Madras High Court
Selvaraj vs Arumugham on 4 December, 2017
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.11.2017
PRONOUNCED ON : 04.12.2017
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.1538 of 2011
1. Selvaraj
2. Malarkodi ... Appellants
Vs.
Arumugham ... Respondent
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 31.10.2000 made in A.S.No.34 of 1998, on the file of the Additional District Judge Villupuram confirming the judgment and decree dated 22.08.1997 made in O.S.No.664 of 1989, on the file of Principal District Munsif Court, Thirukkovilur.
For Appellants : Mrs. V.J. Latha
For Respondent : Ms. V.Srimathi
*****
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 31.10.2000 passed in A.S.No.34 of 1998, on the file of the Additional District Court, Villupuram, confirming the judgment and decree dated 22.08.1997 passed in O.S.No.664 of 1989, on the file of Principal District Munsif Court, Thirukkovilur.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for declaration, permanent injunction and damages.
4. In brief, according to the plaintiff's case, the plaint A schedule property originally belong to the plaintiff's father Natesa mudaliar and was in his possession and enjoyment and the plaintiff's father sold the plaint A schedule property on 02.04.1930 to the third defendant's father Munusamy pillai and others and while selling the property by way of the above said sale deed, the plaintiff's father had sold the said property excluding the south wall situated on the southern side of the said property and therefore, only the portion situated to the north of the south wall had been sold by the plaintiff's father in the above mentioned sale deed and the said south wall measuring 2 feet width and 69 feet length is the B schedule property and the property purchased by Munusamy pillai has been shown as the A schedule, residing in the said property with his family members and presently being enjoyed by the defendants and the defendants' predecessors in title had accepted to put up a southern wall within the property purchased by them and till the said arrangement, had requested the plaintiff's father to rest the terraced tiles on the southern wall, for which permission was granted by the plaintiff's father. However, the defendant or their predecessor in interest had not put up or erected any separate wall on the southern side within their purchased property and while so, the plaintiff's father purchased the tiled house and the vacant site from one Mangaiammal, situated to the south of the B schedule property on 09.03.1957, by way of registered sale deed and thereafter during 1972, he put up a terraced house in the property, thereby, he had put up the terraced building on the northern side annexing or resting on the plaint B schedule property and accordingly, the plaintiff's father and the plaintiff had been enjoying the property purchased by them, by way of the above said sale deed including the the plaint B schedule property and further the plaintiff had also purchased the property belonging to Uthirappan mudaliar and enjoying the same and thereby, the plaintiff had also prescribed the title by adverse possession and also got easementary right by prescription and the defendants have no of manner of right what so ever over the plaint B schedule property. While so, the defendants unlawfully demolished the terraced structure of the plaintiff by using crowbar and other weapons by unlawfully encroaching into the same and thereby, demolished the wall causing damage to the plaintiff quantified at Rs.3,000/- and with reference to the same, a police complaint had been lodged against the defendants and further a legal notice had also issued to the defendants and hence, the plaintiff had been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendants, in brief, is that it is true that the plaint A schedule property was originally owned by the plaintiff's father Natesa mudaliar and that it has been purchased by the 3rd defendant's father on 02.04.1930 and it is false to state that the plaintiff's father had sold the property excluding the southern wall and it is false to state that the defendants' predecessors in interest had agreed to put up the southern wall within the property purchased by them and sought permission of the plaintiff's father to rest their terraced building on the plaint B schedule property and permission had been granted by the plaintiff's father. There is no such understanding or agreement between the parties. The plaint B schedule property is a common wall belonging to the plaintiff and the defendants and without the plaint B schedule property, the defendants' terraced house would not exist, as the same is resting on it and it is true that the plaintiff's father had purchased the property of Mangaiammal on 09.3.1957 and the plaintiff's father had no necessity to retain the southern wall while selling the A schedule property and it has been so wrongly described in the sale deed dated 02.04.1930 and the southern wall is not in the exclusive enjoyment of the plaintiff and the enjoyment of the B schedule property by the defendants and their predecessors in interest had not been objected to by the plaintiff at any point of time and the plaintiff's father had not purchased the southern wall from Mangaiammal and others and therefore, cannot claim any exclusive title to the B schedule property and the defendants had also acquired right over the plaint B schedule property by easementary right through prescription and it is false to state that the defendants unlawfully, by encroaching into the property of the plaintiff, demolished the terraced wall and caused loss to the plaintiff, quantified at Rs.3,000/-. The defendants are not liable to pay any damages to the plaintiff. The plaint B schedule property is the common property of the parties and the plaintiff cannot claim any exclusive title to the same and hence, the suit is liable to be dismissed.
