Madras High Court
Dr.Sumathi vs R.Rathinasamy on 21 January, 2021
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993 and
CMP.No.5885 of 1993
SA.No.477 of 1993
Dr.Sumathi ..Appellant
Vs.
1.R.Rathinasamy
2.R.Marudhachalam ..Respondents
PRAYER:
The Second Appeal is filed under Section 100 of Code of Civil
Procedure against the judgment and decree in AS.No.219 of 1991
dated 27.11.1992 on the file of the Principal Subordinate Judge,
Coimbatore confirming the judgment and decree dated 05.08.1991 in
OS.No.2306 of 1986 on the file of the I Additional District Munsif,
Coimbatore.
For Petitioner : Mr.A.S.Vijayaraghavan
For Respondents
For R1 : Mr.R.Bharathkumar
For R2 : Mr.R.Jayaprakash
https://www.mhc.tn.gov.in/judis/
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
CRP.NPD.No.1216 of 1993
Dr.Sumathi ..Petitioner
Vs.
1.R.Rathinasamy
2.R.Marudhachalam ..Respondents
PRAYER:
The Civil Revision Petition is filed under Section 25 of the Tamil
Nadu Buildings (Lease and Rent Control) Act against the orders and
decreetal order dated 24.02.1993 of the Appellate Authority Second
Additional Sub Judge, Coimbatore in RCA.No.102 of 1991 confirming
the order and decreetal order dated 05.08.1991 of the Rent Controller
I Additional District Munsif, Coimbatore in RCOP.No.166 of 1987.
For Petitioner : Mr.A.S.Vijayaraghavan
For Respondents
For R1 : Mr.R.Bharathkumar
For R2 : Mr.R.Jayaprakash
COMMON ORDER
The second appeal in SA.No.477 of 1993 is directed as against
the judgment and decree in AS.No.219 of 1991 dated 27.11.1992 on
the file of the Principal Subordinate Judge, Coimbatore confirming the
judgment and decree dated 05.08.1991 in OS.No.2306 of 1986 on the
file of the I Additional District Munsif, Coimbatore.
https://www.mhc.tn.gov.in/judis/
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial Court.
3. The case of the plaintiffs in brief is as follows:
3.1 The plaintiffs filed suit for permanent injunction. The case of the
plaintiffs is that they are brothers and the suit property is absolutely belong
to them. Originally the suit property was owned by grand father of the
plaintiffs. After demise of their grandfather and father, family members
partitioned the property on 21.08.1985. On the same day, the sisters have
relinquished their right and executed release deed in favour of the plaintiffs.
While being so, the respondent is a practising Doctor and also she is a tenant
under the plaintiffs for the premises bearing Door No.177. She purchased the
portions of the property in Door No.179, 185 and 186. The plaintiffs owned
portions at Door No.179, 182, 183, 185 and 186 They are carrying on chit
business in the name and style of Sri Ganapathy Chit Funds. The entire
portions, both that of the plaintiffs and the defendant are a “Thottikattu
house”. The entire properties are having common roof with a common beam.
There are rafters situated to the length of the property. All the buildings are
connected with common wall. Therefore, the entire superstructures are very
old and are in dilapidated condition. Therefore, any alteration to the physical
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
features of the portions purchased by the defendant will jeopardise the
superstructural soundness of the portions belonging to the plaintiffs. If the
beams and rafter or walls are disturbed in the defendant's portion, the
portion belonging to the plaintiffs would collapse. Therefore, the plaintiffs
filed suit for permanent injunction restraining the defendant from in any way
altering the physical features of the building comprised in Door No.179, 185,
and 186 in any manner whatsoever affecting the superstructural soundness
or weakening or disturbing the portions owned by the plaintiffs i.e. Door
No.180, 181A.
4. The defendant resisted the plaintiffs' case stating that she is a
doctor and she is doing her professional activities in rented premises at Door
No.177. Therefore she wanted to shift her practice to her own building to the
Door Nos.185 and 186. Since it is in a very bad condition, she wanted to
demolish and reconstruct a pucca building. Further stated that the plaintiffs
asked her to vacate the premises at Door No.177. She further stated that on
one hand, the plaintiffs asker her to vacate the premises and on the other
hand, they is not permitting her to put up pucca construction in the portion
purchased by her. She has got every right to demolish and reconstruct her
own building. She can construct the building without any damage causing to
the portions owned by the plaintiffs. She also undertook to repair any
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
damage caused to the portions belong to the plaintiffs. Therefore, the
plaintiffs are not entitled to seek any relief as prayed for and sought for
dismissal of the suit.
