Madras High Court
Rajammal (Died) vs R.Saratha Ammal (Died) on 12 July, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
S.A.No.1399 of 1997 &
Cros.Obj.No.68 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.07.2023
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
S.A.No.1399 of 1997
and
Cross Objection.No.68 of 1999
-----
S.A.(MD)No.1399 of 1997:
1.Rajammal (Died)
2.A.Chandrasekar
3.A.Arumugamasamy
(Sole appellant died. Recorded vide order of this
Court dated 02.12.2008 made in memo
SR.No.4436 of 2008 in S.A.No.1399 of 1997)
: Appellants/1st Respondent/1st Defendant
Vs.
1.R.Saratha Ammal (died) : Respondent/Appellant/Plaintiff
2.Tuticorin Municipality through
its Commissioner : Respondent/2nd Respondent/2nd Defendant
3.A.Palanichamy
4.A.Rajamanickam
Page No.1/47
https://www.mhc.tn.gov.in/judis
S.A.No.1399 of 1997 &
Cros.Obj.No.68 of 1999
5.Gandhi
6.Chandra
7.Padmavathi
8.Susila
9.Jegajothi
(Appellant Nos.2 and 3 and Respondent No.3 to 9 are brought on
record as legal representatives of the deceased sole appellant vide
order of this Court dated 03.04.2017 made in M.P.(MD).No.2 and 3 of
2009 in S.A.No.1399 of 1997)
10.R.Rajkumar
(10th Respondent is brought on record as
legal representatives of the deceased 1st
respondent vide order dated 18.03.2022
made in C.M.P.(MD)Nos.4251, 4773 to
4775 of 2021)
: Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., praying
to set aside the decree and judgment dated 05.07.1996 made in
A.S.No.403 of 1994, on the file of the learned Principal District Judge,
Tuticorin, preferred against the judgment and decree in O.S.No.639
of 1988 dated 26.03.1992 on the file of the learned Additional District
Munsif, Tuticorin.
For Appellants : Mrs.P.Jessi Jeeva Priya
For Respondents : Mr.S.R.Sathan Boopathy
Page No.2/47
https://www.mhc.tn.gov.in/judis
S.A.No.1399 of 1997 &
Cros.Obj.No.68 of 1999
(for R3, R5, R7 to R9)
Mr.G.Prabhu Rajadurai
(for R1 and R10)
Cross Objection (MD).No.68 of 1999:
Saratha Ammal : Cross Objector
Vs.
1.Rajammal
2.Tuticorin Municipality, through its Commissioner,
W.G.C. Road, Tuticorin. : Respondents
PRAYER: Cross Objection filed under Order XVI Rule 22 of C.P.C.,
against the decree and judgment dated 05.07.1996 made in A.S.No.
403 of 1994, on the file of the learned Principal District Judge,
Tuticorin, preferred against the judgment and decree in O.S.No.639
of 1988 dated 26.03.1992 on the file of the learned Additional District
Munsif, Tuticorin.
For Cross Objector : Mr.G.Prabhu Rajadurai
Page No.3/47
https://www.mhc.tn.gov.in/judis
S.A.No.1399 of 1997 &
Cros.Obj.No.68 of 1999
COMMON JUDGMENT
The deceased first appellant is the first defendant in O.S.No.639 of 1988 on the file of the Additional District Munsif, Tuticorin. The deceased first respondent/cross objector, as the plaintiff, has filed the above said suit for declaration and also permanent injunction restraining the first appellant herein/first defendant, her men, agents, servants, etc., from interfering in any manner either by putting up any drainage in the schedule property or otherwise to her possession and enjoyment of the schedule of property. Subsequently, the consequential relief of permanent injunction was amended for mandatory injunction to remove the latrine and drainage connected it put up newly by the first appellant/first defendant. After trial, the said suit was dismissed. Challenging the same, the first respondent/cross objector/plaintiff filed appeal suit before the Page No.4/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 Principal District Court, Tuticorin. After hearing, the learned Principal District Judge dismissed the appeal filed by the first respondent/cross objector/plaintiff, however, granted the alternative relief of easement. Now, challenging the said finding, the first appellant/first defendant has filed the present second appeal. Though the first respondent/cross objector/plaintiff has not filed any appeal challenging the dismissal of the appeal suit filed by her, after filing this second appeal by the deceased first appellant/first defendant, she has filed the present cross objection.
2. Since both the second appeal and the cross objection are arising out of the same Judgment and the parties are one and the same, both the second appeal and the cross objection are taken up and heard together and disposed of by way of this common Judgment.