6. In support of the plaintiff's case Pws. 1 and 2 were examined and Exs.A1 to A7 were marked and on the side of the defendants DW1 was examined and no document has been marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiff's case and accordingly, decreed the suit in favour of the plaintiff. Aggrieved over the same, the present second appeal has come to be preferred.
8. At the time of admission of the second appeal the following substantial questions of law were formulated for consideration:
1.Whether the Courts below erred in not even framing issues and deciding on the question, whether the defendants have prescriptive title over the B schedule property?
2.Whether the Courts below erred in deciding the title, overlooking the fact that admittedly for more than 35 years the defendants are in possession and enjoyment of the suit property?
3.Whether the Courts below failed in not even considering the question of easement of necessity when admittedly the entire building is being rested on the B schedule property, even at the time of purchase from the plaintiff's father and would fall down if the wall is demolished?
9. It is not in dispute that the plaint A schedule property originally belong to the plaintiff's father Natesa mudaliar and he has in possession and enjoyment of the same. It is also not in dispute that the plaintiff's father had alienated the plaint A schedule property to the 3rd defendant's father and others on 02.04.1930 and the said sale deed has been marked as Ex.A1. It is seen that the wall described in the plaint B schedule property is situated to the south side of the property covered under Ex.A1. It is further seen that Natesa mudaliar, prior to Ex.A1, had been in possession and enjoyment of the plaint A schedule property along with the B schedule property and the same is also in dispute. It is further seen that as per the recitals contained in Ex.A1 and also as per the testimony of the plaintiff examined as PW1 as well as the admission of the first defendant examined as DW1, by way of Ex.A1, Natesa mudaliar had not alienated the plaint B schedule property to the 3rd defendant's father and others and on the other hand, it is seen that he had retained the plaint B schedule property while selling the property by way of Ex.A1. It is thus found that when it is admitted case of the parties that Natesa mudaliar had retained his right over the B schedule property and had only alienated the property situated to the north of the plaint B schedule property, the defendants cannot claim any absolute right, as such, over the plaint B schedule property under Ex.A1.
10. However, it is pleaded by the defendants that the recitals contained in Ex.A1 that the property covered thereunder had been alienated excluding the south wall, has been wrongly incorporated and on the other hand, as the house property purchased by the defendants' predecessors in interest under Ex.A1 had been resting on the said wall, there would have been no necessity to exclude the wall while making the alienation under Ex.A1 and that apart, it is also the pleading of the defendants that there is no necessity on the part of Natesa mudaliar to retain the south wall while alienating the property under Ex.A1, as he had no property adjacent to the wall at that point of time and therefore, it is the case of the defendants that the said wall i.e,. the plaint B schedule property is the common property belonging to both the plaintiff and the defendants.
11. It is admitted by both parties that to the south of the plaint B schedule property, the tiled house and vacant site of Mangaiammal is located and it is also admitted that Natesa mudaliar had purchased the said property from Mangai ammal and others on 09.03.57 by way of Ex.A2 sale deed and it is testified by the plaintiff that Mangaiammal is related to them and as the tiled house of Mangaiammal was demanding the support of the plaint B schedule property and resting on the plaint B schedule property, accordingly, Natesa mudaliar while selling the property under Ex.A1 had retained his right over the plaint B schedule property and thus excluding the plaint B schedule property, he had only alienated the A schedule property under Ex.A1 to the 3rd defendant's father. It is further seen that after the purchase under Ex.A2, Natesa mudaliar in 1972 put up a regular house construction in the said property and accordingly, annexed the plaint B schedule property while putting up the terraced structure and thus, it is seen that the terraced structure is resting on the plaint B schedule property. It is the case of the plaintiff that the defendants without any legal authority had demolished the wall of the plaintiff's property by removing the bricks etc., using weapons and thereby, caused damages to the plaintiff's property and in this connection, police complaint has been lodged and the copy of the police complaint has been marked as Ex.A5 . In addition to the lodging of the police complaint, issued legal notice to the defendants, with reference to the same.