5. In support of the plaintiffs case, P.W.1 and P.W.2 were
examined and three documents were marked as Ex.P.1 to Ex.P.3. On the side
of the defendant D.W.1 and D.W.2 were examined and no documents were
marked. On considering the oral and documentary evidences adduced by the
respective parties and the submission made by the learned counsel, the trial
Court decreed the suit in favour of the plaintiffs. Aggrieved over the judgment
and decree of the trial Court, the defendant preferred an appeal suit in
AS.No.219 of 1991 before the file of the Principal Subordinate Judge,
Coimbatore. The first appellate Court on appreciating the materials placed
on records, dismissed the appeal by confirming the judgement and decree
passed by the trial Court. Challenging the same, the defendant has come
forward with the present second appeal.
6. At the time of admission of the second appeal, on 23.04.1993
the following substantial questions of law were framed :-
(i) Whether the courts below are right in accepting the
evidence of PW2 in preference to the evidence given by DW2
while DW2 alone is an Chartered Engineer and Approved Valuer
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
who inspected the premises and submitted a report upon the
instructions by the Advocate Commissioner appointed by the
court, whereas PW2 is not a Chartered Engineer and approved
valuer?
(ii) Whether the courts below are right in rejecting the
testimony of DW2 in preference to the interested testimony of
PW2?
(iii) Whether courts below are right in decreeing the suit
when the evidence of PW1 cannot be taken into consideration
and in that event when there is absolutely no evidence to
support the contentions of the plaintiffs/ respondents?
7. The learned counsel for the petitioner would submit that PW1
categorically admits that he does not have any objection for demolishing the
portion purchased by the defendant and to reconstruct the same. At the
instance of the defendant, Advocate Commissioner was appointed, and with
the help of engineer, he filed his report and stated that by giving proper
supports to the main rafters and the roof, the portion can be newly
constructed without causing any damage to the roofs, rafters as well as other
portions belonging to the plaintiffs. The defendant purchased property in
comprised in Door Nos. 179, 185 and 186 and she sought to carry out repair
by making proper constructions and in order to shift her clinic from the
portion at Door No.177 belonging to the plaintiffs. In fact now eviction was
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
also ordered against the defendant and she has to shift her clinic to the
portion which was purchased by her. Admittedly, the said portion is in
dilapidated condition and without putting pucca construction she cannot shift
her clinic. In fact the defendant also undertook to carryout repairs and
construction in her portion of the property without causing any damage to the
walls, rafters and roofs and portions belonging to the plaintiffs. In fact, if any
damage caused, she can very well rectify the said damages to the portions of
the plaintiffs.
8. Per contra, the learned counsel for the respondents contended
that admittedly all the portions belonging to the plaintiffs and the defendants
are under one roof. There are common walls between the plaintiffs and the
defendant portions. The beams put up for roof laid in the common wall. If the
walls of the portions removed, the entire roof will be collapsed. Even
according to the defendant, the entire building is in a dilapidated condition. If
touched one wall, the entire building will be collapsed. At the same time, the
portion which is occupied by the defendant belongs to the plaintiffs and they
are in dire need of the portion to conduct their own business, since the
plaintiffs have no other property to run their business. Therefore, the court
below rightly decreed the suit and prayed for dismissal of the appeal.
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
9. Heard Mr.A.S.Vijaya Raghavan, the learned counsel for the
petitioner, Mr.R.Bharathkumar, the learned counsel for the first respondent
and Mr.R.Jayaprakash, the learned counsel for the second respondent.
10. The defendant purchased the portions comprised in Door
No.179, 181a, 185 and 186. She is a doctor and running a clinic in a portion
comprised in Door No.177 which is belonging to the plaintiffs. The other
portions i.e. comprised in Door No.178, 180, 180a and 181 are owned by the
plaintiffs. Admittedly, the portions comprised in Door Nos.182, 183, 180a,
181a, 185 and 186 are under same roof. The portions comprised in Door
No.185, 186 and 181a situated between the common wall. Likewise, the
portion comprised in Door No.179 and 180 situated with common wall.
Further, the defendant is a tenant in a portion comprised in Door No.177
which is belonging to the plaintiffs. The portions comprised in Door
No.177,178, 179, 180 are under same roof. Admittedly all the constructions
are very old and some of the walls already collapsed and other portions are in
dilapidated conditions. The plaintiffs are running their business in the name
and style of Sri Ganapathy Chit Funds. After purchase of the portions by the
defendant, she intended to put up new construction in the portions comprised
in Door No.179, 185 and 186.