3(i) The case of the first respondent/cross objector/plaintiff Page No.5/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 as per the amended plaint, is that the suit property is a lane. Originally, the suit property and other properties north of the same belonged to the first respondent/cross objector/plaintiff's father-in- law, by name, Sannasi Nadar, who purchased the same from one Muthu Vijayan Nadar on 03.01.1952. From the said date onwards, he had been in possession and enjoyment of the same. Door No.24A was constructed by him on the immediate north of the suit lane. There are three windows in the southern wall of the said house. Through the said windows, the first respondent/cross objector/plaintiff's predecessor-in-title were enjoying free light and air. The roof and rain water is drained only through the said lane. The repairs and whitewashing had been done to the southern wall of Door No.24 by the first respondent/cross objector/plaintiff's predecessor-in-title only through the said lane. Since the first respondent/cross objector/plaintiff's husband died, the said Sannasi Nadar executed a registered gift deed on 24.04.1985 in favour of the first respondent/cross objector/plaintiff. In the said deed, the said Page No.6/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 lane is shown as exclusive lane of the said Sannasi Nadar. The first respondent/cross objector/plaintiff accepted the gift and she has been in possession and enjoyment of the properties mentioned in the gift deed. Thereafter, the said Sannasi Nadar executed another unregistered deed on 14.03.1987 giving absolute right in the suit lane in favour of the first respondent/cross objector/plaintiff stating that he had omitted to include the said lane in the gift deed, dated 24.04.1985. Since the said deed was unregistered, the said Sannasi Nadar executed another registered gift deed on 02.12.1988 in favour of the first respondent/cross objector/plaintiff. The first respondent/cross objector/plaintiff accepted the same and she has been in possession and enjoyment of the said lane. Thus, the suit property is the absolute property of the first respondent/cross objector/plaintiff.
3(ii) The further case of the first respondent/cross objector/plaintiff is that the deceased first appellant/first defendant Page No.7/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 is the owner of the property situated next south of the suit lane. She has no manner of right, title or interested over the suit property nor did she exercise any right over the said lane. While so, from the 2nd week of December, 1988, the first appellant/first defendant is trying to interfere with the first respondent/cross objector/plaintiff's possession and enjoyment of the suit property. She is trying to put up drainage in the suit lane and to connect the same with the Municipal drainage. She has no right to do so. If she puts up any drainage in the said lane, bad odour will emanate from the drainage and cause great nuisance to the first respondent/cross objector/plaintiff and her family members. The 1st respondent/cross objector/plaintiff prevented the 1st appellant/1st defendant from putting up the drainage. But she has been holding out that she will put up drainage at any cost. In spite of the first respondent/cross objector/plaintiff's objection, the 2nd respondent/Municipality has permitted the first appellant/first defendant to put up drainage. The first appellant/first defendant has been falsely claiming ownership Page No.8/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 over the suit lane. Therefore, the suit was filed for declaration of title and for consequential injunction restraining the first appellant/first defendant from putting up any drainage in the suit property or from interfering with the first respondent/cross objector/plaintiff's possession and enjoyment of the suit property.
3(iii) The further case of the first respondent/cross objector/plaintiff is that after filing of the suit, while the first respondent/cross objector/plaintiff was away from the town, the first appellant/first defendant has put up latrine in the suit lane within a feet from the first respondent/cross objector/plaintiff's wall and connected it with the drainage through the said lane. Just before filing of the suit, the first appellant/first defendant has extended the tiled shed into the suit property. The second respondent/second defendant/Municipality is added only as a formal party.
4(i) The case of the first appellant/first defendant, as per the Page No.9/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 written statement, is that it is incorrect to state that the suit property is a lane. The suit property is the northern portion of the first appellant/first defendant's house. In the said property, cattle shed, latrine and drainage belonging to the first appellant/first defendant are situated. The suit property never belonged to Sannasi Nadar or Muthu Vijayan Nadar at any time. This first appellant/first defendant does not know about the sale deed, dated 03.01.1952. The first respondent/cross objector/plaintiff's father-in-law had not been in possession of the suit property. The suit property is in possession and enjoyment of this first respondent/first appellant from 1954 onwards. The first respondent/cross objector/plaintiff put up windows with the permission of the first appellant/first defendant recently. The process for draining the roof water was made illegally by the first respondent/cross objector/plaintiff. But through the said process, water will not pass through. The first respondent/cross objector/plaintiff never whitewashed the southern portion of her wall from the suit property. The first appellant/first defendant is not Page No.10/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 aware of the gift deed, dated 24.04.1985.
