Madras High Court
Swamynathan vs Dhanalakshmi on 10 June, 2019
Equivalent citations: AIRONLINE 2019 MAD 205, (2019) 5 MAD LW 56
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.(MD)No.681 of 2009
[Judgment Reserved on 12.04.2019]
Swamynathan ... Appellant / Appellant / Defendant
Vs.
Dhanalakshmi ... Respondent / Respondent/ Plaintiff
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the Decree and Judgment in A.S.No.161 of 2005, dated 29.11.2008, on the
file of the Sub Court, Thoothukudi, confirming the Judgment and Decree in
O.S.No.62 of 2002, dated 06.10.2004, on the file of the Additional District
Munsif Court, Thoothukudi.
For Appellant : Mr.PT.S.Narendravasan
For Mr.T.K.Gobalan
For Respondent-6 : Mr.C.Selvaraj
For Respondents : No Appearance
(R1 to R5)
http://www.judis.nic.in
2
JUDGMENT
Aggrieved over the concurrent findings made in O.S. No.62 of 2002, on the file of the Additional District Munsif Court, Thoothukudi and in A.S.No.161 of 2005, on the file of the Sub Court, Thoothukudi, the appellant, who is the defendant in the suit, filed this present Second Appeal. Before the trial Court the plaintiff filed the suit and seeking the relief of declaration, declaring that the plaintiff is exclusively entitled to the 2nd and 3rd schedule wall and consequently, restraining the defendant and his men and agents from interfering with the possession and enjoyment of 3rd schedule wall by putting up any construction, touching or resting on the 3rd schedule wall. Further, in the said suit, he prayed the relief of mandatory injunction to remove the construction put up by the defendant touching the 2nd schedule wall.
2. By Judgment and decree dated 06.10.2004, the learned Additional District Munsif, Thoothukudi, partly decreed the suit, granting the relief of declaration and permanent injunction with respect to the hallow bricks wall to the extent of 36 feet in the 3rd schedule property. However, he dismissed the suit in respect to other reliefs sought for by the plaintiff. Aggrieved over the said findings, the appellant / defendant filed an appeal before the Sub-Court, Thoothukudi in A.S.No.161 of 2005. By Judgment and Decree, dated 29.11.2008, the learned Subordinate Judge, Thoothukudi, dismissed http://www.judis.nic.in 3 the appeal and confirmed the trial Court Judgment.
3. For the sake of convenience, the parties are referred to as, as described before the trial Court.
4. The averments made in the plaint, in brief, are as follows:-
(i) By virtue of a registered sale deed, dated 28.08.1998, the plaintiff purchased the 1st schedule plaint property from one Sornavel Andi @ Kandasamy Pannaiyar and Gomathiammal. The 2nd and 3rd schedule properties are the compound wall of the plaintiff''s house and form part of the 1st schedule property. For clear description of the property, a rough plan is annexed with the plaint. The 2nd schedule property, which is the northern portion of the compound wall, is shown as ”AE” in the rough plan and the southern portion of the compound wall, which is the 3rd schedule property, is shown as “FD”. The 1 st schedule property is described in the rough plan as “ABCD”.
(ii) At the time of purchase, only in the portion shown as, “EF”, there was a common wall present and it approximately measures 39.6 feet. The roof of the defendant rest in the “EF” portion above. The plaintiff consulted the defendant to construct a common wall, but the defendant failed to co-
operate for constructing the wall. Thereby, in the month of June 2001, the http://www.judis.nic.in 4 plaintiff constructed “AE” and “FD” wall in his portion of the land and after that the plaintiff is in the possession and enjoyment of the 2nd and 3rd schedule wall. Even at the time of construction, the plaintiff left a space for the defendant on the western side of 'A E' and 'F D' portion, so as to facilitate the defendant to put up construction. During the month of October 2001, the defendant put up a tiled shed, by touching the 2nd schedule wall. The plaintiff informed the elders of the area and thereafter the defendant promised to remove them, but he does not done so. In the month of February 2002, the defendant attempted to put up a construction, touching the 3rd schedule wall. In fact, the defendant has no right to put up construction touching or resting the 2nd and 3rd schedule wall. Hence, the suit is filed for the relief of declaration and injunction.