https://www.mhc.tn.gov.in/judis/
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
11. As stated supra, the portion comprised in 179 and 180 are under
same roof with the common wall. Likewise, the portion comprised in Door
No.185, 186 and portion 181a are under common roof and also with common
wall. Now the common wall of the portion comprised in Door No.185 and 186
and the common wall of the portions 179 and 180 intended to be demolish
by the defendant to put up pucca constructions. Considering the above
circumstances, this Court appointed Advocate Commissioner to take
assistance of the engineers attached to the PWD, Coimbatore and to get the
report. The Advocate Commissioner inspected the property with the help of
the PWD engineer and filed report for following purpose:
1. to inspect premises Nos.179, 185 and 186 and premises
Nos.180 and 181A forming the subject matter of
OS.No.2306 of 1986 on the file of District Munsif
2. the advocate commissioner is directed to take the
assistance of an engineer attached to the Public Works
Department of Coimbatore City Division while he makes
the inspection
3. the learned advocate commissioner is directed to get a
report from the engineer referred to above on the
following points
a. the nature and construction of premises Nos.179, 185,
186, 180 and 181A referred to above
b. whether demolition and reconstruction of premises
Nos.179, 185 and 186 is not at all possible or is it
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
possible? And
c.if so, the possibility and feasibility of the defendant
undertaking construction work in premises Nos.179, 185
and 186 and if such construction activities are
permitted, what would be the nature and extent of
the impart of such construction on premises Nos.180 and
181A?
4. the report of the commissioner /PWD engineer shall be
accompanied by a plan drawn by him;
5. Mr.D.Rajendran, the advocate commissioner had fixed
1.4.1999 as the date of inspection by him of the suit property
at Coimbatore. The advocate commissioner shall intimate the
parties to the suit well in advance the place of his stay at
Coimbatore
6. the advocate commissioner, if need arises shall be at
Coimbatore between 1.4.1999 and 4.4.1999 to complete the
work
Accordingly, the Commissioner inspected the entire suit property and filed
report and the relevant portion is extracted as follows:
4. The property is facing south and the subject matter of
the suit property is situated in Ganapathy within the limits of
the Coimbatore City Municipal Corporation and the property
situated to the North of Raja street and the property is facing
sough and the in between road and the premises there is a
drainage channel running East to West and there is a common
entrance from the Raja Street and I measured the entrance
which comes to 3 feet East to West. To the West of the
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
entrance, there are two doors No.178 and 177. Both door
numbers are respondent's property. I found a Board namely
'Plasto Chemicals”in Door No.178 and in Door No.177 the
appellant is running her clinic and I also found a Board
'Dr.Sumathy'. These two door numbers are roofed with
Mangalore tiles. To the East of the common entrance, there are
two Door Nos.185 and 186 and East of Door No.186 the
property belongs to third party which is called “Gauthem
complex”. I have measured the North South of the Door No.185
and 186 which comes to 16.4 feet which includes 2 feet
common wall between Door No.181-A and 185, 186. At the time
of my inspection the said common wall is not in existence and
the Door No.185, 186 do not have its backside wall and it is
also almost fallen and the Door No.185, 186 is without any
backside wall and roof is hanging without support of the said
wall. The door No.181-A to the North of the Door No.185 & 186
belongs to the first respondent and further North premises
bearing Door No.180A was told that it belongs to the first
respondent's mother. There is no common wall between
D.No.180A and 181A. No partition wall and roof stands only in
support of wooden Beam and there is thatched partition
between the premises. The appellant's counsel represented that
except the 180-A and 181-A all other premises are not
connected with the suit. To the North of 180-A there is another
portion which is door No.183. Respondent's Counsel
represented there is a verandah in front of all these Door
No.181A,180A and 183 but there is no wall between verandah
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
and house. But only thatched portion and from the thatched
portion 4.3 feet space in front of the house is there that is the
veranda as per the respondent's Advocate including this space
of 4.3 feet, measurement of D.No.180A and 181A is 10.5 feet.
There is another D.No.182 which faces the South and all the
other D.No.181A, 180A & 183 premises faces west. To the west
of the D.No.182 the common pathway goes to the Backyard
and to the further East there is another D.No.181 is there and
only in this portion alone a tenant namely Durai is residing and
there is an electric service connection in D.No.181.
5. I further state to the West of the front common
entrance in D.No.178 & 179 in situated and those portions are
found white washed and in good condition and at the end of
the backside wall of D.No.178, 177 the portion of the D.No.179
starts i.e. Norther side of the D.No.178, 177 is D.no.179. there
is a damaged wall to the length of 4.8 feet towards and North
South 2 feet. To the north of the D.No.179 is D.No.180. Both
portions are facing East. In front of the Door No.179 and 180
there is veranda which continues upto D.No.182 in L Shape, In
between D.No.179 and 180 there is common wall constructed
only with mud and both the portions are constructed only with
mud and no bricks used and there are 3 wooden beams on
which the roof stands and the 3rd beam is on the common wall.