4(ii) The further case of the first appellant/first defendant that it is evident from the fact that for the purpose of suit, on 14.03.1987 and 02.12.1988 separate deeds have been created in respect of the alleged lane. It also shows that the first respondent/cross objector/plaintiff had no right to any lane. Moreover, the alleged land portion has been in the hostile and notorious possession of the first appellant/first defendant and her predecessor-in-title and therefore, she has perfected title by adverse possession. This fact is borne out from the boundaries in the sale deeds in favour of the first appellant/first defendant and from the survey records. This first appellant/first defendant's predecessor-in-title, on the west in the suit property, has put up a latrine. The first appellant/first defendant, around in the year 1958, has put up cattle-shed in the suit property. Over the entire suit property, she has also put up cement plastering and granite flooring from about 1958 onwards. The first Page No.11/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 appellant/first defendant's predecessor-in-title had put up a drainage on the northern end in the suit property adjoining the first respondent/cross objector/plaintiff's wall. The said physical feature are still there in the suit property. Therefore, it is incorrect to state that the first appellant/first defendant has no right or possession over the suit property and that she has got right over the southern property alone. In the suit property, there is a waste water channel always. The first appellant/first defendant has got every right to put up or alter the same. The first appellant/first defendant never put up any fresh flush-out latrine. She put up latrine one year back and she connected the same with the underground drainage. For this, the first appellant/first defendant has obtained licence from the second respondent/Municipality. The first respondent/cross objector/plaintiff also is not in possession of the suit property.
4(iii) It is the further case of the first appellant/first defendant that if it is alleged that the latrine was put up after the suit, there will Page No.12/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 be a separate cause of action and therefore, separate suit alone has to be filed. The said latrine was constructed long back before the suit. Therefore, the first respondent/cross objector/plaintiff is not entitled to ask for removal of the same. She is also estopped from claiming soon on account of her acquiescence. New reliefs are added with mala-fide intention. The pipes and latrine are situated only in the first appellant/first defendant's separate property. The first respondent/cross objector/plaintiff has no right to remove the same.
5. The case of the second respondent/second defendant/Municipality is that it is not admitted that the second defendant/Municipality has permitted to lay drainage pipes. No decree can be passed against the Municipality, since they are unnecessary party.
6. Whereas it is the further case of the first respondent/cross objector/plaintiff that it is false to allege that the Page No.13/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 windows were put up with the permission of the first appellant/first defendant recently. It is also false to state that the said lane has been in hostile and notorious possession of the first respondent and her predecessor-in-title. It is incorrect to state that the first respondent/cross objector/plaintiff never enjoyed the suit property. The latrine stated in the written statement of the first appellant/first defendant is situated on the west of the suit property. It is false to state that the first appellant/first defendant has put up cattle shed and cement flooring in or around 1958. It is also incorrect to state that with the permission of the second respondent/second defendant/ Municipality, the first appellant/first defendant put up flush out latrine about a year back. Since amendment petition has been allowed, the first appellant/first defendant is not entitled to raise any objection with regard to the above said matters. Only after the suit, latrine etc., were put up.
7. The trial Court, considering the pleadings, framed the Page No.14/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 following issues:
"(i). Whether the plaintiff is entitled to get the relief?
(ii) Whether the suit property belongs to the plaintiff and whether she is in possession of the suit property ?
(iii) Whether the suit property belongs to the first defendant and whether she is in possession of the property?
(iv) Whether the plaintiff is entitled to restrain the drainage put up by the first defendant?
(v) To what other relief the plaintiff is entitled to? "
During the trial, on the side of the first respondent/cross objector/plaintiff, four witnesses were examined as P.W.1 to P.W.4 and twenty documents were marked as Ex.A-1 to Ex.A-20. On the side of the first appellant/first defendant, four witnesses were examined as D.W.1 to D.W.4 and 53 documents were marked as Page No.15/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 Exs.B-1 to B-53. Besides, three Court documents were marked as Exs.C-1 to C-3. After trial, the trial Court found that the first respondent/cross objector/plaintiff had not proved the case and hence, dismissed the suit. As against which, the first respondent/cross objector/plaintiff filed the appeal suit before the first appellate Court. The first appellate Court has dismissed the appeal suit by observing that the trial Court has failed to observe the first respondent/cross objector/plaintiff's right with regard to air, light, drainage of water etc. Hence, the first appellate Court confirmed the Judgment and Decree of the trial Court subject to the above observation with regard to the first respondent/cross objector/plaintiff's right to air, light, drainage water, white washing etc. Therefore, challenging the said observation, the first appellant/first defendant has filed the present second appeal. Though the first respondent/cross objector/plaintiff has not filed any second appeal challenging the dismissal of the appeal suit filed by her, after filing the present second appeal by the first Page No.16/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 appellant/first defendant, she has filed the present cross objection.
8. While admitting the second appeal on 17.10.1997, this Court, considering the facts and circumstances of the case, has formulated the following substantial question of law:
“Whether the order of the Lower Appellate Court while dismissing the appeal, making a reservation by observing that the respondents are entitled to the right of air and light is tenable in law?”
