Madras High Court
Subbaian vs Kandasamy on 4 June, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 4/6/2014
CORAM
THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA
Second Appeal (MD No.93 of 2009
Subbaiah Pandaram (died)
Subbaian ... Appellant
(cause title accepted videorder of
Court dated 2/12/2008 made in
M.P.(MD) No. 1 of 2008 in
S.A.(MD) SR.No.38695 of 2006 by ASJ.
Vs
Kandasamy ... Respondent
Appeal filed under Section 100 of the Civil Procedure Code against the
judgment and decree in A.S.No.42 of 2005 on the file of the Subordinate Judge,
Aruppukottai dated 20/3/2006 confirming the judgment and decree passed in
O.S.No.136 of 1999 dated 31/1/2005 on the file of the District Munsif,
Aruppukottai.
!For appellant ... Mr.S.Natarajan
^For respondent ... Mr.S.Parthasarathy
- - - - -
:JUDGMENT
This Second Appeal is filed against the judgment and decree in A.S.No.42 of 2005 on the file of the Subordinate Judge, Aruppukottai dated 20/3/2006 confirming the judgment and decree passed in O.S.No.136 of 1999 dated 31/1/2005 on the file of the District Munsif, Aruppukottai.
2. The unsuccessful plaintiff is the appellant.
3. The suit is filed for declaration of title, permanent injunction and for mandatory injunction.
4. The case of the plaintiff is that the suit property is an extent measuring 5 feet east west and 30 feet north south lying east of the plaintiffs property. The plaintiff claims to have purchased the suit property along with the property lying west of the suit property by way of sale dated 16/10/1968 under Ex.A.2 from one Ganapathy Reddiar. According to the plaintiffs, they had purchased a vacant site of 30 feet on the east west and on the west side, they had left about 1 + feet and constructed for 22 + feet and the balance 6 feet on the eastern side of the property was kept vacant. On the east of the suit property, there was a common house. The western wall of the common house was the common wall for plaintiffs house and the common house. While constructing his house,the plaintiff left the common wall and raised an independent wall leaving the disputed property vacant. While so, the defendant had purchased the common house and demolished the same and reconstructed it. In the process of construction, the defendant had added the 1 foot left by the plaintiff. Therefore, what remains now is only 5 feet. On the eastern wall of the plaintiff, there are windows and eves. The defendant has got no manner of right in the suit property however, during January 1999, the defendant had fixed two windows and eves and in spite of several request, the defendant had refused to remove the windows and the eves. Therefore, the plaintiff has filed the suit for declaration that the suit property belongs only to the plaintiff, permanent injunction not to disturb his peaceful possession mandatory injunction to remove the windows and eves facing the suit property.
5. The defendant contested the suit by filing the written statement. The defendant also disputed the rough sketch filed along with the plaint. According to the defendants, the sale under Ex.A.2 did not include the suit property. The defendants had constructed the house even in the year 1985. The allegation that the defendants had fixed the windows and eves during 1999 is absolutely false. The property purchased but he defendant originally belong to Panthalkudi utkadai vellaiyapuram grama pothu sangam. The defendant purchased the suit property as a vacant site from one Balakrishna Chettiar. In the said sale deed dated 24/4/79, the suit property has been described as common lane. In all the sale deeds, the suit property has been described only as a common lane. When the defendants constructed his house, he fixed the windows and eves on the western wall to the knowledge of the plaintiff. The suit property is a common lane can be proved by the fact that the same extends and lies between the houses lying north of plaintiffs and defendants property. In that respect, it can be seen that the suit property is a common lane and the plaintiff cannot claim exclusive right over the same. The suit property and the extention of the same on the northern side is a common lane as the same connects the Kokkuchithampatti salai on the south and Ekaligal Samudhaya idam on the north. The plaintiffs are also entitled to use the suit property as a common lane and not claim exclusive right. Therefore, the suit has to be dismissed.
6. On the side of the plaintiff, Exs.A.1 and A.2 had been marked and P.Ws.1 and 2 had been examined. On the side of the defendant, Exs.D.1 to D.24 had been marked and D.Ws.1 to 3 had been examined. Exs.X.1 and X.2 had been marked as Court witnesses.
