Madras High Court
K.Sethuraman vs Muthulakshmi(Died) on 22 April, 2021
1 S.A.(MD)Nos.298 & 299 OF 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.298 & 299 of 2008
K.Sethuraman ... Appellant/Appellant/
Plaintiff
in both S.As.
Vs.
1. Muthulakshmi(died),
(Memo in USR No.1066 dated 24.02.2016 is recorded as R-1 died and
R-2 to R-8 who are already on record, are recorded as LRs of the
deceased R-1 vide Order dated 02.03.2018 made in S.A.(MD)Nos.298 &
299 of 2008)
Navaneetha Krishnan(Died)
2. Narayan
3. Sundararajan
4. Umapathi
5. Rajkumar
6. Bakyalakshmi
7. Parthiban
8. Ramkumar
(R-2 to R-8 herein are added as parties vide Order made in I.A.No.
406 of 2005 dated 06.10.2005 as LRs of 2nd defendant)
... Respondents/Respondents/
Defendants in both S.As.
Common Prayer: Second appeal filed under Section
100 of C.P.C., to set aside the Decree and Judgment made in
A.S.Nos.81 and 82 of 2003 on the file of the I Additional Sub-
Judge, Trichy dated 02.11.2007 confirming the Decree and
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2 S.A.(MD)Nos.298 & 299 OF 2008
Judgment in O.S.Nos.2375 of 1990 and 2795 of 1992 on the
file of the District Munsif, Trichy dated 13.03.2003 by allowing
this second appeal.
(in both S.As.)
For Appellant : Mr.R.Sundar
For R-2 to R-8 : Mr.K.S.Sankar Murali
For R-1 : Died
***
COMMON JUDGMENT
The appellant Thiru.K.Sethuraman filed two suits,
namely, O.S.Nos.2375 of 1990 and 2795 of 1992 on the file of
the District Munsif, Thiruchirappalli. In the first suit, the
appellant claimed permanent injunction against the
defendants from interfering with the suit wall. In the second
suit, the relief sought was primarily in respect of the drainage.
Both the suits were tried together. The appellant examined
himself as P.W.1 and Ex.A.1 to Ex.A.11 were marked. The
defendants examined as many as three witnesses on their side
and also marked Ex.B.1 to Ex.B.7. The learned trial Munsif
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3 S.A.(MD)Nos.298 & 299 OF 2008
after a consideration of the evidence on record by Judgment
and Decree dated 13.03.2003 dismissed O.S.No.2375 of 1990
and partly decreed O.S.No.2795 of 1992 by restraining the
defendants from obliterating or changing the course of the
drainage channel. Aggrieved by the same, the appellant filed
A.S.Nos.81 and 82 of 2003 before the I Additional Sub Court,
Thiruchirappalli. By Judgment and Decree dated 02.11.2007,
both the appeals were dismissed. Questioning the same, these
second appeals came to be filed.
2. The second appeals were admitted by framing the
following substantial questions of law:-
“1. Whether the Judgment and Decree
of the Court below is perverse on account of its
misconstruction of document in Ex.B.1?
2. Whether the trial Court and first
appellate Court are right in relying on Ex.B.1 to
negative the plea of the appellant when there is
no factual foundation with respect to Ex.B.1 in
the written statement of respondents? “
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4 S.A.(MD)Nos.298 & 299 OF 2008
3. Heard the learned counsel on either side.
4. The parties are close relatives. One Nallendra
Konar was blessed with two children, namely, Vadamalai
Konar and Krishna Konar. Vadamalai Konar was blessed with
one son, namely Ranga Konar. Krishna Konar was also blessed
with four children, namely, Rajagopal, Srinivasan,
Thangammal and Samundi Konar. Ranga Konar had a son by
name Krishna Konar. There can be no dispute that there was a
partition between Ranga Konar on the one hand and Rajagopal
on the other and the same is duly evidenced by Ex.B.1 dated
06.07.1949. Since it is a document that was more than 30
years old even at the time of filing of the suit, the Courts
below rightly treated it as an ancient document with attendant
presumption under Section 90 of the Indian Evidence Act,
1872. Though the learned counsel appearing for the appellant
pointed out that this presumption can apply only to execution
and not to the correctness of the contents of the document,
still in view of the facts and circumstances there is absolutely
no reason to disbelieve its contents. In Ex.B.1, it has been
categorically mentioned that the suit wall is a common wall
and not an exclusive wall.
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5 S.A.(MD)Nos.298 & 299 OF 2008
5. It is seen that Rajagopal, S/o.Krishna Konar filed
O.S.No.1294 of 1972 before the District Munsif Court,
Thiruchirappalli and the said suit was disposed of in terms of a
compromise. The father of the appellant was figuring as sixth
defendant in the said suit. As per the terms of the
compromise, the common character of the suit wall was
recognised. In Ex.A.1 as well as in the compromise entered
into between the parties in O.S.No.1294 of 1972, the suit wall
has been recognised as common property.
6. I am of the view that the Courts below correctly
construed Ex.B.1 and the said construction cannot be said to
be perverse. The substantial question of law is answered
against the appellant.
7. These second appeals are dismissed. No costs.
22.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
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.
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6 S.A.(MD)Nos.298 & 299 OF 2008
G.R.SWAMINATHAN,J.
PMU
To:
1. The I Additional Sub-Judge,
Trichy.
2. The District Munsif,
Trichy.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
S.A.(MD)Nos.298 & 299 of 2008
22.04.2021
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