9. The learned counsel appearing for the appellants would submit that the first respondent/cross objector/plaintiff has originally filed the suit for declaration and injunction and subsequently, after filing the written statement, she had chosen to amend the plaint for the consequential relief of mandatory injunction to remove the latrine and drainage constructed. Even prior to filing of the suit itself, the latrine was put up and the drainage was also Page No.17/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 constructed. The first respondent/cross objector/plaintiff suppressing the said fact, filed the suit for declaration. After the pleadings and also after inspection of the Advocate Commissioner, the first respondent/cross objector/plaintiff had chosen to amend the plaint from permanent injunction to mandatory injunction. The trial Court has clearly given a finding that the first respondent/cross objector/plaintiff has not proved her title and also possession of the property and also already constructed both latrine and drainage. Therefore, she amended the above said relief of permanent injunction to mandatory injunction. Since the trial Court dismissed the suit for the relief of declaration and mandatory injunction, the first respondent/cross objector/plaintiff has filed the appeal suit before the Principal District Court, Tuticorin. The first appellate Court also re-appreciated the evidence and dismissed the appeal, however, erroneously, has given certain observations and granted the relief of easmentary right to use the latrine and drainage and there is a wall and not stopped with that and also the 'word' employed in the Page No.18/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 Judgment is not only granted 'etc'.
10. The learned counsel would further submit that the learned first appellate Judge, while dismissing the appeal suit, granted the alternative relief by way of moulding the relief. The right of easement is an independent relief which is not an ancillary or consequential relief. Once the first respondent/cross objector/plaintiff filed the suit for declaration declaring the said suit property is the absolute property of them and the first appellant/first defendant should not interfere with the possession and enjoyment, later, it was found that the first appellant/first defendant had put up a latrine and drainage connection and the Commissioner's Report has also proved the same. Therefore, declaratory right and easementary right are mutually contradicted each other. The declaratory relief is that the man is claiming own right and title of his property as of his own, whereas, the right of easementary will claim from the other man's property. When he sought for the relief of declaration, as if the Page No.19/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 property belongs to him, he cannot claim a easementary right from his own property. The said proposition of the law has not been followed by the first appellate Court. While dismissing the appeal and declining the relief of declaration and also the mandatory injunction, it is erroneous to give a relief of the easementary right and that too, the first appellate Court has not granted the specific right of easement and they have given the unlimited right by using the word 'etc'., which is against the law. Further, based on the oral and documentary evidence, both the Courts below found that the first appellant/first defendant has proved her right and title and the Commissioner's Report also clearly shows that it is the property of the first appellant/first defendant. Therefore, the trial Court dismissed the suit and declined the relief of declaration and mandatory injunction. The first appellate Court has also confirmed the same by dismissing the appeal suit filed by the first respondent/cross objector/plaintiff, however, erroneously, granted other relief of easementary right, which has not been sought for by Page No.20/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 the first respondent/cross objector/plaintiff in the suit.
11. The learned counsel would further submit that it is well settled proposition of law that no relief can be granted without any pleadings and proofs. In this regard, the first appellate Court has not given opportunity to the first appellant/first defendant to put forth her case and no issue and point for consideration was framed by the Courts below in this regard.
12. The learned counsel would further submit that the first appellate Court has formulated the points for consideration, namely, whether the appellant therein/plaintiff has got title and possession over the suit property?; whether the appellant therein/plaintiff is entitled to declaration of title, permanent injunction and mandatory injunction as prayed for and whether the first respondent/first defendant/appellant herein has got title and possession over the suit property? The first appellate Court also negatived the first two Page No.21/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 points against the first respondent/cross objector/plaintiff and the appellant in the first appeal and found that the deceased first appellant herein and the first respondent in the said first appeal has got title and possession over the suit property. Therefore, the first appeal was dismissed. Whereas, without any pleadings and evidence and even without giving opportunity to the first appellant herein to substantiate her case, though the first appellate Court has not granted the main relief of declaration and mandatory injunction, based on the Commissioner's Report, has only given right with regard to air, light and drainage of water and not stopped with that and the word 'etc.,' is inserted, which granted unlimited right of easement. The first respondent/cross objector/plaintiff has neither pleaded in her plaint and nor sought for any alternative relief. However, without following the basic principles, the first appellate Court has granted the relief, which warrants interference. In support of her contentions, the learned counsel for the appellants placed reliance on a judgment of the Honourable Supreme Court in the case Page No.22/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 of Bachhaj Nahar vs. Nilima Mandal and another, reported in (2008)17 SCC 491.