The roof was also in damaged condition and entire roof is
covered with country titles (Nattu Odu). The entire roof of
D.No.179 and 180 stands in the support of wooden beam and
common wall. Except the common wall between D.No.179, 180
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
no wall is in existence either in North side or on the Southern
side of the common wall. The D.No.179 and 180 do not have
the closing wall and except the North South Wall in front side
and backside there is no East West wall to the D.No.179 and
180. The South North of D.No.179 measure 24.4 feet including
the common wall alone and the common wall was measured
which comes to 0.8 feet. The D.No.180 was closed at the time
of my inspection since the backside wall was already collapsed
there is no difficulty to go inside the premises.
6. I further submit that to the West of the D.No.177
there is a lane called Nadu Valavu Lane, The East & West wall
of D.No.179 extends 10 feet and then goes North South till the
end of D.No.180 and the measurement was taken and it comes
38.5 feet. North South. There is a door to come out from the
backyard of the premises. With the above observation I
completed my inspection and executed the warrant as per the
directions issued by this Hon'ble Court.
7. Since the P.W.D. Engineer was not present at the time
of my inspection I could not get a detailed report as per the
order of this Hon'ble Court. As per the inspection made by me,
D.No.179 and 180 is constructed with mud and in the D.No.185
and 186 except the front portion all the three side wall are not
in existence and I found the fallen wall from which it is found
that the wall would have been constructed with oddakal (Lime
Stone) and D.No.181 A does not have any wall except the
backside wall and other sides were covered with thatched
partition. So far as the possibility of demolition is concerned the
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
D.No.185 and 186 backside wall is not in existence and roof is
also without tiles and there is nothing to demolish except the
front side wall with doors which is also not in its good condition.
Further, the demolition of 179 is not possible without
demolishing the D.No.180 because both the portion are divided
by common wall though the southern side and northern side
wall is not in existence and both portions requires immediate
demolition and the D.No.179 alone cannot be demolished
separately the entire roof is continuous and running roof with
country tiles which may fall at any time.
8. The construction seems to be very old. The D.No.185
and 186 can be easily demolished and can be constructed
without disturbing the D.No.181A and 180A. because nothing
exist in between these two portions. So far as D.No.179 and
180 is concerned the Appellant can put up a new wall in front of
the common wall and demolish the D.No.179 alone leaving the
common wall. The D.No.180 and 179 are not in good condition
and even D.No.179 is not demolished the D.No.179 & 180 will
not exist for long time and it may collapse at any time. Except
the common wall and the roof which stands in support of
wooden beam nothing is there to fall in both Door No.179 and
180, with these observation.
12. According to the Advocate Commissioner, the portion comprised
in Door No.185 and 186 can be easily demolished and constructed without
disturbing the portion comprised in Door No.181a, since nothing exists
between these portions. Insofar as the Door No.179 and 180 is concerned,
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
there is a common wall and without putting support wall adjacent to the
common wall, it cannot be demolished, though both the portions are not in a
good condition. Further the roof stands in support of wooden beam.
Accordingly, the defendant can proceed with the renovation of her portion
comprised in Door Nos.185 and 186 without causing any disturbance or
damage to the portion comprised in Door No.181a. If any damage or loss
cause to the portion comprised in Door No.181a, the petitioner shall bear the
cost of damage.
13. Accordingly, the second appeal in SA.No.477 of 1993 is disposed
of. The Advocate Commissioner's report and plan shall form part and parcel
of this order.
14. Insofar as the civil revision petition is concerned, the petitioner is
a tenant under the respondents in a portion comprised in Door No.177.
Admittedly, the respondents are running their chit business in the name and
style of Sri Ganapathy Chit Funds. On perusal of the report submitted by the
Advocate Commissioner appointed by this Court in Second Appeal in
SA.No.477 of 1993, except the portion in Door.No.177, other portions are not
in a position to use for any purpose. Admittedly, except the portions which is
occupied by the petitioner, no other premises owned by the respondents
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
herein. Therefore, the courts below rightly ordered eviction on ground of
owner's occupation and the respondents filed petition for their bonafide
requirement. As such this Court finds no irregularity or infirmity in the order
passed by the court below.
15. Accordingly, the civil revision petition in CRP.NPD.No.1216 of
1993 is dismissed. Consequently, connected miscellaneous petition is closed.
No order as to costs.
21.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
To
1.The Principal Subordinate Judge,
Coimbatore
2.The I Additional District Munsif,
Coimbatore.
3.The II Additional Sub Judge,
Coimbatore
4.The Rent Controller / I Additional District Munsif,
Coimbatore
https://www.mhc.tn.gov.in/judis/
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
G.K.ILANTHIRAIYAN,J.
lok
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
21.01.2021
https://www.mhc.tn.gov.in/judis/