7. The trial Court after considering the pleadings evidence and documents had dismissed the suit. Aggrieved by the same, the plaintiff preferred A.S.No.43 of 2005 which was also dismissed. Feeling aggrieved, this Second Appeal has been filed.
8. At the time of admission only notice was issued.
9. Heard Mr.S.Natarajan for the appellant and Mr.S.Parthasarathy for the respondent.
10. At the time of trial, commissioner was appointed to note down the physical feature of the suit property who has also filed Exs.X.1 and X.2 the report of the plan had been marked. From the plan furnished by the Commissioner, the identity of the property can easily be located. The contention of the plaintiff is that the suit property has been purchased by them under Ex.A.2 and the suit property belongs to them. Whereas the defendant had stated that the property on the east on the suit property is purchased by them under Ex.B.2 and the previous documents of title were marked as Ex.B3 and B.4. In all the above said documents namely Exs.B.2 to B.4 the suit property has been described only as common lane and the said common lane runs from Kokkusathampatti on the south to the north. The defendants also further relied on Ex.B.1 which is the sale deed standing in the name of the first appellants daughter Valliyammal. The property under Ex.B.1 is on the west of the plaintiffs property. In between the Valliyammal's property and plaintiffs property, there is a lane which is also common to both the parties. From the documents available it can be seen that the suit property can only be a common property and not an exclusive property of the plaintiff. The plaintiff who has come with the specific relief of declaratory right has the burden on him to establish his claim. The plaintiff had produced only Ex.A.2. A perusal of the same it can be seen that the property described under the sale deed is described as fpuhk bghJ tPLfSf;Fk; bghJ RtUf;Fk; fhyp kidf;Fk; Bkw;fhf. The defendant had purchased the property east of the disputed property under Ex.B.2. The vendor of the defendant has been examined as D.W.3 through whom exs.B.3 and B.4 are marked. The said documents are the parent documents to Ex.B.2. In all these documents as stated earlier, the suit property has been described only as a common lane. Therefore, I have no hesitation to hold that the common lane described in Ex.B.2 could only refer to the suit property.
11. The other way of approaching the dispute would be only by way of measurements of the title deeds relied on by both the parties. As per Ex.A.2 east west is described as 30 feet. However, the plaintiff has not established whether his vendor had 30 feet to convey. It is relevant to advert to the evidence of P.W.1 who says vd; tPl;Lf;F Bkw;Bf bjd;tly; 6 mo re;J cs;sJ. me;j re;J vA;fs; brhe;j re;J. From the above deposition, the plaintiff seems to claim 6 feet on the west of the suit property. He has further admitted that me;j re;Jk; ehA;fs; tPL fl;o cs;s gFjpa[k; ehA;fs; fpuak; thA;fpajd; Kyk; ghj;jpak;. Therefore, it is evident that the 6 feet on the west side of the property when added to 22 1/2 feet constructed portion comes to 28 + feet. The balance 1 + feet is on the eastern side of the property. In the above circumstances, unless the plaintiff establishes that the suit property is included in Ex.A.2 he cannot succeed in the suit. Whereas the defendant has by filing documents and cogent evidence has established that the suit property is only a common lane and the plaintiff cannot claim exclusive right over the same. The Courts below being the final fact finding courts have also come to the same conclusion that the plaintiff has not established his right over the suit property. While exercising powers under Section 100 this Court sees no question of law much less the substantial questions of law to re-apprise the evidence as there is no error of law arising out of the facts of the case.
12. In the result, this Second Appeal is dismissed, confirming the judgment and decree passed in A.S.No.42 of 2005 on the file of the Subordinate Judge, Aruppukottai dated 20/3/2006 confirming the judgment and decree passed in O.S.No.136 of 1999 dated 31/1/2005 on the file of the District Munsif, Aruppukottai. No costs.
mvs.
To
1. The Subordinate Judge, Aruppukottai
2. The District Munsif, Aruppukottai.