Madras High Court
Pl.Lakshmanan vs N.N.N.Nachiappan on 7 January, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date: 07/01/2011 Coram The Hon'ble Mr.Justice R.S.RAMANATHAN Second Appeal(MD)No.700 of 2008 and M.P.No.1 of 2008 PL.Lakshmanan Appellant vs. 1. N.N.N.Nachiappan 2. M.Senthilnathan Chettiar Respondents !For appellant ... Mr.R.Sundar Srinivasan ^For R1 ... Mr.S.Srinivasa Raghavan For R2 ... Mr.V.R.Shanmuganathan Prayer Second Appeal against the judgment and decree dated 29.2.2008 in A.S.No.39 of 2007 on the file of the Sub Court, Devakottai confirming the judgment and decree dated 16.8.2007 in O.S.No.109 of 2005 on the file of the Principal District Munsif cum Judicial Magistrate, Karaikudi. :JUDGMENT
The unsuccessful plaintiff is the appellant.
2. The plaintiff filed the suit for injunction restraining the defendants from altering the physical features of the suit property.
3. The case of the appellant was that the suit property consists of a house and vacant site originally belonged to Natesan Chettiar, Alagappan Chettiar and the first defendant and his mother Alamelu Achi and they are entitled to have 4:1:3 rights in the suit property and the appellant's mother purchased the right of the first defendant and his mother in a court auction and the sale deed was executed in her favour on 29.7.1970 and as per the said purchase, the appellant's mother became entitled to 3/8 share in the suit property and the suit property that was conveyed to the appellant's mother was bounded on the east by Managiri Palaniappa Chettiar Street and by west by Chellappa Chettiar Street and within the said two streets, the suit property consists of a house and vacant site is situate and the defendants are trying to change the physical features of the vacant site which is situate on the eastern side of the house abetting the Managiri Palaniappa Chettiar Street and the first defendant claimed exclusive right over the vacant site and claimed to have sold half share to the second defendant. After the death of the appellant's mother, the appellant got the property under the Will dated 2.10.2002 executed by his mother and in the suit property, he is entitled to 3/8 share and the respondents are attempting to change the physical features and hence, the suit was filed.
4. The respondents filed written statement stating that in the suit property, the first defendant was having four shares and Natesan Chettiar was having four shares and out of four shares of the first defendant, three shares were sold in auction and Muthu Karupy Achi, who is the mother of the appellant purchased the suit property in court auction and the property which was sold in court auction is the property situated in S.No.234 and the vacant site which is abutting Managiri Palaniappa Chettiar Street and situate in S.No.234 was not the subject matter of the auction and it was not sold to the appellant/plaintiff and it is a separate property of the first defendant and therefore, the plaintiff/appellant has no right over the same and therefore, the suit for injunction is not maintainable.
5. During trial, an Advocate Commissioner was appointed and he also filed a report stating that the suit property is situate in T.S.No.234 and 261 and T.S.No.234 is on the western side and west of T.S.No.234 is the Chellappa Chettiar Street and S.No.261 is on the eastern side and east of that T.S.No.261 is the Managiri Palaniappa Chettiar Street and the extent of S.No.234 is 21.2 cents and the extent of S.No.261 is 21.7 cents and there is a small hut on the north eastern portion of S.No.261 and from S.No.234 there is a passage leading to S.No.261.
6. The Trial Court dismissed the suit holding that as per the court auction sale, only the property in T.S.No.234 was sold to the mother of the appellant and the appellant has not proved his possession over the property in T.S.No.261 and in the absence of proving possession over T.S.No.261, the appellant is not entitled to the relief of injunction and even assuming that the appellant is the co-owner, he is not entitled to injunction against another co- owner.
7. The lower appellate court also held that as per the auction sale, only an extent of 937-1/2 sqft was sold to the appellant and no property in T.S.No.261 was sold to the appellant and therefore, the appellant is not entitled to the injunction prayed for and dismissed the appeal. Hence, the second appeal.
8. The substantial question of law raised for consideration in the second appeal is "Whether the courts below are right in dismissing the suit holding that S.No.261 was not sold to the appellant without considering that boundaries will prevail in the absence of specific extent or measurement given in the deed and when boundaries prevail whether the appellant is entitled to claim any right in S.No.261".
