exclusively belonged to him; and that however in the said
\nformer suit there was a clear admission made by the appellant\/defendant that he
\nhad no right over the property lying on the east of ‘AC’ wall.\n<\/p>\n
\t4. It was the further contention raised in the plaint that out of vendetta
\nbecause of the former suit, the appellant\/defendant demolished a portion of the
\nwall marked as ‘AA1’ in the plaint plan to a width of 1 feet 6 inches in the
\neast-west; that he also demolished the construction at point C1 and removed the
\ndoor and door frame fixed in between points C1 and A7 as per the plaint plan;
\nthat by the said high-handed act of the appellant\/defendant, the plaintiffs
\nsuffered a loss to the tune of Rs.1,000\/- and that hence the appellant\/defendant
\nshould be directed to restore the demolished wall and fix the wooden door frame
\nand should also be directed to pay a compensation of Rs.1,000\/-.\n<\/p>\n
\t5. The suit was resisted by the appellant\/defendant by filing a written
\nstatement denying the plaint allegations regarding the alleged demolition made
\nand loss caused to the respondents\/plaintiffs by the appellant\/defendant. It was
\nalso contended therein that, after the deceased first plaintiff failed to
\nsucceed in the former suit, namely O.S.No.17 of 1977 in which the ‘AC’ wall was
\nclaimed to be a common wall belonging to the appellant\/defendant and the
\ndeceased first plaintiff, he preferred an appeal and the same was also dismissed
\nand that when the appellant\/defendant levied execution for recovery of cost
\nawarded in the former suit, the deceased first plaintiff himself demolished a
\nportion of the construction in his house and filed the present suit at the
\ninstigation of his wife.\n<\/p>\n
\t6. After framing necessary issues the suit was tried. One witness was
\nexamined as PW1 and 11 documents were marked as Ex.A1 to Ex.A12 on the side of
\nthe respondents\/plaintiffs. Two witnesses were examined as DW1 and DW2 and six
\ndocuments were marked as Ex.B1 to Ex.B6 on the side of the appellant\/defendant.
\nAfter considering the oral and documentary evidence in the light of the
\narguments advanced on either side, the learned District Munsif, Thuraiyur came
\nto the conclusion that the appellant\/defendant had neither demolished any wall
\nnor removed the door frame as contended by the plaintiffs and that the
\ndemolition of the construction and the removal of the door frame were made by
\nthe deceased first plaintiff. Arriving at the said conclusion, the learned
\nDistrict Munsif, Thuraiyur dismissed the suit with costs.\n<\/p>\n
\t7. Aggrieved by the said judgment and decree of the trial Court dated
\n22.02.1991, the respondents\/plaintiffs preferred an appeal on the file of the
\nlearned II Additional District Judge, Tiruchirapalli in A.S.No.296 of 1991. The
\nlearned II Additional District Judge, Tiruchirapalli allowed the appeal, set
\naside the judgment and decree of the trial Court and decreed the suit as prayed
\nfor with costs by a judgement dated 20.07.1994. Challenging the said judgement
\nand decree of the learned II Additional District Judge, Tiruchirapalli, the
\npresent Second Appeal has been brought forth by the appellant herein\/defendant.\n<\/p>\n
\t8. At the time of admission of the second appeal, the following
\nsubstantial questions of law were framed;-\n<\/p>\n
\t“1) Is not the learned II Additional District Judge wrong in granting a
\ndecree for mandatory injunction as prayed for without even deciding the rights
\nand interests of both parties with reference to the disputed property?\n<\/p>\n
\t2) Is not the learned II Additional District Judge wrong in reversing the
\njudgment of the trial Court contrary to the principles laid down in AIR 1951 SC
\n120?\n<\/p>\n
\tAfter hearing arguments, the following question has been framed as 3rd
\nsubstantial question of law:-\n<\/p>\n
\t3) Whether the finding of the lower appellate Court regarding the plaint
\nallegations that the wall was demolished and the door frame was removed by the
\nappellant\/defendant on 02.06.1985 is perverse?”\n<\/p>\n
\t9. This Court heard the submissions made by the learned counsel for the
\nappellant as well as the respondents.\tThe materials available on record were
\nalso perused.\n<\/p>\n
\t10. Advancing arguments on behalf of the appellant, Mr.T.R.Rajaraman, the
\nlearned counsel for the appellant, submitted that a decree for mandatory
\ninjunction has been granted as prayed for without even deciding the title of