12. Considering the issues involved in this matter, it is seen that the plaintiff claims absolute title to the plaint B schedule property. Per contra, it is the case of the defendants that the plaint B schedule property is common to both the plaintiff and the defendants. Admittedly, the plaint B schedule property originally belong to Natesa mudaliar. As seen above, Natesa mudaliar had not alienated the plaint B schedule property to the defendants' predecessor in title under Ex.A1. This has been admitted by both parties. However, a plea has been putforth by the defendants that the recitals with reference to the same have been wrongly incorporated in Ex.A1. If that be so, as rightly putforth by the plaintiff's counsel, necessary rectification deed should have been obtained by the defendants in the due course of time. However, till date, it is seen that the defendants have not endeavoured to obtain any rectification deed as regards their above case. Therefore, it is seen that Natesa mudaliar had retained his right to the plaint B schedule property and excluding the same only he had sold the property to the defendants' predecessors in title under Ex.A1. The further case of the defendants that there is no need for Natesa mudaliar to retain the plaint B schedule property cannot also be accepted, as it is seen that Mangai ammal's property was situated to the south of the plaint B schedule property at that point of time and Mangai ammal is related to Natesa mudaliar and as the tiled house of Mangai ammal was resting on the plaint B schedule property and required its support and accordingly, it is seen that Natesa mudaliar has retained his absolute right to the plaint B schedule property and excluding the same only, he had sold the property to the defendants' predecessors in title under Ex.A1. That apart, it is the admitted case of the parties and also seen from the materials placed, particularly, the documents Exs. A1 and A2 and the evidence of PW1 and DW1, it is found that to the west of the plaint A schedule property, admittedly, the vacant sites of both Natesa mudaliar and Munusamy are located and it is thus found that considering the ownership of the property of Natesa mudaliar on the western side of the property sold under Ex.A1 and also considering the fact that the tiled house of Mangaiammal was resting on the plaint B schedule property, Natesa mudaliar had accordingly retained his right over the plaint B schedule property and excluding the same only he had sold the property under Ex.A1. Therefore, the contention putforth by the defendants that there had been no necessity on the part of Natesa mudaliar to retain the B schedule property, at the time of Ex.A1 cannot be accepted.
13. It is further seen that Natesa mudaliar was, after Ex.A1, residing in the vacant site situated to the south of Mangaiammal's property and subsequently on 09.03.1957, he had purchased the property of Mangaiammal and accordingly, while putting up the house structure in the property during 1972, as he had the absolute right over the plaint B schedule property, accordingly, while putting up the terraced structure, annexed B schedule property and resting the wall on the same, had put up his construction. No doubt, the reference about the plaint B schedule property is not reflected in Ex.A2. This is pointed out by the defendants' side and thereby, they contended that as Natesa mudaliar had not purchased the B schedule property by way of Ex.A2, he cannot be allowed to rest his terraced structure on the said wall, by annexing the same along with his property. However, as rightly putforth, when admittedly the plaint B schedule property originally belong to Natesa mudaliar and he had retained the right over the same while executing Ex.A1, there is no need for Natesa mudaliar to purchase the said B schedule property from Mangaiammal vagaiyara under Ex.A2. Therefore, when he is already having a valid title to the B schedule property, even prior to Ex.A2 and accordingly, it is seen that after the purchase under Ex.A2, he has exercised absolute right over the B schedule property, put up his terraced building by annexing the B schedule property and rested the terraced wall on the same. Therefore, the contention of the defendants that the plaintiff and their predecessor in title had illegally and without authority had annexed the B schedule property and resting the terraced structure, as such, cannot be accepted.