9. It is submitted by Mr.Sundar Srinivasan, learned counsel appearing for the appellant that both the courts below proceeded on the basis that the appellant has not proved possession over S.No.261 and under the auction sale, the appellant's mother did not get any property in S.No.261 and therefore, the appellant is not entitled to the relief prayed for, without appreciating that the appellant has not prayed for injunction restraining the defendants from interfering with his possession of the suit property and the prayer is only for restraining the respondents from altering the physical features of the suit property. According to the learned counsel for the appellant, it is seen from the auction sale as well as Ex.A11 mortgage deed which was the basis for the auction that the property situate between Chellappa Chettiar Street on the western side and Managiri Palaniappa Chettiar Street on the eastern side was sold to the plaintiff's mother and as per the auction sale, the plaintiff is entitled to 3/8 share in the property and the plaintiff never claimed any exclusive right over the entire extent of the property and the case of the plaintiff is that he is having 3/8 share in the property that is situate in between Chellappa Chettiar Street and Managiri Palaniappa Chettiar Street and without appreciating the same, both the courts below dismissed the suit holding that the plaintiff has not proved his possession and the plaintiff has no title over S.No.261. He further submitted that even though S.No.261 was not mentioned in the court auction sale, it is seen from the boundary recital it can be easily presumed that S.No.261 was also included in the sale and in the absence of any measurement, boundaries will prevail and as per the judgment of our High Court reported in 2007 (1) CTC 577, boundary will prevail over the extent mentioned in the document and as per the boundaries, S.No.261 was also conveyed alongwith S.No.234 and therefore, the plaintiff is having a share over S.No.261 also and therefore, he is entitled to injunction prayed for.
10. On the other hand, the learned counsel for the respondents submitted that the plaintiff has not come to court with clean hands and even though the plaintiff/appellant claims right over the suit property, as per the sale deed, Ex.A1, only S.No.234 was sold to his mother and therefore, he cannot claim right over S.No.261 which is situate on the eastern side S.No.234. He further submitted that the plaintiff/appellant is relying upon Ex.A2 dated 1.3.1969 a letter alleged to have been written by the vendor admitting that possession in respect of S.No.261 was also handed over to the appellants mother and the letter was dated anterior to the court auction sale which was dated 29.7.1970 and there are interpolations with regard to S.No.261 in Ex.A2 and even before the sale in favour of the appellant's mother, the appellant claims to have obtained the letter from the vendor as if S.No.261 was also given to her and that would also prove the falsity of the case of the appellant. He further submitted that it is admitted by the appellant that he never paid any kist in respect of S.No.261 and S.No.261 stands in the name of the first defendant and his predecessor in title and therefore, the appellant cannot claim any right over S.No.261 and considering all these aspects, the courts below have rightly dismissed the suit.
11. It is admitted by both the parties and it is also evident from the Commissioner's report that S.No.234 is situate on the western side and west of that is Chellappa Chettiar Street. East of S.No.234 is T.S.No.261 and further east of T.S.No.261 is Managiri Palaniappa Chettiar Street. It is seen from Ex.A1 that the property that was conveyed to the appellant's mother is situate east of Chellappa Chettiar Street and west of Managiri Palaniappa Chettiar Street having door Nos.29 to 32 in T.S.No.234 and the extent is 2500 kuzhi having east-west 200 feet and north-south 100 feet and in that area, 3/8 share was conveyed. Therefore, it is clear from Ex.A1 that the property situated between Chellappa Chettiar Street and Managiri Palaniappa Chettiar Street was conveyed to the appellant's mother and she got 3/8 share in the extent of property that is available in between the above two Streets.