\nboth the parties with reference to the disputed property; that the lower
\nappellate Court allowed the appeal and decreed the suit merely on surmises and
\nconjectures, when the respondents\/plaintiffs had not even discharged their
\ninitial burden of proving the actual demolition of the structure by the
\nappellant\/defendant; that the lower appellate Court committed an error in
\nreversing the judgment of the trial court contrary to the principles laid down
\nby the Honourable Supreme Court in AIR 1951 SC 120; that the learned II
\nAdditional District Judge should have drawn adverse inference against the
\nplaintiffs for non-examination of an important independent witness to prove
\ntheir case; that the lower appellate Court committed an error of law in
\nrejecting the documentary evidence in Ex.B5 in the absence of any contrary
\nevidence; that the learned lower appellate Judge without appreciating the fact
\nthat the plaintiffs had not produced any evidence regarding the details of loss
\ncaused to them, directed payment of compensation of Rs.1,000\/- on surmises; that
\nthe well considered judgment of the trial court should not have been disturbed
\nand reversed by the lower appellate Court; that viewed from any angle, it shall
\nbe patent that the lower appellate Court had given a perverse finding and that
\nhence the judgment and decree of the lower appellate Court should be set aside
\nand the judgment and decree of the trial Court should be restored.\n<\/p>\n
\t11. Per contra, the learned counsel for the respondents contended that the
\nlower appellate Court had assigned valid reasons for the conclusion arrived at
\nin the appeal; that the lower appellate Court being the final court of appeal on
\nfacts, was duty bound to re-apprise the evidence and in fact it did so and only
\nafter doing so, it came to the conclusion that the demolition of the
\nconstruction and removal of the door-frame were made by the appellant
\nherein\/defendant as contended by the plaintiffs; that the said finding of fact
\nby the lower appellate Court, by no stretch of imagination, could be termed
\nperverse and that hence, this Court could not interfere with the same in this
\nsecond appeal.\n<\/p>\n
\t12. The first and foremost contention of the appellant\/defendant is that
\nthe prayer for mandatory injunction should not have been granted by the lower
\nappellate court for the restoration of the demolished wall and door-frame to
\ntheir original position without even deciding the question of title and right of
\nparties regarding the land over which the wall and door-frame had been erected
\nbefore their removal.  Hence the first substantial question of law has been
\nframed. Even though, the appellant\/defendant seems to have taken a stand that
\nthe respondents\/plaintiffs were not entitled to an east-west measurement of 12
\nfeet on the east of ‘AC’ wall exclusively belonging to the appellant\/defendant,
\nthere is clear evidence to the effect that the appellant\/defendant had admitted
\nin the former suit that he had no claim over the area lying on the east of ‘AC’
\nwall. This has been referred to in the judgement of the lower appellate Court.
\nIt is not the case of the appellant\/ defendant that the wall allegedly
\ndemolished by the appellant\/defendant did not belong to respondents \/plaintiffs.
\nQuestion of title regarding the land on which such a wall had been erected
\nbefore demolition was not an issue raised in the suit. It is also not the case
\nof the appellant\/defendant that he removed the said wall because the same had
\nbeen put up by the respondents\/plaintiffs over the property belonging to the
\nappellant\/defendant. Therefore, there was no occasion or necessity to decide the
\nquestion of title regarding the land over which the demolished wall had been
\nerected. Further more, as pointed out supra, there is an admission made by the
\nappellant\/defendant in the previous suit that he did not claim any right on the
\neast of ‘AC’ wall. Therefore, the challenge made to the judgement of the lower
\nappellate Court, based on which the above mentioned first substantial question
\nof law has been framed, cannot be countenanced.  Accordingly, the said
\nsubstantial question of law is answered against the appellant\/defendant.\n<\/p>\n
\t13. The learned counsel for the appellant drew the attention of the Court
\nto the observations made by the Honourable Supreme Court in SARJU PERSHAD v.
