Madras High Court
T.A.Adaikkappan vs T.A.Chidambaram on 19 October, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 19/10/2012 Coram THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI S.A (MD) No.754 of 2006 T.A.Adaikkappan .. Appellant vs T.A.Chidambaram .. Respondent Second Appeal is filed under Section 100 C.P.C. against the judgment and decree dated 28.10.2005 made in A.S.No.256 of 2001 on the file of Additional District & Sessions Court (Fast Track Court-I), Tiruchirapalli confirming the judgment and decree dated 31.7.2001 made in O.S.No.234 of 1997 on the file of District Munsif Court, Manapparai. !For Appellant ... Mr.K.Parabhakar ^For Respondent ... Mr.M.Kannan :JUDGMENT
The unsuccessful defendant is the appellant herein. The suit arising out of which is the present second appeal was originally filed for the relief of permanent injunction restraining the defendant from interfering with the plaintiff's access through suit 'B' schedule property to reach second item of suit 'A' schedule properties from eastern and western stair cases and from tampering with free flow of air and light of second item of suit 'A' schedule properties by putting up any barricade wall in north-south direction on suit 'B' schedule property or in any manner whatsoever. Thereafter, the suit was amended for the relief of declaration to exercise the right of access through suit 'B' schedule property to reach second item of suit 'A' schedule properties from eastern and western stair cases and for consequential relief of permanent injunction and for mandatory injunction directing the defendant to dismantle and remove suit 'C 'schedule property.
2.The facts, which led to the filing of the suit are as follows:
The plaintiff T.A.Chidambaram, one T.A.Ramaiya, T.A.Palaniyappan and the defendant T.A.Adaikappan are the four sons of one Ayyam Perumal Chetitar, who owned one house property at Ayyamperumal street, Manaparai Taluk. After the death of the father, four brothers referred to above partitioned the same among themselves. The facts made available herein would reveal that the property is abutting Alagiriswami Naidu Street and front portion is common varanda. The portion on the west of the same is allotted to Ramaiya. The portion allotted to the defendant Adaikappan is on the west of Ramaiya's portion. The remaining portion on the west of the defendant's portion is commonly allotted to Chidambaram and Palaniyappan. While the plaintiff Chidambaram is allotted northern portion, Palaniyappan is allotted southern portion of the same. There are two stair cases on south east and north western corner of the entire building to reach the entire open terrace. There is one building on the eastern side of open terrace above common varanda and Ramaiya's portion and the same is jointly allotted799 to Chidambaram and Palaniyappan. The stair case on the south eastern corner is admittedly for common use of the plaintiff- Chidambaram, defendant-Adaikappan and Palaniyappan and the common veranda on the eastern side abutting the main road is used for reaching eastern side constructed portion and open terrace on the top portion is allotted to the defendant Adaikappan and the plaintiff Chidambaram and Palaniyappan to reach through the stair case on south eastern side.
3.The dispute arose between two brothers, when the defendant Adaikappan started putting up construction in the open terrace above his portion. According to the plaintiff, the open terrace above the portion allotted to the defendant, Chidambaram and Palaniyappan jointly, is being commonly used by all from the life time of their father to reach eastern side constructed portion through stair case on north west corner and the owners of the property before and after partition have been using both stair cases and open terrace commonly to reach eastern side constructed portion and top portion allotted to the plaintiff Chidambaram and Palaniyappan and the defendant has no right to cause any obstruction either by putting up any construction or in any other manner whatsoever, so as to prevent others from exercising their right of access through open terrace to reach the building in question. According to the defendant, the owners of the ground floor portion are entitled to exclusive use of terrace portion on the top of their ground floor portion and the construction put up by the defendant is only within the top floor portion above his ground floor portion and the same is on the strength of the agreement entered into between the parties in the presence of others during 1980 and the plaintiff Chidambaram and Palaniyappan are entitled to use stair case on south eastern corner to reach top floor constructed portion and use stair case on the north western corner to reach the open terrace on top of their ground floor portion.
4.The contesting brothers, in support of their respective claims examined themselves as PW1 and DW1 and produced Exs.A1 to A4 and Exs.B1 to B4 documents on both sides.
5.The trial court, mainly by relying upon the documents adduced on the side of the plaintiff, particularly Exs.A3 and A4, arrived at a conclusion that the open terrace was agreed to be for common use and the recitals contained in the documents are binding upon the parties and the offending construction obstructed not only free access to eastern side constructed portion on the terrace, but also free flow of air and light and accordingly granted all the reliefs of declaration and permanent and mandatory injunction as sought for in the suit. Aggrieved against the same, the contesting defendant preferred AS.No.256/2001. The Lower appellate court also by relying upon the same documents and also Exs.C1 and C2-Advocate Commissioner's report and plan, confirmed the finding of the trial court and dismissed the appeal. Hence, this second appeal before this Court by the defendant.