14. It is the contention of the defendants that all along the house property purchased under Ex.A1 had been resting on the B schedule property and without B schedule property, the house would not stand and therefore, it is the contention that the B schedule property is the common property to both the plaintiff and the defendants. However, as rightly argued by the plaintiff's counsel, when the right to the B schedule property had not been conveyed to them under Ex.A1, the defendants cannot seek any right over the same by contending that the same belong to the plaintiff and the defendants in common.
15. No acceptable and reliable materials has been placed by the defendants to show that their house property had been resting on the B schedule property and their house property would not stand without the support of the B schedule property and hence, their claim that the B schedule property is common to them as well as the plaintiff cannot be accepted. Similarly, the averments contained in the plaint that Natesa mudaliar had permitted them to rest their property on the B schedule property as such would not confer any right over them, particularly, when they had not purchased the same under Ex.A1. That apart, the defendants as such have not established that their A schedule property had been resting on the B schedule property for more than the statutory period so as to enable them to, atleast, acquire any easementary right over the same. Though the defendants have also claimed easementary right by prescription over the B schedule property, it is seen that the materials pointing to the same are completely lacking and there is no proof on the part of the defendants to hold that they had acquired easementary right by prescription over the B schedule property. In such view of the matter, it is found that the Courts below had not granted the said right to the defendants as they have failed to establish the said right with acceptable materials. Equally it is seen that the defendants have failed to establish that they had been in legal possession and enjoyment of the B schedule property for more than 35 years and on the other hand, when it is found that only on the permission granted by Natesa mudaliar, they had been allowed to rest their property on the B schedule property wall and that by itself would not confer any right on them. When it is found that only Natesa mudaliar has title to the B schedule property and accordingly, when he had, after purchasing the property under Ex.A2 had put up a terraced structure and while dong so, had also annexed the B schedule property and resting the terraced wall on the same, it has seen that the so called permission granted by Natesa mudaliar had been thereby revoked/cancelled and when it is not been established that by erection of the terraced structure by Natesa mudaliar, the defendants house property has sustained any material damage and when there is no material to hold that the defendants had been in possession and enjoyment of the B Schedule property for several years as claimed by them, it is seen that the Courts below have rightly determined that it is only the plaintiff who has a valid title to the B schedule property. Accordingly, it is seen that when there is no material to show that the entire building of the defendants property is resting on the B schedule property and the same completely requires the support of the B schedule property for its stability and only on the permission granted by Natesa mudaliar, the above said facilities had been granted to them and when that permission had been subsequently revoked /cancelled by the erection of the terraced structure by Natesa mudaliar in the property purchased under Ex.A2, it is seen that the defendants cannot claim any right of easement of necessity also over the B schedule property. That apart, the defendants have not specifically pleaded that they are entitled to easementary right by necessity over the B schedule property in the written pleadings and also not placed any material in support of their said case.
16. As regards the case of the plaintiff that the defendants have illegally demolished his terraced wall and caused damage, the Courts below have rightly assessed the evidence on record and accordingly held that the defendants have unlawfully demolished the wall of the plaintiff, causing damage to them to the extent of Rs.1000/- as determined by the Courts below. As regards the above said findings of the Courts below, they being pure question of facts determined by the Courts based on sound materials and reasonings and not suffering from any infirmity and perversity, it is seen that the above findings of the Courts below do not call for any interference as such. It is seen that the Courts below have rightly analysed the materials placed in the matter, both orally and documentary, in the right perspective on all aspects both factually and as well as legally and accordingly, determined that it is the only the plaintiff who has title to the B schedule property and accordingly, granted the appropriate reliefs in favour of the plaintiff.
17. The principles of law outlined in the decision relied on by the defendants' counsel reported in 95 LW 708 (P.Thangavelu Vs. R.Dhanalakshmi Ammal and other) are taken into consideration and followed as applicable to the case at hand.
18. In view of the same, and in the light of the above said discussions, the substantial questions of law formulated in this second appeal are answered against the defendants and in favour of the plaintiff.
19. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any is closed.
04.12.2017 Index : Yes/No Internet:Yes/No sli To
1. The Additional District Court, Villupuram.
2. The Principal District Munsif Court, Thirukkovilur.
T.RAVINDRAN,J.
sli Pre-delivery Judgment in S. A.No.1538 of 2001 04.12.2017