\nJWALESWARI (AIR (1951) SCC 120) regarding the circumstances under which an
\nappellate Court can interfere with the finding of the trial Court, when the
\nfinding is based on oral evidence and there seems to be a conflict between the
\noral evidence of the parties.  The following are the observations made by the
\nHonourable Supreme in the above said judgment:-\n<\/p>\n
\t“The question for our consideration is undoubtedly one of fact, the
\ndecision of which depends upon the appreciation of the oral evidence adduced in
\nthe case. In such cases, the appellate Court has got to bear in mind that it has
\nnot the advantage which the trial Judge had in having the witnesses before him
\nand of observing the manner in which they deposed in Court. This certainly does
\nnot mean that when an appeal lies on facts, the appellate Court is not competent
\nto reverse a finding of fact arrived at by the trial Judge. The rule is- and it
\nis nothing more than a rule of practice-that when there is conflict of oral
\nevidence of the parties on any matter in issue and the decision hinges upon the
\ncredibility of the witnesses, then unless there is some special feature about
\nthe evidence of a particular witness which has escaped the trial Judge’s notice
\nor there is a sufficient balance of improbability to displace his opinion as to
\nwhere the credibility lies, the appellate court should not interfere with the
\nfinding of the trial Judge on a question of fact.”\n<\/p>\n
\tThe Supreme Court also made the following observation:-\n<\/p>\n
\t“Here was a case where the controversy related to a pure question of fact
\nwhich had to be determined by weighing and appraising of conflicting oral
\ntestimony adduced by the parties. It cannot be denied that in estimating the
\nvalue of oral testimony, the trial Judge, who sees and hears the witnesses, has
\nan advantage which the appellate court does not possess. The High Court was
\nwrong in thinking that it would detract from the value to be attached to a trial
\nJudge’s finding of fact if the Judge does not expressly base his conclusion upon
\nthe impressions he gathers from the demeanour of witnesses. The duty of the
\nappellate court in such cases is to see whether the evidence taken as a whole
\ncan reasonably justify the conclusion which the trial court arrived at or
\nwhether there is an element of improbability arising from proved circumstances
\nwhich in the opinion of the court, outweighs such finding.”\n<\/p>\n
\t14. When the judgment of the lower appellate Court is considered in the
\nlight of the above said observations made by the Honourable Supreme Court, it
\ncan be found that the lower appellate Court has not followed the law laid down
\nin the above said judgment of the Honourable Supreme Court. In fact, the learned
\nlower appellate Judge has not assigned any valid reason for the rejection of the
\nevidence of DW1 and DW2 and the reasons assigned are not sound. Apart from the
\nfact that the lower appellate Court has chosen to interfere with the finding of
\nthe fact recorded by the Court below on appreciation of demeanour of witness.
\nThere are some materials in this case to improbablise the case of the
\nrespondents\/plaintiffs which the lower appellate Court had failed to consider.\n<\/p>\n
\t15.It is the case of the respondents herein\/plaintiff, that the appellant
\nherein\/defendant after the disposal of the former suit in O.S.No.17 of 1977 and
\nthe appeal preferred therefrom in his favour, taking advantage of the same,
\ndemolished the construction and removed the door frame in the portion of the
\nrespondents herein\/plaintiffs as detailed in the plaint and the plaint plan. The
\nplan annexed to the plaint has been marked on the side of the plaintiff as
\nEx.A1. On the contrary, the appellant’s\/defendant’s contention is that the
\ndeceased first plaintiff himself, at the instigation of his wife who is the
\nfirst respondent herein\/second plaintiff, demolished the small structure and
\nremoved the door frame to trade a charge against the appellant\/defendant as if
\nthe demolition and removal of door frame were made by the appellant\/defendant.
\nThis, according to the contention of the appellant herein\/defendant, was done
\nwhen he took steps to levy execution for the recovery of costs awarded for him
\nin the earlier suit as well as the appeal preferred there from.\n<\/p>\n
\t16. The present suit has been filed for a specific plea that a wall marked
\nas “AA1” and a cross wall at point “C” had been in existence touching the
\nexclusive wall belonging to the appellant\/defendant marked as ‘AC’ in the plaint
\nplan and that a portion of “AA1” wall and the cross (buttress) wall at point “C”
\nwere demolished and the door frame that was in existence in between points C1
\nand A7 marked in the plaint plan was also removed by the appellant\/defendant.
\nThe said contention was stoutly denied by the appellant\/defendant. Therefore,
\nthe burden of proving the plaint allegations regarding the demolition of the
\nsaid wall and removal of the door-frame lies heavily on the
\nrespondents\/plaintiffs. In this regard, except the interested testimony of PW1,
\nthe first respondent\/second plaintiff – there is no other evidence adduced on
\nthe side of the respondents\/plaintiffs. As already pointed out, Ex.A1 is the
\nplaint plan submitted by the deceased first plaintiff along with the plaint.