13. The learned counsel for the first respondent/cross objector/plaintiff would submit that the first respondent/cross objector/plaintiff has established her title and right over the property and both the Courts below failed to consider the oral and documentary evidence. He would further submit that the first appellate Court failed to take into consideration the fact that the first respondent/cross objector/plaintiff is bearing Door No.24A, which is shown in Ex.A1-Gift Deed, dated 24.04.1985, bounded by the suit land belongs to the Donor of Ex.A1. The east west suit land mentioned in Ex.A1 situated on the south of the first respondent/cross objector/plaintiff's house, is another land and that the said land is not gifted to the first respondent/cross objector/plaintiff and the recital in Ex.A1 will not in any way bind the first appellant/first defendant as she is not a party to it. He Page No.23/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 would further submit that if at all the suit land did not belong to the deceased original owner Sannasi Nadar, he could not have shown in Ex.A1-Gift Deed. Both the Courts below have oversight the recitals mentioned in Ex.A1-Gift Deed. The recitals by itself clearly established that the suit land exists within the vacant site belongs to the deceased Sannasi Nadar on the south of the Door No.24A. Though the first appellate Court, while accepting the fact that the first respondent/cross objector/plaintiff's door No.24A was constructed by the deceased Sannasi Nadar after purchased by him under Ex.A13 on 03.01.1952, has failed to take into consideration the probability that he could have set apart the suit land on the south of the said house Door No.24A as mentioned in Ex.A1-Gift Deed. Both the Courts below failed to give importance to the recital in Ex.A1 with regard to the suit land and failed to take into consideration that it has been proved by P.W.1, who is none other than the son-in-law of the deceased donor and the other attestors are none other than the sons of the deceased donor. Ex.A2 was rejected by both the Courts Page No.24/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 on the ground that the same was executed 16 years prior to the filing of the suit. He would further submit that both the Courts below erroneously held that Exs.A14 to A20 revealed that the suit property belongs to the first appellant/first defendant.
14. The observation in para 16 of the Judgment is the self contradictory to his earlier observation. In the same para, it is stated that the unauthorized construction referred to in the document is only Door No.23, which is situated on the south of the suit property. Therefore, the trial Court failed to consider the recital in Ex.A13 dated 03.01.1952 and Ex.B1 dated 09.02.1952 and they failed to consider those documents and oral and documentary evidence. The reason stated by the first appellate Court for rejecting the first appellant/first defendant's documents is not correct and the same is erroneous. The suit lane is the 'Mudukku', which is originally belonged to Muthu Vijaya Nadar and thereafter, Sannasi Nadar, who is none other than the Donor of the first respondent/cross Page No.25/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 objector/plaintiff. The said lane was in existence even prior to 31.01.1952, which is evidenced by Ex.A13 which obviously proved to be purchased by the first appellant on 04.02.1954 which was lost sight of the judgment of the first appellate Court. Even the measurement in Exs.B1 and B2, the title deeds, are mentioned as Thachumulam, whereas, the measurement in Ex.A1 is mentioned as feet and that the first appellate Court has failed to correlate or reconcile the measurement in Exs.B1 and B2 with that in Ex.A1. Therefore, the Courts below failed to consider the recitals of the original documents and also subsequent gift deed and also oral evidence and also Commissioner's Report and the dismissed the suit.
15. The learned counsel for the first respondent/cross objector/plaintiff would further submit that though the first appellate Court has dismissed the appeal, however, granted easementary right and therefore, the first respondent/cross objector/plaintiff did not file any appeal. Since the first Page No.26/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 appellant/first defendant has filed the present Second Appeal, the first respondent/cross objector/plaintiff has filed the present cross objection under Order 41 Rule 22 C.P.C. Since the trial Court totally dismissed the suit, the first respondent/cross objector/plaintiff has filed the appeal suit. The first appellate Court though dismissed the appeal suit for main relief however, granted the easementary right regarding the said lane. Therefore, the first respondent/cross objector/plaintiff has not filed any appeal. However, the first appellant/first defendant has filed the present second appeal, who are the first respondent in the first appeal. As a matter of right, the first respondent/cross objector/plaintiff has filed the present cross objection. He would further submit that when suit is filed for larger interest and when the Court finds that he is not entitled to the larger relief, in the interest of justice, the Court can grant the lesser relief. There is no bar to the Court to grant lesser relief. Though the first respondent/cross objector/plaintiff has filed the suit for declaration and mandatory injunction, the suit property has been shown only as Page No.27/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 the lane and though the declaration and mandatory injunction has not been granted by both the Courts, however, the first appellate Court granted right to use the said lane by enjoying easementary right and therefore, it is only a lesser relief. The Courts have always got every power to mould the relief and grant the relief to the parties. Hence, the learned counsel prays for dismissal of the second appeal and also sought for the relief in the cross objection. In support of his contention, the learned counsel placed reliance on a Judgment of this Court in the case of Bagavathiappa Gounder alias Bavuthiyappa Gounder vs. Karuppaiyan & others, reported in 2012-2-L.W.504.
16. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents and perused the materials available on records.
17. The cross objector herein is the plaintiff and in the suit, she has not sought for any relief of easementary right and she only filed Page No.28/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 the suit for declaration and injunction and subsequently, she amended the plaint for consequential relief of mandatory injunction. The said suit was dismissed by the trial Court. The first appellate Court has also dismissed the appeal and confirmed the Judgment of the trial Court, however, the first appellate Court granted easementary right to use the light and air and drainage water, which is not in the relief sought for by the first respondent/cross objector/plaintiff in the plaint. Therefore, without pleadings and without relief being sought for, the Court cannot grant, which is the submission of the learned counsel for the appellants.
18. Though the first respondent/cross objector/plaintiff has challenged the Judgment of the trial Court before the first appellate Court, the first appellate Court dismissed the appeal. Though the first respondent/cross objector/plaintiff has not filed any appeal against the Judgment of the first appellate Court, the first appellant/first defendant has filed the present second appeal against Page No.29/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 the observation made by the first appellate Court. Therefore, as per Order 41 Rule 22 C.P.C, the first respondent/cross objector/plaintiff has filed the present cross objection. Even assuming that the first respondent/cross objector/plaintiff is not entitled to get the relief of declaration and mandatory injunction, from the pleadings, if the Court finds that even the right of the first respondent/cross objector/plaintiff is found to be lesser, it has to mould the relief accordingly on the facts proved and grant the same. In this case, though the trial Court dismissed the suit and the first appellate Court has also rejected the main relief, however, granted the lesser relief that the first respondent/cross objector/plaintiff's properties need light and air and also drain the water and do the repairing work of her farm situated in the suit lane and therefore, there is nothing harm to grant the lesser relief and therefore, the learned counsel for the first respondent/cross objector/plaintiff prays that the present second appeal filed by the first appellant/first defendant has to be dismissed.
Page No.30/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999
19. Admittedly, the first respondent/cross objector/plaintiff filed the suit for declaration that the suit land belongs to her. Though the first respondent/cross objector/plaintiff initially filed the suit for declaration and injunction not to disturb or interfere and also to put up latrine and to construct drainage on the suit lane and connect the drainage into the Municipality's, since the first appellant/first defendant filed written statement stating that already, they completed the construction, the first respondent/cross objector/plaintiff filed the petition to amend the prayer from the permanent injunction into the mandatory injunction to remove the constructed portion. The first respondent/cross objector/plaintiff filed the suit based on the gift deed and even in the gift deed, one of the boundaries also shows the suit lane and the suit lane within the first respondent/cross objector/plaintiff's property and she filed the documents, however, the trial Court found that she has not established the gift deed and also she has not produced the original Page No.31/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 gift deed and the first respondent has also not come to the witness box and the first appellant/first defendant is not a party to the gift deed and therefore, it does not bind on him.
20. On a perusal of the oral and documentary evidence, especially, the Commissioner's Report, it is found that it is the suit lane within the properties of the first appellant/first defendant and therefore, the trial Court rightly held that the first respondent/cross objector/plaintiff has not proved the title. Since the latrine and drainage has already been constructed, the first respondent/cross objector/plaintiff sought for mandatory injunction. Since the same lies within the property of the first appellant/first defendant, that was also disallowed. However, the first appellate Court granted easementary right of light and air and also to drain the water and also the other relief, like the repairing wall, white washing, for which, instead of mentioning the repairing and white washing the other incidental work, the first appellate Court mentioned as etc. Page No.32/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999
21. Though the first respondent/cross objector/plaintiff lost the first appeal and she has not challenged that disallowing the relief of declaration and mandatory injunction, however, the first appellant/first defendant has challenged the grant of easementary right to the first respondent/cross objector/plaintiff by filing the present second appeal. Though the first appellant/first defendant has filed the present second appeal in the year 1997, the first respondent/cross objector/plaintiff filed the cross objection challenging the dismissal of declaratory and mandatory injunction on 31.03.1998. Without filing the appeal against the dismissal of the declaration and mandatory injunction, after filing the second appeal by the first appellant/first defendant challenging the observation made by the first appellate Court, the first respondent/cross objector/plaintiff filed the cross objection. Both the second appeal and the cross objection have been taken up together since they are arising out of the same Judgment.
Page No.33/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999
22. While admitting the second appeal, this Court has formulated the substantial question of law as mentioned above. Therefore, the only question is while dismissing the first appeal by the first appellate Court regarding the declaratory relief and mandatory injunction, can it be made an observation that the first respondent/cross objector/plaintiff is entitled to the relief of light and air.