12. It is seen from the Advocate Commissioner's report that T.S.No.234 and 261 are adjoining to each other and T.S.No.264 is on the western side and on the eastern side T.S.No.261 is situate and on the west of T.S.No.234 is Chellappa Chettiar Street east of S.No.261 is Managiri Palaniappa Chettiar Street. Therefore, from the boundary recitals, it can safely be concluded that the property situated in between Chellappa Chettiar Street and Managiri Palaniappa Chettiar Street was the subject matter of the sale. Further, it is stated by the Commissioner in his report that the total extent of S.No.234 is 21.2 cents equivalent to 9254 sqft and the extent of T.S.No.261 is 21.7 cents equivalent to 9457 cents. It is further stated by the Commissioner that there is a compound wall dividing S.No.234 and S.No.261 and on the eastern side of S.No.234, there is a door way and from the door way, there are steps leading to S.No.261. It is further stated that T.S.No.261 is a vacant site having a dilapidated thatched roof on the north eastern side and in S.No.234 there is a house having a main entrance from Chellappa Chettiar Street. As per Ex.A1 sale deed, the plaintiff/appellant is not claiming any exclusive right over the entire property that was conveyed and it is the specific case of the appellant/plaintiff that he is having 3/8 share in that property. No doubt, in Ex.A1, S.No.261 was not mentioned and it is also admitted that there is separate assessment for T.S.No.261 and the plaintiff never paid any kist in respect of T.S.No.261. The plaintiff/appellant based his claim on the the boundary recital in Ex.A1 and according to the plaintiff/appellant, he is the co-owner alongwith the defendant and therefore, the defendants are not entitled to alter the physical features of the suit property consisting of T.S.Nos.234 and 261 without the consent of the plaintiff.
13. It is seen from the judgment of the Trial Court that the Trial Court dismissed the suit holding that the appellant/plaintiff has no title over T.S.No.261 and he has not proved his possession and therefore, he is not entitled to the relief of injunction. According to me, the Trial Court erroneously proceeded on the basis that without proving possession, the plaintiff/appellant is not entitled to the relief of injunction. The Trial Court omitted to note that it is not the case of the appellant/plaintiff that he is in possession and enjoyment of the suit property and his possession is disturbed. The case of the appellant/plaintiff is that he is having 3/8 share in the suit property and the defendants are attempting to change the physical features of the suit property and they must be injuncted and without appreciating the prayer and the case of the appellant/plaintiff, the trial Court refused to grant the relief of injunction on the ground that the appellant/plaintiff has not proved his possession and he has no title over T.S.No.261. Similarly, the lower appellate court also dismissed the appeal holding that the appellant has not proved his title to T.S.No.261 and therefore, he is not entitled to the relief of injunction.
14. According to me, both the courts below have failed to appreciate the case of the appellant that he is claiming right under Ex.A1 and according to the appellant/plaintiff, he got 3/8 share in the property situate in between Chellappa Chettiar and Managiri Palaniappa Chettiar Streets and in between those two streets, S.No.234 and 261 are situated and when the property that was conveyed to the appellant/plaintiff are situated within the boundaries, he is entitled to claim right over the same and the settled proposition of law is that in case of dispute regarding extent and boundaries, the boundaries will prevail and this court also held to that effect in the decision reported in 2007 (1) CTC 577 (cited supra).
15. Further, if we take the measurement as given in Ex.A1 as well as the measurement found by the Advocate Commissioner, it can be easily inferred that what was conveyed under Ex.A1 is S.No.234 and 261 and merely because S.No.261 was not mentioned in the sale deed, Ex.A1, it cannot be presumed that the appellant/plaintiff is not entitled to have any right as boundary will prevail over the extent. Hence, as per the boundary recital, the appellant is entitled to 3/8 share in the property that is situated in between Chellappa Chettiar Street and Managiri Palniappa Chettiar Street and the property that is situated in between those two streets are S.Nos.234 and 261 and the plaintiff is having 3/8 share in those properties and he prayed for injunction restraining the defendants from altering the physical features of the property and for that purpose, there is no need to prove possession and when the appellant has proved title over the same, he is entitled to the relief of injunction. Hence, substantial question of law is answered in favour of the appellant. In the result, the second appeal is allowed. The judgments and decrees of the courts below are set aside. No costs. The connected miscellaneous petition is closed.
ssk.
To
1. The Sub Judge, Devakottai.
2. The Principal District Munsif cum Judicial Magistrate, Karaikudi.