\nEx.A2 is the certified copy of the sale deed under which the property of the
\nplaintiff which lies on the east of the exclusive wall of appellant\/defendant,
\n(marked as ‘AC’ in the plaint plan) was purchased. Ex.A3 to Ex.A11 are documents
\nrelating to the former suit filed by the deceased first plaintiff claiming the
\nabove said ‘AC’ wall to be the common wall of the deceased first plaintiff and
\nthe appellant\/defendant. Admittedly, the said suit as well as the appeal filed
\nthereon ended in favour of the appellant herein\/defendant and the ‘AC’ wall was
\nheld to be exclusively belonging to the appellant\/defendant. The
\nrespondents\/plaintiffs have produced Ex.A10 and Ex.A11 to show that the
\nappellant herein\/defendant did not claim any right on the east beyond ‘AC’ wall
\nin the said former suit.   Of course, in the present suit, the
\nappellant\/defendant has also contended that as per the document by which the
\nvendor of the deceased first plaintiff purchased his property, he was entitled
\nto an east-west measurement of 10 feet alone; that in Ex.A2-sale deed, the said
\nmeasurement has been wrongly noted as 12 feet and that taking advantage of the
\nsaid wrong statement found in Ex.A2, the plaintiffs were taking steps to claim
\nmore than what they were entitled to. The mere fact that the appellant
\nherein\/defendant has denied the entitlement of plaintiffs to an east-west
\nmeasurement of 12 feet will not be enough to come to a conclusion that the
\nappellant herein\/defendant should have demolished the plaintiff’s wall in
\nbetween ‘AC’ wall and point C1 as per the plaint plan and removed the door-frame
\nthat was in existence between the points C1 and A7. The appellant\/defendant,
\nbesides denying the plaint allegations that he demolished the plaintiff’s wall
\nand removed the door-frame, has contended that the wall was actually removed by
\nthe deceased first plaintiff at the instigation of PW1\/second plaintiff.\n<\/p>\n
\t17. According to the specific case of respondents\/ plaintiffs, the
\nappellant\/defendant demolished the wall and removed the door-frame on
\n02.06.1985. PW1 has not furnished the date on which the appellant\/defendant
\nallegedly demolished the wall “AA1” in the plaint plan and  removed the door-
\nframe that existed in between the points C1 and A7.  She would state that family
\nmembers of one Muthu and another Kesavan Achari, one Pappathi and another person
\nVenkatesan (teacher) were the witnesses for the occurrence, in which the
\nappellant\/defendant demolished the wall belonging to the respondents\/plaintiffs.
\nShe has also admitted that there was no enmity or misunderstanding between the
\nsaid persons and the respondents\/plaintiffs. However, the respondents\/
\nplaintiffs have not chosen to examine any one of such witnesses. No reason
\nwhatsoever, has been assigned for the non-examination of any one of such eye
\nwitnesses. On the other hand, the appellant\/defendant has taken a definite stand
\nthat the said portions of the wall was demolished and the door-frame was removed
\nby the first plaintiff himself at the instigation of his wife (PW1\/second
\nplaintiff) and out of ill will because the appellant\/defendant levied execution
\nfor the collection of the cost awarded to him in the previous suit and appeal
\nand that the present suit was filed out of such ill-will for harassing him. He
\nhimself figured as DW1 and deposed in conformity with the averments found in the
\nwritten statement.\n<\/p>\n
\t18.According to the case of the respondents\/plaintiffs, soon after the
\ndemolition was made a complaint was lodged with the police and thereafter a
\nprivate complaint was preferred on the file of the jurisdictional Magistrate
\nsince the police did not take action. Admittedly, in the said complaint, PW1 had
\nalleged that the appellant\/defendant demolished the wall on 02.06.1985 with the
\nhelp of one Rengaraj, a mason by profession. No person who is said to have seen
\nthe demolition was examined on the side of the respondents\/plaintiffs. On the
\nother hand, DW1 has stated that the said Rengaraj is closely related to PW1 and
\nthat in relationship he is a brother to her. The said Rengaraj has been examined
\non the side of the appellant\/defendant as DW2. He has deposed in clear and
\nunambiguous terms that demolition of the buttress wall was made by the deceased
\nfirst plaintiff himself. He has stoutly denied the contention of the
\nrespondents\/plaintiffs that the said wall was demolished and removed by him on
\nthe instructions of the appellant\/defendant. The meticulous cross-examination
