Madras High Court
Sp.Rm.L.Ramakrishnan Chettiar ... vs N.Annamalai Chettiar on 11 January, 2021
S.A.No.893 of 1994
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.01.2021
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.893 of 1994
and
C.M.P.(MD).No.10650 of 1994
1.SP.RM.L.Ramakrishnan Chettiar (Died)
2.L.R.M.K.Valliammal Achi
3.L.R.M.K.L.Ramakrishnan @ Kannan ... Appellants
Vs.
1.N.Annamalai Chettiar
2.R.M.Ramakrishnan
3.R.Annamalai
4.R.Subramanian
5.L.R.M.K.Subramanian
6.S.Ramanathan
7.S.Ramakrishnan
8.L.Valliappan ... Respondents
(Appellants 2 and 3 and respondents 2 to 8 are brought on record
as legal representatives of the deceased Sole Appellant, vide order
of this Court dated 31.10.2017 made in C.M.P.(MD.Nos.3414 to
3416 / 06)
PRAYER: Second Appeal is filed under Section 100 of C.P.C.,
against the judgment and decree dated 28.02.1004 made in
1/14
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S.A.No.893 of 1994
A.S.No.48 of 1993 on the file of the District Judge, Pasupon
Muthuramalinga Thevar District at Sivagangai, confirming the
judgment and decree dated 30.04.1993, made in O.S.No.345 of
1989, on the file of the District Munsif of Sivagangai.
For Appellant : Mr.K.Govindarajan
for M/s.Sarvabhauman Associates
For R-1 : Mr.S.Ramesh
for Mr.V.Raghavachari
For R-2 to R4
& R-6 to R-8 : Dismissed
vide Court order dated 13.11.2019
JUDGMENT
Aggrieved over the concurrent findings of the Courts
below passed a decree for mandatory injunction against the
defendant / first appellant to remove the constructions put up on
the common wall in the suit property, the present Second appeal is
filed.
2. The parties are referred to as per their own ranking before
the Courts below.
3. The brief facts leading to the filing of the present
second appeal is as follows:
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S.A.No.893 of 1994
3.1. The plaintiff and the defendant are the owners of
the properties adjacent to each other. The plaintiff is the owner of
the property situated within the north of the defendant's property
as well as the defendant is the owner of the property situated
within the south of the plaintiff's property. There is a common
east-west compound wall in their properties and it is common to
both of them. The height of the common wall is only about 5.1/4
feet. The plaintiff is mostly residing in Coimbatore. The suit
property situated is far away from his residence. In the year 1985,
the defendant had unlawfully and illegally raised the height of the
common compound wall in the middle to the length of 50 feet and
to a height of 10 feet and put a tiled structure in such a manner so
as to drain water into the property of the plaintiff.
3.(2). It is also the case of the plaintiff that the water
falling from such a height will certainly cause serious damage and
loss to his property. Therefore, the plaintiff has issued a legal
notice complaining about the unlawful activity of the defendant.
Whereas, the defendant stated that the compound wall in question
was constructed as early as in the year 1987 and completed within
a period of few months. The defendant further stated that the
plaintiff did not take any exception and only after getting consent
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S.A.No.893 of 1994
from the plaintiff, he raised the height of the compound wall.
Hence, the suit.
4. The appellants filed a written statement by admitting
the ownership of the property and the location of the property. It
is submitted by the appellants that the compound wall in question
is common for both the appellants and the respondents and the
height of the compound wall is raised only with the specific
permission of the father of the respondents 2 to 8 and the first
respondent is also aware of the construction put up by the first
appellant and the construction was also put up in such a manner
that water will not drain into the respondents' property. It is
submitted by the appellants that no damage will be caused to the
respondents' property. Hence, the appellants filed this appeal for
dismissal of the suit.
5. Based on the above pleadings, the trial Court has
framed the following issues:-
“(i). Whether the plaintiff is entitled to
the relief of mandatory injunction as prayed for?
(ii). Whether the defendant has right of
easement?
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S.A.No.893 of 1994
(iii). To what other relief the plaintiff is
entitled for?”
6. During trial, on the side of the plaintiff, P.W.1 was
examined and Ex.A.1 to Ex.A.4 were marked. On the side of the
defendant, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.8
were marked and Ex.C.1 to Ex.C.7 were marked as Court
documents.
7. The trial Court based on the evidence and materials
decreed the suit and the First Appellate Court has also confirmed
the findings of the trial Court. As against which, the present
Second Appeal is filed.
8. While admitting the Second Appeal, the following
substantial questions of law have been framed:-
“1. Is the Lower Appellate Court correct in
holding and confirming the findings of the trial Court
that while the plaintiff has knowledge about the
heightening of the common compound wall, which was
done immediately after the purchase in the year 1982,
is entitled to ask for a mandatory injunction / to remove
the said compound wall after a considerable length and
if so, is it not the fact that the doctrine of acquiescence
come into operation?
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S.A.No.893 of 1994
2. Is it not open to the Court below to frame an
issue on the basis of the plaint and the evidence
adduced by the litigants in a particular proceeding?”