5. The averments made in the written statement filed by the defendant, in brief, are as follows:-
The plaint 2nd and 3rd scheduled properties are the common properties both to the plaintiff and the defendant. The predecessor of the plaintiff Sornavel Andi @ Kandasamy Pannaiyar and his wife Gomathiammal had entered into an agreement with one Leela Ammal. The said agreement was executed on 27.12.1982 and as per the said agreement, the suit wall is measuring the length of 94 feet. The house property, bearing Door No.84-A, which is situated on the western side of the 1st scheduled property, belongs http://www.judis.nic.in 5 to the defendant and to his predecessor. In earlier, since the 3rd schedule wall is in a dilapidated condition, the defendant approached the plaintiff through one Ponniah Pannaiyar, who was Ex-Municipal Councillor, for constructing a new wall. The plaintiff constructed the wall with hollow bricks, for which the defendant had contributed a sum of Rs.1,500/-, towards construction of a new wall. The house belongs to the plaintiff was situated two meters away from the suit wall. There was no panchayat in respect to use of common wall. According to the defendant, the suit is liable for dismissal.
6. Based on the above pleadings, the learned Additional District Munsif, Thoothukudi, framed necessary issues and tried the suit.
7. Before the trial Court, on the side of the plaintiff, 2 witnesses have been examined as P.Ws.1 & 2 and 7 documents were marked as Exs.A1 to A7. On the side of the defendant, 2 witnesses have been examined as D.Ws. 1 and 2 and 2 documents were marked as Exs.B1 and B2. Apart from that, the report and plan filed by the Advocate Commissioner was marked as Exs.C1 and C2.
8. Having considered all the materials placed before him, the learned Additional District Munsif, Thoothukudi, partly allowed the suit in respect to the prayer sought for by the plaintiff, pertaining to the 3rd schedule http://www.judis.nic.in 6 property. In the appeal, the learned Subordinate Judge, Thoothukudi, confirmed the Judgment of the trial Court and dismissed the appeal. Feeling aggrieved over the findings arrived at by the Courts below, the appellant / defendant is before this Court with the present Second Appeal.
9. In the said circumstances, while at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
(1). Whether the Courts below are correct in coming to the conclusion that the 3rd schedule wall is the exclusive wall of the respondent when there is no documentary evidence to prove the same and when the admitted documents Exs.A1, A2, A5 and B1 are describing it as common wall?
(2) Whether the Courts below have arrived at perverse conclusion regarding the character of the 3rd schedule wall, when the documentary evidence and oral evidence of the appellants are contra to the oral evidence of the respondent?
(3). Whether the Courts below are correct in deciding a portion of the entire wall as exclusive wall when the character of 2/3rd length of the remaining wall is declared as common wall?” http://www.judis.nic.in 7
10. Before the trial Court, as already stated, the plaintiff filed a suit for the relief of declaration in respect to 2 nd and 3rd schedule of suit properties. Further, he sought the relief of mandatory injunction to remove the construction put up by the defendant touching the 2nd schedule wall. The Courts below negatived the relief prayed by the plaintiff in respect to the 2nd schedule suit property. Only in respect to the 3rd schedule suit property, the Courts below granted a decree in favour of the plaintiff. Accordingly, in respect to the plaint 2nd schedule suit property, the plaintiff is the aggrieved party. But he has not preferred any appeal against the findings arrived at by the Courts below. On the other hand, in regard to the 3rd schedule property, since the decree was granted in favour of the plaintiff, the defendant is the aggrieved party. He alone preferred this Second Appeal to set aside the findings arrived at by the Courts below. In the said circumstances, it is not necessary for this Court to decide whether the 2nd item of the suit schedule property is the common wall or not.
11. It is admitted on either side that the suit 2nd and 3rd schedule properties are the north-south wall. In the sketch annexed with the plaint, the 3rd schedule property was indicated by the plaintiff as “F” and “D”. It is the specific case of the plaintiff that after the purchase of 'Á' schedule property, through Ex.A2, Sale Deed, he constructed the compound wall, in the 3rd item of suit schedule property, by using his own money. On the other http://www.judis.nic.in 8 hand, it is the specific case of the defendant that for constructing the compound wall in the 3rd schedule property, he has also contributed Rs. 1,500/-.