23. The main contention raised by the learned counsel for the appellants is that there are no pleadings and there is no relief sought for regarding the easementary right of light and air. Therefore, the first appellate Court cannot grant without any pleadings and issues and no opportunity was given to the first appellant/first defendant to make out their case with regard to the said relief. It was surprised to the first appellant/first defendant that though there were no pleadings and prayer and there was no specific issue, the first Page No.34/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 appellate Court granted the relief of easementary right of light and air. However, the learned counsel for the first respondent/cross objector/plaintiff would contend that when the Court finds that the parties are entitled to the lesser relief, then what they sought for it, always the Court can mould the relief and grant the lesser relief.
24. A reading of the plaint would show that the first respondent/cross objector/plaintiff has pleaded that based on the gift deed, the suit lane absolutely belongs to the first respondent/cross objector/plaintiff, however, based on the evidence and the Commissioner's Report, the suit lane is within the property of the first appellant/first defendant. However, the first respondent/cross objector/plaintiff has stated in para 4 of the plaint that the original owner Sannasi Nadar purchased the property from one Muthu Vijayan Nadar, by means of a registered sale deed dated 03.01.1952. From the date of purchase, he was in possession and enjoyment of the same and the building bearing Door No.24A was Page No.35/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 constructed by him. The said property situated immediate to the north of the schedule lane. There are three windows in the southern wall of the said house. Through the said windows, the first respondent/cross objector/plaintiff's predecessors were enjoying the free light and air. The roof and rain water got strained only through the suit lane. The repair and white washing were done to the southern wall of door No.24A by the first respondent/cross objector/plaintiff's predecessors in title to the suit lane. Thereafter, the first respondent/cross objector/plaintiff's husband died, the said Sannasi Nadar executed registered gift deed on 24.04.1985 in favour of the first respondent/cross objector/plaintiff. The suit lane was shown as the exclusive lane of the said Sannasi Nadar in the said gift deed. The first respondent/cross objector/plaintiff has also accepted the gift and she was in possession and enjoyment of the property. Thereafter, the said Sannasi Nadar executed another deed dated 14.03.1987 giving absolute right in the suit lane in favour of the first respondent/cross objector/plaintiff stating that he omitted to include Page No.36/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 the suit lane in the above said gift deed dated 24.04.1985. The said deed is an unregistered deed and hence, subsequently, he executed another registered deed dated 12.04.1984 in respect of the suit lane in favour of the first respondent/cross objector/plaintiff. The first respondent/cross objector/plaintiff has also accepted the same and possession over the property. However, the first appellant/first defendant is not party to the same and the first respondent/cross objector/plaintiff was not examined as witness and no independent witness was examined and both the Courts below found that the first respondent/cross objector/plaintiff has not proved the title and also the suit lane falls within the first appellant/first defendant's property and also she already constructed a portion. Therefore, the first respondent/cross objector/plaintiff is neither entitled to get a relief of declaration nor entitled to get a relief of mandatory injunction. Though the first respondent/cross objector/plaintiff filed the first appeal, the first appellate Court has also dismissed the same, however, the first appellate Court has made certain observations as Page No.37/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 stated above. Challenging the same, the first appellant/first defendant has filed the present second appeal. Though the first respondent/cross objector/plaintiff has not filed any appeal challenging the dismissal of appeal for declaration and mandatory injunction, after filing the second appeal by the first appellant/first defendant, she has filed the present cross objection regarding the dismissal of the declaration and mandatory injunction.
25. A perusal of the records would show that as stated above in para 4 of the plaint, even prior to the execution of the gift deed, in which, the first respondent/cross objector/plaintiff is tracing the title of the suit lane, the first respondent/cross objector/plaintiff has stated that the original owner Sannasi Nadar purchased the property and constructed the building and left suit lane for using light and air and also drain the water. Therefore, the first appellate Court, while giving finding that the first respondent/cross objector/plaintiff has not proved the title and hence, she is not entitled to get mandatory Page No.38/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 injunction, considering the fact that Sannasi Nadar constructed a building in Door No.24.A and in the suit wall, facing the suit lane, there are windows and even the predecessors-in-title were enjoying the free light and air and roof water is drained through the suit lane and the repairs and white washing have been done to the southern wall of the Door No.24A, has granted the above said relief. Therefore, the contention of the learned counsel for the appellants that there was no pleading, is not accepted.
26. Further, the first respondent/cross objector/plaintiff has also not proved the gift deed in the manner known to law by examining the attestors to the gift deed by producing original gift deed. Therefore, the Commissioner's Report shows that still the building in Door No.26-A was existing and there are windows and the free light and air has to be passed through the suit lane to the said building and the water also are being drained through the said suit lane. In order to do the repair or white washing of the building in Page No.39/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 Door No.24A, the first respondent/cross objector/plaintiff has to use the said suit lane. Therefore, there is nothing wrong to grant the said relief to the first respondent/cross objector/plaintiff. Even though the relief of easementary right has not been sought for by the first respondent/cross objector/plaintiff, the pleadings and evidence clearly shows that the building in Door No.24A requires light and air and to drain the water and roof and rain water and also it requires to be whitewashed and also repairs. Therefore, there is a pleading and the first appellant/first defendant has got every chance to dispute the same and hence, the said opportunity was available even at the time of filing the original written statement.