6.The second appeal is admitted on the following substantial questions of law:
(a) Whether the courts below are right in relying upon Ex.A3 dated 15.12.1959 and Ex.A4 dated 12.5.1980 for the collateral purpose to show that there was a division when in fact the real purpose for introducing Ex.A3 and Ex.A4 is limit or restrict the right of the defendant over the terraced portion of his property?
(b)whether the courts below are right in relying upon Ex.A3 dated 15.12.1959 and Ex.A4 dated 12.5.1980 in the absence of any plea in the plaint or in the amended plaint?
7.Heard the rival submissions made on both sides.
8.The facts that the entire property allotted to all the four brothers was a single block belonging to the same family and after the death of the father, the same was partitioned between the brothers and at the time of partition, the ground floor constructed portion was allotted to Ramaiya, the defendant Adaikappan and the plaintiff Chidambaram and Palaniyappan jointly from eastern side leaving the common varanda on the eastern side common to all and the eastern side constructed portion on terrace portion was allotted to the plaintiff Chidambaram and Palaniyappan and the remaining terrace portion above the constructed portion allotted to the defendant Adaikappan, the plaintiff Chidambaram and Palaniyappan was open and there were two stair cases i.e, one on south eastern corner and another on north western corner. The stair case on south was common to the defendant, the plaintiff and Palaniyappan to reach the constructed portion on eastern side and open terrace and the north eastern stair case was also being used commonly by Chidambaram and Palaniyappan to reach their terrace portion and the defendant started putting up construction above terrace portion in open terrace and such giving rise to cause of action for filing the present suit arising out of which is the present appeal are not denied.
9.The only controversy in issue is as to whether open terrace portion above the portion allotted to the defendant Adaikappan and the plaintiff Chidambaram and Palaniyappan is left open for common use of all and the respective owner of the ground floor portion is entitled to use the same in their own manner.
10.Both the courts below have believed the plaintiff's case that it is left open to common use of all and none of the brothers have any right to put up construction mainly on the basis of Exs.A3 and A4 documents. Whereas, the defendant sought to rely upon Ex.B3 in support of his claim that he is entitled to put up construction in the open terrace area above his portion.
11.The learned counsel for the appellant would contend that the Courts below have placed serious reliance on the claim and the supporting document which is not pleaded. Both the courts below have, as rightly argued by the learned counsel for the appellant, placed serious reliance upon Exs.A3 and A4 particularly Ex.A4, genuineness of the which is seriously disputed by the defendant. This court, even at the outset agrees with their contention that the finding rendered by the courts below is contrary to the principles of law that no amount of evidence can be accepted without pleading. The entire plaint proceeds as if the right of access through both stair cases and open terrace above the portion allotted to all the brothers has been exercised by the parties from the date of partition till date on which the offending construction was put up by the defendant. The plaintiff has no where in the plaint mentioned that the partition effected among brothers was either oral or in writing. The plaintiff as PW1 has for the first time referred to the partition deed dated 15.12.1950. It is further deposed by PW1 that there are more then one documents relating to partition effected between the parties. However, PW1 has not explained in detail about the circumstances under which more than one document came to be executed among the parties.
12.Even otherwise, the three documents made available herein are Ex.A3, Ex.A4 and Ex.B3. The plaintiff has nowhere mentioned about Exs.A3 and A4 documents and the same have not been produced by PW1 in the course of his chief examination on the first occasion. Ex.A3 styled as description of the residential house was signed by all the fourth brothers and the same contains left hand thump impression of their mother Alamelu Ammal. The same was, according to the defendant, purported to be the document under which partition was effected on 15.12.1959, but the recital contains do not support such theory. Notwithstanding the same, Ex.B3, which was produced herein through DW1 in the course of his cross examination, is not seriously denied on the side of the plaintiff. As far as Ex.B3 is concerned, the defendant has specifically referred to the same in para 20 of his written statement. It is specifically stated by him that an agreement was entered into between the brothers and mother on 12.5.1980 and the plaintiff was also party to the same. The plaintiff has also in the course of his cross examination confronted with this document. The reply of the plaintiff in the witness box regarding this document is not specific, but is evasive. Though he admitted the signature of all the four brothers and mother in Ex.A3, he does not remember the existence of one such document. However, PW1 has recalled himself and produced Ex.A4 and at that time, he admitted that Ex.A4 was the last document dated 12.5.1980 superceding the earlier document executed between the parties. The recitals contained in Ex.A4 refers Ex.B4 dated 12.5.1980. As such, the existence, execution and genuineness of Ex.B4 is held to be admitted on the side of the plaintiff.
