Madras High Court
Emarajan vs S.Abdul Kareem Khan Gori (Died) on 12 April, 2017
S.A.No.674 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 01.02.2022
DELIVERED ON : 04.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.674 of 1997
Emarajan ... Appellant/
Appellant/
Defendant 1
Vs.
1.S.Abdul Kareem Khan Gori (Died) ... Respondent/
Respondent/
Plaintiff
2.Jaithun Beevi
3.Shabash Khan Gori
4.Hamari Saudi
5.Jinath Begam
6.Mohammed Alisha
7.Syed Ali Fathima
8.Pobasha Beevi
9.Mohammed Subhahan ... Proposed Respondents
(RR2 to 9 are brought on record as legal heirs of deceased sole
respondent, vide Court order, dated 12.04.2017 made in
M.P(MD)Nos.1 to 3 of 2011 in S.A.No.674 of 1997)
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree, dated 29.08.1996 in A.S.No.255 of
1994 on the file of the Additional Sub Court, Srivilliputhur, confirming the
decree and judgment, dated 20.06.1994 in O.S.No.32 of 1988 on the file of
the Additional District Munsif, Sathur.
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S.A.No.674 of 1997
For Appellant : Mr.R.Subramanian
For Respondents : Mr.N.Damodaran
for R3, R5 to R9
No appearance for R4
R1-Died (Steps taken)
R2 & R5-Died (Steps due)
JUDGMENT
The first defendant is the appellant herein.
2. The plaintiff filed O.S.No.32 of 1988 before the Additional District Munsif Court, Sathur, for declaration that the scheduled mentioned property is a common wall belonging to the plaintiff and the 1st defendant and for a consequential permanent injunction. The suit was decreed by the trial Court. The 1st defendant filed A.S.No.255 of 1994 before the Additional Sub Court, Srivilliputhur. The learned Subordinate Judge was pleased to confirmed the judgment and decree of the trial Court. As against the concurrent findings, the present Second Appeal has been filed by the 1st defendant.
3. The plaintiff has contended that the scheduled mentioned property is a common wall which is situated in between the properties of the plaintiff and the defendants. The suit wall is on the Western side of the plaintiff's 2/10 https://www.mhc.tn.gov.in/judis S.A.No.674 of 1997 property. According to the plaintiff, the Western wall is the common wall between the plaintiff and the defendants and it is evidenced by Exhibits A2, A3 and a common wall agreement under Exhibit A6.
4. The defendants filed a written statement disputing the fact that the suit wall is not a common wall. They further contended that it is the exclusive wall of the defendants.
5. The trial Court after consideration of Exhibits A2 and A3 documents, arrived at the conclusion that the Western wall of the plaintiff is the common wall between the plaintiff and the defendants. The trial Court also considered Exhibit A3 registered mortgage deed where the Western wall is shown as a common wall. The trial Court carefully analyzed Exhibit A6 agreement between the plaintiff's brother and the defendants' vendor in which the parties have agreed that the suit wall will be retained as a common wall. The trial Court also relied upon the Commissioner's report to arrive at a finding that the wall of the plaintiff has been inserted into the suit wall in 3 places which would indicate that the suit wall is a common wall. Based upon the said findings, the trial Court decreed the suit as prayed for. 3/10 https://www.mhc.tn.gov.in/judis S.A.No.674 of 1997
6. The First Appellate Court concurred the findings of the trial Court and dismissed the appeal filed by the defendant. As against the same, the present Second Appeal has been filed.
7. The Second Appeal has been admitted on the following substantial questions of law:
“1) Whether in law have not the Courts below erred in relying on Exhibit A6 overlooking that it is inadmissible in evidence under Section 49 of the Registration Act?
2) Whether in law have not the Courts below omitted to see that the boundary recitals in Exhibits A2 and A3 cannot be relied on as the appellant is not a party to them?”
8. The learned Counsel for the appellant has contended that Exhibit A6 agreement is inadmissible in evidence in view of Section 49 of the Registration Act. The learned Counsel for the appellant further contended that the Courts below have erred in relying upon the boundary recitals in Exhibits A2 and A3 to arrive at the conclusion that the suit wall is a common wall, in view of the fact that the said documents are not inter- 4/10 https://www.mhc.tn.gov.in/judis S.A.No.674 of 1997 parties. He further contended that the Commissioner's report has been not properly appreciated by the Courts below. The learned Counsel for the appellant further contended that Exhibits A2 and A3 have not been properly proved by the plaintiff and Exhibit A6 is inadmissible in evidence. If these 3 documents are eschewed, then the suit filed by the plaintiff has to be dismissed.