\nmade by the counsel for the respondents\/plaintiffs did not yield any useful
\nresult of eliciting any point favourable to the case of the
\nrespondents\/plaintiffs. In addition to that, the defendant has also produced the
\njudgment of the criminal court in C.C.No.3 of 1986 taken on file based on the
\nprivate complaint of the first respondent\/second plaintiff and marked it as
\nEx.B5. It is noticed from Ex.B5 that the said complaint was ultimately dismissed
\nand the appellant\/ defendant as well as PW2 who were arraigned as accused in the
\nsaid criminal case were acquitted. As per the plaint allegations as well as the
\nallegations made before the criminal Court, the act of demolition of the wall
\nand removal of the door-frame was committed on 02.06.1985. Ex.B1 is the
\ncertified copy of the decree in A.S.No.309 of 1979. Ex.B2 is the copy of the
\ncomplaint filed before the learned Judicial Magistrate No.II. Copy of the plaint
\nin O.S.No.17 of 1977, certified copy of judgment in A.S.No.305 of 1979,
\ncertified copy of the judgment in C.C.No.3\/1986 and certified copy of the suit
\nregister in O.S.No.17 of 1977 are marked as Ex.B3, Ex.B4, Ex.B5 and Ex.B6
\nrespectively.\n<\/p>\n
\t19. Admittedly, the former suit (O.S.17\/1977) as well as the appeal
\npreferred by the deceased first plaintiff were dismissed with costs.  It has
\nalso been admitted by PW1, that the appellant\/defendant in the present case
\nlevied execution for the collection of the costs awarded in the former suit and
\nappeal. She would also state that her husband paid the costs and only thereafter
\nthe appellant\/defendant demolished the wall and removed the door-frame.
\nAccording to her the demolition was made one or two months after payment of
\ncosts in the execution proceedings. The certified copy of the suit register
\nmarked as Ex.B6 shows that execution petition for recovery of costs was filed in
\nthe year 1981 and on 12.01.1982 the execution petition was terminated after
\nrecording full satisfaction. It is quite obvious from Ex.B6 that recovery of
\ncosts through execution Court was made in January 1982. If the same is
\nconsidered in conjunction with the evidence of PW1 that the alleged demolition
\nwas made by the appellant\/defendant within one or two months thereafter, the
\ndemolition as per the evidence of PW1 should have been made in the month of
\nFebruary or March 1982. But the case put forward by the plaintiffs in the
\nprivate complaint before the Magistrate and in the present suit is that the
\nalleged act of demolition of wall and removal of door-frame was committed by the
\nappellant\/defendant on 02.06.1985. The suit itself was filed on 11.06.1985. The
\nsame will show the unreliability of the above said evidence of PW1 apart from
\nthe falsify the case of the plaintiffs as found in the plaint.\n<\/p>\n
\t20. It is also obvious that the suit for mandatory injunction and damages
\nhas been filed in the Court after a lapse of three years from the date of
\ndemolition and removal of door-frame. The above said admission of PW1 that the
\ndemolition of the wall and removal of door-frame were made within one or two
\nmonths after payment of costs in the former suit, will corroborate the evidence
\nof DW1 and DW2 that the demolition of wall and the removal of door-frame were
\nmade in the year 1982 itself and that the case was filed by the plaintiffs by
\nciting an imaginary occurrence as if the wall was demolished and door-frame was
\nremoved by the appellant\/defendant on 02.06.1985. The learned trial Judge
\nproperly analysed all the above said aspects and came to the correct conclusion
\nthat the plaintiffs failed to prove their case. The well considered finding of
\nfact recorded by the trial Court has been interfered with and reversed by the
\nlower appellate Court not on legally acceptable grounds but on surmises and
\nextraneous considerations. A bare reading of the judgment of the appellate Court
\nwill show the perversity in-built in it. No valid reason has been assigned by
\nthe lower appellate Court in not believing the evidence of witness examined on
\nthe side of the defendant, especially the independent witness DW2, who is
\nadmittedly a relative to both the plaintiffs and the defendant.\n<\/p>\n
\t21. The lower appellate Court has simply brushed aside the fact that
\nexcept the interested testimony of PW1 which is also discrepant as pointed out
\nsupra, no other reliable evidence has been adduced to prove the case of the
\nrespondents\/plaintiffs that it was the appellant\/defendant who demolished the
\nwall and removed the door-frame on 02.06.1985. There was no ground whatsoever,
\nto interfere with the well considered finding of the trial Court that the