13.As far as Ex.A4 is concerned, the same is not referred to either in the plaint or in the chief examination of PW1 for the first occasion. The plaintiff has not thought fit to refer to the same to DW1 in the course of cross examination, while he was confronted with Ex.A3. The same is for the first time produced on PW1 being recalled after the examination of DW1. PW1, for the first time, deposed that the same came to be existence superceding earlier documents and Ex.A4 is the last document entered into between the parties. The courts below have by ignoring the omission to mention anything about Exs.A3 and A4 agreements and the circumstances under which the same came to be existence either in the plaint and in the evidence of PW1 and the failure on the part of the plaintiff to suggest anything about Ex.A4 to DW1 in the course of cross examination and the time at which the same was produced after the evidence was closed and after hearing the arguments on the side of the defendant, placed greater reliance upon these documents to arrive at conclusion that the open terrace is left open for common use of all the brothers. While doing so, both the courts below have disbelieved Ex.B4 on the ground that the same is not duly proved by the defendant and the same does not contain any recital to the effect that the same is superceding earlier agreement. Both the courts below have totally ignored the admission of existence, execution and genuineness of Ex.B4 dated 12.5.1980 by PW1. In that event, the basic legal principle is that the document which is admitted, need not be proved, as such, no burden is cast upon the defendant to prove Ex.B4.
14.Out of two set of documents, Exs.A3 and A4 produced on the side of the plaintiff have, as discussed above, not been mentioned either in the plaint or in the evidence of PW1 in the chief examination on the first occasion. Though the execution of Exs.A3 and A4, which are documentary evidence in support of so called agreement entered into between the parties, need not be referred to in the pleadings, no mention at all is made about so called agreement in the plaint. Except mentioning the partition between the parties, no subsequent arrangement between the parties is pleaded either in the plaint or in the witness box on the first occasion. As rightly argued by the learned counsel for the appellant, Exs.A3 and A4 documents are liable to be rejected on the principle of law that no amount of evidence can be looked into in the absence of pleading.
15.Even otherwise, Ex.A3 is not the agreement evidencing the first partition among the brothers effected on 15.12.1959, it only refers to earlier partition effected on 15.12.1959 and this document is only in respect of the portion allotted to the plaintiff Chidambaram and the same is in support of the plaintiff's claim that the terrace is left open for common enjoyment of all with restriction to put up any construction. According to the defendant, Ex.B4 came to be existence because of confusion arose between the parties in implementing the terms of partition effected between the brothers. As the execution of the same is admitted, the question of calling upon the defendant to prove the same through other brothers does not arise. The finding of the courts below that on such failure of the defendant, the document need not be looked upon, is hence factually and legally unsustainable and is perverse. Both the courts below failed to consider that the plaintiff has to success or fail on the strength of his own case and cannot be taken advantage of weakness of the defendant case. The plaintiff, having came to the court with the claim that the terrace portion is left open to common use of all the brothers and having admitted the execution and genuineness of Ex.B4, is bound to prove the genuineness of Ex.A4 which is seriously disputed and the circumstances under which the same came to be existence. However, the case of the plaintiff is totally lacking in pleading and evidence in this regard. In the absence of any specific pleading and evidence, both the courts below have by placing more reliance upon Ex.A4 disputed document contrary to well laid down principles, favoured the plaintiff by granting the suit reliefs in favour of the plaintiff, which is factually and legally unsustainable and the judgment and decree of the trial court as confirmed by the lower appellate court on the basis of such document also, cannot be allowed to sustain.
16.Further, PW1 in the course of his cross examination admitted that he has put up one bath room in terrace portion, which is claimed to be open and common to all. When the plaintiff is entitled to put up bath room, contrary to so called agreement between the parties, he cannot be permitted to question the right of the defendant to do so in the open terrace portion above his building portion. The material factor, which is omitted to be considered herein, is that the suit reliefs are claimed only on the basis of the earlier practice in using the open terrace to reach the constructed portion and the same are not based on any agreement between the parties on the date of partition effected among the brothers. Further when other brother Palaniyappan is also entitled to claim such right of access to the disputed terrace portion, other brother is not brought into witness box to substantiate his claim. Ignoring the same, both the courts below have on the basis of Exs.A3 and A4 documents particularly Ex.A4, accepted the plaintiff's claim and negatived the defence raised on the side of the defendant. On this ground also, the judgment and decree of the courts below are liable to be interfered with. Thus, in view of the findings rendered above on the substantial questions of law, the judgment and decree granted by the trial court as confirmed by the lower appellate court is liable to be set aside.
17.In the result, the second appeal is allowed by setting aside the judgment and decree of the courts below.
rk To
1.The Additional District & Sessions Court (Fast Track Court-I), Tiruchirapalli.
2.The District Munsif Court, Manapparai.