27. Considering the facts and circumstances of the case and also considering the Commissioner's Report and Plan, though the first appellate Court finds that the first respondent/cross objector/plaintiff is not entitled to absolute right over the suit lane and mandatory injunction, the Court granted the relief that she is Page No.40/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 entitled to get free light and air and stained drain water and roof and rain water and also use the lane for doing white-washing and repair works. Therefore, there is no merit in the appeal and the substantial question of law is answered accordingly and the second appeal is dismissed.
28. As far as the cross objection is concerned, as already stated, from the oral and documentary evidence, both the Courts below found that the first respondent/cross objector/plaintiff has not proved her absolute right and entitlement of mandatory injunction. Challenging the said finding of the trial Court, she filed the appeal suit. However, the first appellate Court dismissed the appeal suit. The first respondent/cross objector/plaintiff has not filed the further appeal challenging the Judgment of the first appellate Court, however, she filed the cross objection after filing the second appeal by the first defendant.
Page No.41/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999
29. On a careful perusal of the cross objection, it is seen that the first respondent/cross objector/plaintiff has stated that her predecessor in title had purchased the property in the year 1952 and constructed the building in Door No.24A. This fact was not disputed. However, gifting the lane by the deceased predecessor in title to the first respondent/cross objector/plaintiff, is in dispute. It is for the first respondent/cross objector/plaintiff to prove the gift deed in the manner known to law and also let in proper evidence and the Commissioner's Report shows otherwise and therefore, both the Courts below which are the fact finding Courts, are given finding regarding the title and the enjoyment. This Court cannot sit over as the first appellate Court to re-appreciate the evidence. This Court has to see as to whether there is any perversity in appreciation of evidence while appreciating and re-appreciating the evidence, which leads to the substantial question of law to be answered. However, a perusal of the records would show that both the Courts have given a finding that the first respondent/cross objector/plaintiff has not Page No.42/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 proved her title over the suit lane. No doubt, the Door No.24A is abutting to the suit lane and even as per the evidence and also the Commissioner's Report, there are windows and also roof way of the said building was also projected on the suit wall. If at all the rain falls, the water has to drain. Since there are windows much prior to the filing of the suit and also gift deed, it requires free light and air. Since no other space except the suit lane to do the entire repair works and also white-washing in the Southern wall of the Door No.24A, even though the first respondent/cross objector/plaintiff is not entitled to get the declaration of the suit lane, once the Court finds that the suit lane is not the first respondent/cross objector/plaintiff's lane and the building in Door No.24A is the cross objector's property and in the Southern wall of the said building, there are windows and through the said windows, light and air to be received and also the cross objector is entitled to get free light and air, since roof is projected in the suit lane, the rain water has to be drained through that lane. The Southern wall is required in case it is necessary for Page No.43/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 white-washing. In the interest of justice, this Court can always mould the relief. From a reading of Commissioner's report, it is seen that there is no prejudice caused to the appellant.
30. Therefore, under these circumstances, this Court does not find any perversity in appreciating and re appreciating the evidence by both the Courts below and the substantial question of law is answered accordingly. Hence, this cross objection is liable to be dismissed.
31. In the result, both the Second Appeal and the Cross Objection are dismissed. The Judgment and Decree dated 05.07.1996 made in A.S.No.403 of 1994, on the file of the learned Principal District Judge, Tuticorin, are confirmed. There shall be no order as to costs in both the Second Appeal and the Cross Objection.
12.07.2023
Neutral Citation Case : Yes/No
Index : Yes/No
Internet : Yes
Page No.44/47
https://www.mhc.tn.gov.in/judis
S.A.No.1399 of 1997 &
Cros.Obj.No.68 of 1999
skn/cs
To
1.The Principal District Judge, Tuticorin,
2.The Additional District Munsif, Tuticorin.
3. Tuticorin Municipality, through its Commissioner, W.G.C.Road, Tuticorin.
4.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
Page No.45/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 P.VELMURUGAN, J skn COMMON JUDGMENT MADE IN S.A.No.1399 of 1997 and CROS.OBJ.No.68 of 1999 Page No.46/47 https://www.mhc.tn.gov.in/judis S.A.No.1399 of 1997 & Cros.Obj.No.68 of 1999 12.07.2023 Page No.47/47 https://www.mhc.tn.gov.in/judis