9. Per contra, the learned Counsel for the respondents contended that Exhibits A2 and A3 are of the year 1930 and 1934 in which there is a specific reference about the suit wall as a common wall between the plaintiff and the defendants' ancestors in title. He further contended that in view of certain dispute, the plaintiff's brother and the defendants' vendor entered into a common wall agreement under Exhibit A6 on 08.09.1956. As per the recitals in the said document, the suit wall should be retained as a common wall between the parties to the document. It was further agreed that the parties will not open up any door way or window in the said common wall. He further contended that as per the said agreement, if the plaintiff has to make any insertions in the common wall, an amount of Rs.80/- (Rupees Eighty only) has to be paid to the defendants. In view of the above said 5/10 https://www.mhc.tn.gov.in/judis S.A.No.674 of 1997 recitals in Exhibit A6, the plaintiff has established his right over the suit wall. He further contended that the trial Court as well as the appellate Court have arrived at a concurrent finding that the suit wall is a common wall after perusing the documents on either side and the Commissioner's report and hence, this Court may not interfere under Section 100 of the Civil Procedure Code.
10. I have carefully considered the submissions on either side.
11. The specific case of the plaintiff is that the suit wall which is located on the Western side of the plaintiff's property is a common wall between the plaintiff and the defendants. Exhibits A2 and A3 are the documents under which the plaintiff's ancestor in title have mortgaged the suit schedule property showing the Western wall as a common wall. The plaintiff's brother and the defendants' ancestor in title have entered into a common wall agreement under Exhibit A6 on 08.09.1956. It has been agreed that the suit wall should be retained as a common wall between the parties and both the parties should not put up any window in the common wall. In para 6 of the written statement though the defendants have 6/10 https://www.mhc.tn.gov.in/judis S.A.No.674 of 1997 contended that the said agreement is a false one, subsequently the defendants has relied upon Exhibit A6 and contended that the suit agreement will clearly establish that the suit wall is an exclusive wall of the defendants. He had further contended that if the suit wall was really a common wall there is absolutely no necessity for the plaintiff's brother to enter into such agreement. This averment in para 6 of the written statement will clearly show that the defendants have candidly admitted Exhibit A6 document.
12. The Advocate Commissioner's report and plan marked as Exhibits C1 and C2 will disclose that the plaintiff's wall has been inserted into the suit wall in 3 places. There is no reference about the suit wall in Exhibit B2 and the recitals in Exhibit B3 are not helpful to the defendants to establish their case that suit wall is the exclusive wall of the defendants. The Courts below have carefully considered the documents filed on the side of the plaintiff and the defendants and after analyzing the Commissioner's report and plan have arrived at a concurrent finding that the suit wall is a common wall between the plaintiff and the defendants.
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13. In view of the above said discussion, the substantial questions of law are answered as follows:
1. Exhibit A6 document is a common wall agreement and the value referred therein does not exceed Rs.100/- (Rupees Hundred only). Hence, the same is admissible in evidence.
2. Exhibits A2 and A3 documents are mortgage deeds created by the plaintiff's ancestor in title which would disclose that the suit wall is a common wall between the plaintiff and the defendants. This is not a boundary recital. Hence, the Courts below have not erred in relying upon Exhibits A2 and A3. That apart, the defendants' vendor himself has entered into an agreement under Exhibit A6 with the plaintiff's brother declaring the suit wall as a common wall.
14. In view of the above said discussions, both the substantial questions of law are answered as against the appellant. The Second Appeal stands dismissed. No costs.
04.02.2022
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S.A.No.674 of 1997
Index : Yes / No
Internet : Yes / No
btr
Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To
1.The Additional Sub Court, Srivilliputhur.
2.The Additional District Munsif Court, Sathur.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
9/10 https://www.mhc.tn.gov.in/judis S.A.No.674 of 1997 R.VIJAYAKUMAR,J.
btr Judgment made in S.A.No.674 of 1997 04.02.2022 10/10 https://www.mhc.tn.gov.in/judis