12. In the said circumstances, initially we have to decide whether in earlier there was a common wall situated in between the property of the plaintiff and the defendant. It is admitted on either side that the plaintiff purchased the property vide sale deed, dated 28.08.1998. The said sale deed was marked as Ex.A2, on the side of the plaintiff. Further, the sale deed, dated 19.01.1903, stands in the name of the vendors of the plaintiff and was marked as Ex.A1. In both the sale deeds, the four boundaries of the property purchased by the plaintiff and his predecessor was mentioned as property situated on the eastern side of north-south common wall. It is further admitted on either side that on the western side of ' C' schedule property, the defendant is having his property. So, prima facie, it was proved on the side of the plaintiff that there was a common north-south wall is situated in between the plaintiff and the defendant's properties and the same is mentioned as common wall in Exs.A1 and A2.
13. Before the trial Court, on the side of the defendant, an agreement made on 27.12.1982 between the said Sornavel Andi @ Kandasamy Pannaiyar, who is the vendor of the plaintiff and one Leela Ammal was marked as Ex.B1. In the said document it is admitted that the disputed http://www.judis.nic.in 9 north-south wall situated in the 'C' schedule property is common to both. Only thereafter, the plaintiff purchased his property from the said Kandasamy Pannaiyar and thereby, the vendor of the plaintiff through Ex.B1, admitted that the common wall situated in 'C' schedule property is common to him and to the vendor of the defendant.
14. As already stated, it is the specific case of the plaintiff that the present wall situated in 'A' schedule property was constructed individually by him. In support of the said contention, the plaintiff has not produced any relevant documents to show that the said disputed wall was constructed by using his own funds. It is the further case of the plaintiff that the newly constructed wall is situated in the area belongs to the plaintiff. But in order to prove the same, he has not taken any steps to measure the suit schedule property with the help of surveyor. Even though as per the report and plan submitted by the Advocate Commissioner the common wall situated in the 'C' schedule property is a newly constructed, without any measurement, the same was constructed only in the property belongs to the plaintiff.
15. It is well settled proposition in view of the judgment of this Court in Chandrasekaran and Others Vs. V.Doss Naidu reported in (2005 (3) MLJ 473) and in T.K.Krishnamurthy Vs. Tamil Nadu Water and Drainage Board, Rep.by its Senior Engineer RWS Division, The Nilgiris and Others reported in (2006 (5) CTC 178), this Court http://www.judis.nic.in 10 concluded that the appointment of Advocate Commissioner is not for gathering evidence to prove the case of the parties. Moreover, the report and plan filed by the Advocate Commissioner should be substantiated with relevant materials. In this case, the said principle has not been followed by the Courts below and came to the conclusion that the plaintiff alone constructed the north-south compound wall in the suit schedule property.
16. In otherwise, the defendant has also not proved his case that he has also contributed Rs.1500/-, for constructing the said compound wall. However, being the plaintiff, the onus is rest on him to prove his case. In this case, in order to prove that the disputed wall situated in the 3rd schedule property is constructed in the property belongs to him and also for proving that the construction was made by using his own funds, no evidence is let in on the side of the plaintiff. So, without any specific evidence, we cannot come to a conclusion that the common wall situated in the 3 rd schedule property was constructed by the plaintiff alone.
17. Moreover, the Courts below believing the report submitted by the Advocate Commissioner held that the north-south wall situated in the 3rd schedule property is newly constructed one and it further came to a conclusion that the said wall was constructed by the plaintiff alone. I am of the considered view that without any documentary evidence, the said conclusion arrived at by the Courts below is nothing but perverse conclusion.
http://www.judis.nic.in 11
18. More than that, the evidence given by P.Ws.1 and 2 is against the recitals found in Exs.A1, A2, A5 and B1. It is necessary for the Courts below to exclude an oral evidence let in by the parties against the recitals found in the documents. In this regard, the Courts below did not follow Section 92 of the India Evidence Act. Accordingly, Substantial Question of Law Nos.1 to 3 are answered in favour of the appellants.
19. In fine, the Second Appeal is allowed and the concurrent findings made in O.S. No.62 of 2002, on the file of the Additional District Munsif Court, Thoothukudi and in A.S.No.161 of 2005, on the file of the Sub Court, Thoothukudi, are set aside.
10.06.2019
Index : Yes / No
Internet : Yes / No
MPK
To
1.The Sub Judge,
Thoothukudi.
2..The Additional District Munsif,
Thoothukudi.
3.The Record Clerk
Vernacular Section
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
12
R.PONGIAPPAN, J.
MPK
Judgment made in
S.A.(MD)No.681 of 2009
10.06.2019
http://www.judis.nic.in