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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
For R2 : Mr.R.Jayaprakash
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 JUDGMENT
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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
file of the I Additional District Munsif, Coimbatore.
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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
condition. Therefore, any alteration to the physical 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 damage
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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
who inspected the premises and submitted a report upon the
instructions by the Advocate Commissioner appointed by the
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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 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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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.
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.
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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
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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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
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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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 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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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 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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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
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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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 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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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,
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 defendant shall bear the
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
cost of damage.
13. Accordingly, the judgment and decree dated 05.08.1991 passed
in OS.No.2306 of 1986 on the file of the I Additional District Munsif,
Coimbatore and the judgment and decree dated 27.11.1992 passed in
AS.No.219 of 1991 on the file of the Principal Subordinate Judge,
Coimbatore are set aside and 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 judgment.
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
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
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
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
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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
G.K.ILANTHIRAIYAN,J.
lok
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SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
SA.No.477 of 1993 & CRP.NPD.No.1216 of 1993
21.01.2021
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