Madras High Court
Megavanna Pillai (Died) vs Samynatha Pillai on 10 February, 2021
S.A.No.1660 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2021
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A.No.1660 of 2008
1. Megavanna Pillai (died)
S/o, Duraisami Pillai,
Edamachi Village,
Porpandhal Post,
Salavakkam Pirka,
Uttiramerur Taluk,
Chengalpattu District.
2. M.Kumaresan
3. K.Rani
4. J.Shanthi
5. J.Revathy
[Appellants 2 to 5 are brought on record
as Lrs of the deceased sole appellant
vide order of the Court dated 29.07.2005
made in CMPs.2993 to 2998 of 2004] ... Appellants
Vs.
1/10
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S.A.No.1660 of 2008
1. Samynatha Pillai
2. Arimuthu Pillai
3. Subramaniya Pillai
all sons of Rajaram Pillai
residing at Edamachi Village,
Porpandhal Post,
Salavakkam Pirka,
Uttiramerur Taluk,
Chengalpattu District. ... Respondents
Prayer:
Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree in A.S.No.51 of 1989 on the file of the Principal
Subordinate Judge, Chengalpattu dated 12.12.2000 confirming the judgment
and decree in O.S.No.313 of 1981 on the file of the District Munsif Court,
Chengalpattu dated 14.07.1987.
For Appellants : Mr.B.Thilak Narayanan
For Respondents : No appearance – Set exparte
*****
2/10
https://www.mhc.tn.gov.in/judis/
S.A.No.1660 of 2008
JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 12.12.2000 passed in A.S.No.51 of 1989 on the file of the Principal
Subordinate Court, Chengalpattu, confirming the judgment and decree dated
14.07.1987 passed in O.S.No.313 of 1981 on the file of the District Munsif
Court, Chengalpattu.
2. When the matter is taken up for hearing, despite the service of
notice, the respondents have not appeared either in person or through
counsel. Hence the respondents being called and remaining absent, set
exparte.
3. The unsuccessful plaintiff in the Courts below is the appellant.
4. The suit has been laid by the plaintiff against the defendants for
declaration, permanent injunction and mandatory injunction.
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S.A.No.1660 of 2008
5. Considering the pleas putforth by the respective parties in the
matter and the materials available on record, both oral and documentary, in
particular, noting the evidence adduced on the side of the plaintiff as P.Ws.1
to 3 and the documents marked on his side as Exs.A1 and A2 and the
evidence adduced on the side of the defendants as D.Ws.1 and 2 and the
documents marked on their side as Exs.B1 to B7 and also considering the
Exs.C1 and C2 exhibited in the matter, it is found that the lis between the
parties is only with reference to ABC wall and the plaintiff claims title
exclusively to the ABC wall based on Exs.A1 and A2. It is noted that the
plaintiff claims that he had purchased the property under Ex.A2 and the wall
in question ABC according to the plaintiff, is lying on the southern side of
the property purchased by him under Ex.A2. Considering the parent title
deed of the plaintiff marked as Ex.A1 Will, it is noted that the property
comprised in Ex.A1 Will is only a vacant site and furthermore, from the
evidence adduced in the matter, it is seen that the plaintiff had put up the
construction in the property only after the purchase under Ex.A2. In Ex.A1,
while describing the property comprised therein, it has been specifically
mentioned as lying to the north of tiled house and thottam of T.Rajaram
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S.A.No.1660 of 2008
Pillai. As above pointed out, it is only the property comprised in Ex.A1, the
plaintiff had purchased by way of Ex.A2. From the evidence of P.W.3, it is
noted that the property purchased by way of Ex.A2 is also a vacant site and
only thereafter, the plaintiff had put up the construction.
6. Considering the documents projected by the defendants in
particular, marked as Ex.B5, it is found that under the said sale deed, the
1/3rd share in the northern wall has been acquired and therefore from Ex.B5,
the property had been alienated inclusive of 1/3rd share in the wall in
question namely the ABC wall. The same has been reiterated in the
subsequent transactions marked as Exs.B6, B7, B3 and B4. Therefore, from
all the abovesaid sale transactions, the 1/3rd right of wall in question had
been conveyed, in such view of the matter, the defendants and their
predecessors in interest, as held by the Courts below, have also share in the
wall in question and in such view of the matter, the plaintiff claim of
exclusive right and title over the southern wall namely the ABC wall based
on Exs.A1 and A2 cannot at all be accepted and rightly rejected by the
Courts below.
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S.A.No.1660 of 2008
7. From the materials available on record, it is noted that the
defendants had put up the construction in the property much prior to the
construction put up by the plaintiff. The same could also be gathered from
the recitals contained in Ex.A2 sale deed. It is thus noted that the
defendants' construction is resting on the wall in question and in such view
of the matter, the case of the plaintiff that he had acquired exclusive title to
the ABC wall and enjoying the same absolutely and the defendants have no
right over the same as such cannot be accepted in any manner and the same
had been properly considered by the Courts below and rightly rejected the
plaintiff's case.
8. From the Commissioner's report and plan marked in the matter and
his evidence as D.W.3, it is seen that excluding the ABC wall, the plaintiff
is enjoying the north-south 29 feet and the same would also reveal that the
plaintiff has no exclusive right or title over the ABC wall and furthermore
from Exs.C1 and C2, the construction put up by the defendants resting the
same on the northern wall ie., the wall in question, has not caused any
damage or for the matter, the northern wall had not developed any cracks
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S.A.No.1660 of 2008
and by way of the same, the plaintiff has also not established that he has
sustained any damages. Therefore, the case of the plaintiff that the
defendants should be injuncted from putting up any construction over the
wall in question on the footing that he has exclusive right over the same
cannot be accepted based on the materials available on record and on the
other hand, it is seen that the defendants also have share in the wall in
question and in such view of the matter, the Courts below are found to be
justified in non suiting the plaintiff.
9. Considering the reasonings and conclusions of the Courts below, it
is found that the Courts below have properly appreciated the materials
available on record, the pleas and the submissions putforth by the respective
parties and had correctly, both on factual matrix and on the points of law,
held that the plaintiff is not entitled to seek the reliefs prayed for. I do not
find any valid reason warranting interference in the same. The
determination of the issues involved in the matter by the Courts below are
purely found to be based on factual matrix and for the reasons aforestated,
no substantial question of law is found to be involved in this second appeal.
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S.A.No.1660 of 2008
10. In conclusion,the judgment and decree dated 12.12.2000 passed in
A.S.No.51 of 1989 on the file of the Principal Subordinate Court,
Chengalpattu, confirming the judgment and decree dated 14.07.1987 passed
in O.S.No.313 of 1981 on the file of the District Munsif Court,
Chengalpattu are confirmed and resultantly, the second appeal is dismissed.
No costs. Consequently, connected miscellaneous petition, if any, is closed.
10.02.2021
mfa
Index:yes
Internet:yes
https://www.mhc.tn.gov.in/judis/
S.A.No.1660 of 2008
To
1. The Principal Subordinate Judge,
Principal Subordinate Court,
Chengalpattu.
2.The District Munsif,
District Munsif Court,
Chengalpattu.
Copy to
The Section Officer,
VR Section,
High Court.
https://www.mhc.tn.gov.in/judis/
S.A.No.1660 of 2008
T.RAVINDRAN, J.
mfa
S.A.No.1660 of 2008
10.02.2021
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