\nadmission made by PW1 to the effect that the wall was demolished one or two
\nmonths after payment of cost in the former suit was made, in conjunction with
\nEx.B6, would clearly show that the wall and door-frame were not in existence
\nbeyond the month of March 1982 and that the case of the plaintiffs as if they
\nwere in existence in the month of June 1985 and were removed by the
\nappellant\/defendant on 02.06.1985 could not be countenanced. The lower appellate
\ncourt seems to have wrongly applied the principle of law regarding burden of
\nproof and held that the defendant had not proved his case that the
\nappellant\/defendant was not entitled to an east-west measurement of 12 feet and
\nthat since the appellant\/defendant had contended that the plaintiffs were
\nentitled to 10 feet alone, he could have demolished the wall and removed the
\ndoor-frame as claimed by the respondents\/plaintiffs. The very approach made by
\nthe lower appellate court is erroneous and legally unsustainable. The lower
\nappellate Court seems to have given a finding against the appellant\/defendant on
\nmere surmises and conjectures without there being any reliable evidence in
\nsupport of such a conclusion. The learned lower appellate Judge seems to have
\nforgotten the well established principle of law that the plaintiffs have to win
\nor lose according to the strength of their case and that they cannot succeed in
\ntheir case pointing out the weakness or loopholes found in the defence case of
\nthe defendant.\n<\/p>\n
\tThe lower appellate court has also chosen to award damages to a sum of
\nRs.1,000\/- to the respondents\/plaintiffs as claimed by them in the plaint. There
\nis absence of clear cut evidence regarding the extent of damage caused. On the
\nother hand, there is the clear evidence of DW1 that the wall at C1 that was
\nallegedly removed could be reconstructed at a cost of Rs.100\/- if the removed
\nold bricks were used and that a cost of Rs.200\/- alone would be incurred for
\nsuch construction using new bricks. This aspect was not at all  appreciated by
\nthe lower appellate court.\n<\/p>\n
\t22. For all the reasons stated above, this Court hereby comes to the
\nconclusion that the finding of fact regarding  the allegation of the plaintiffs
\nthat appellant\/defendant  demolished the wall and removed the door-frame on
\n02.06.1985 can be termed definitely perverse, as the same is not supported by
\nany evidence and no reasonable person would have  come to such a conclusion on
\nthe basis of the evidence available on record. When a finding of fact is
\nperverse, the same will assume the character of a substantial question of law-
\nbased on which, this Court (second appellate court) is perfectly entitled to
\ninterfere with the judgment of the lower appellate Court. Therefore the 2nd
\nsubstantial question of law and the 3rd (additional) substantial question of law
\nframed in this second appeal are answered in favour of the appellant.
\nAccordingly the finding of the lower appellate court regarding the alleged
\ndemolition of wall and removal of door-frame by the appellant\/defendant is
\nhereby held perverse and discrepant.\n<\/p>\n
\t23. Viewed from any angle, the judgment of the lower appellate Court
\ncannot be sustained. The same deserves to be set aside restoring the judgement
\nand decree of the trial Court. Accordingly, the second appeal succeeds. The
\njudgment and decree of the lower appellate Court made in A.S.No.296 of 1991
\ndated 20.07.1994 are set aside and the judgment and decree of the trial Court
\nmade in O.S.No.222 of 1985 dated 22.02.1991 are restored. The appellant shall be
\nentitled to recover his cost of litigation throughout from the respondents.\n<\/p>\n
asr
\nTo
\nII Additional District Judge, Tiruchirapalli<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ramalingam Pillai vs Ammani Ammal on 25 April, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25\/04\/2008 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.1352 of 1994 Ramalingam Pillai .. Appellant Vs. 1.Ammani Ammal 2.Gopal 3.Thirupathi 4.Mahalakshmi 5.Pushpa .. Respondents Second appeal filed against the judgment and decree dated 20.07.1994 made in […]<\/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-69396","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRamalingam Pillai vs Ammani Ammal on 25 April, 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\/ramalingam-pillai-vs-ammani-ammal-on-25-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramalingam Pillai vs Ammani Ammal on 25 April, 2008 - 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