9. The learned counsel appearing for the appellants
submitted that though the compound wall is common to both the
appellants and the respondents, the construction was put by the
first appellant only with the permission of the first respondent. It is
their further contention that the first appellant himself has
admitted the fact that the compound wall was put up as early as in
June 1987 and whereas, the suit has been filed by the respondents
in the year 1989 after a period of two years. Hence, it is the
contention of the appellants that the suit is not maintainable and it
is barred by limitation. It is their further contention that the
compound wall in question was raised only after getting oral
consent from the first respondent and the trial Court had not
answered this aspect. It is their further contention that only after
getting oral consent from the first respondent, the compound wall
is constructed and it could not be demolished. Hence, they prayed
for allowing the appeal.
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S.A.No.893 of 1994
10. The learned counsel appearing for the respondents
would submit that the contention of the appellants is without any
evidence and the property itself was purchased by the plaintiff in
the year 1982 and the compound wall itself was constructed in the
year 1987 and the suit has been filed within a period of two years.
It is their further contention that if the construction was put up
only after getting permission from the first plaintiff, the same has
to be established by the defendants. But, there is no pleading as
regards the permission given by the first respondent. The Courts
below has clearly found that the construction was put up only
without permission of the first respondent which was nearly raised
about 10 feet height and one feet width. Therefore, when the
defence of the appellants is found to be false, the respondents /
plaintiffs being the owner of the compound wall, are certainly
entitled to mandatory injunction. Hence, he prayed for dismissal of
the appeal.
11. In the light of the above submissions and on
analysing the materials and evidences, it is clear that it is not
disputed by both the parties that the subject matter of the property
belonged to both the parties. The first appellant purchased the
property along with the compound wall in the year 1987. It is not
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S.A.No.893 of 1994
the case of the appellants that the compound wall existed even
while the purchase made by the first respondent. On the other
hand, it is the specific contention of the appellants that the
construction was put up by the first appellant and the compound
wall was raised upto ten feet height in the year 1987 that too with
the permission of the first respondent. Whereas, there is no
pleadings whatsoever as to the nature of the permission given by
the first respondent and the date of construction etc.
12. The plaintiff has admitted in his evidence that the
compound wall was demolished in the year 1983 and the
construction was put up in the year 1985. On perusal of the entire
evidences, though such reference was made in the P.W.1's
evidence, this Court is able to see that the year of the construction
has been wrongly typed in the deposition for the simple reason that
the first defendant has purchased the property in the year 1987
and the suit has been filed in the year 1989 and therefore, the
respondents' evidence that the first appellant put up the
construction in the year 1987 indicate that there was mistake in
the deposition. Even in the evidence, the appellants had clearly
admitted that only after the purchase of the property, the
respondents have given a consent for raising the compound wall.
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S.A.No.893 of 1994
The evidence of D.W.1 and D.W.2 would clearly indicate the fact
that the construction was put up only after getting consent from
the first respondent. However, the nature of the consent has not
even pleaded. There was no witness except the evidences of D.W.1
and D.W.2 to prove the said consent. Admittedly, the property is a
common property at the time of purchase by the first defendant
and the compound wall was not raised to such level (i.e.,) 10 feet
height. Only after his purchase in the year 1987, the same was
raised, which had been admitted by the first defendant.
13. In such view of the matter, this Court is of the view
that when the property held to be a common to the joint co-owners,
each are entitled to use the common wall and one cannot make any
construction without getting permission from the other co-owner.
If one co-owner is allowed to use the wall exclusively, it will
certainly infringe the rights of the others. The nature of the
construction put up by the defendants and the photographs filed
before the trial Court would clearly indicate that after raising the
height of the compound wall, the rain water drained into the
property of the plaintiffs and it may lead to serious damage to the
other co-owners.
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14. At this juncture, it is relevant to refer the judgment
of this Court reported in 1996 2 MLJ 505-(C.Mayam Perumal
Konar and others Vs. Thangammal), in which it has been held
that when the disputed wall is a party common wall and the
plaintiff is entitled to the relief of permanent injunction and also
entitled to the relief of mandatory injunction cannot be said to be
either improper or perverse. In Paragraph Nos.11 and 15 of the
above said judgment, it has been held as follows:-
“11. In M.P.Philip Vs. Chinna Subba Iyer
A.I.R.1956 Tra.Cochin 57, it is observed that;
“It is settled law that any one of
such co-owners cannot build upon such a party
wall so as to make exclusive use of the wall for
himself, without the consent of the other co-
owner. If any such unauthorised construction is
attempted by one co-owner the other co-owner
has the right to get such unauthorised
construction removed.
The act of one co-owner in raising
the height of the party wall build to his own
convenience without the consent of the other
co-owner will constitute trespass in the eye of
law. The other party is entitled to a mandatory
injunction so that the unauthorised construction
over the wall is removed and the position of the
wall is restored to the situation in which it
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existed prior to such unauthorised
construction.”
15.On the basis of the principles
laid do0wn by the above referred decisions, the
concurrent findings of the Courts below that
disputed wall is a party common wall and the
plaintiff is entitled to the relief of permanent
injunction and also the relief of mandatory
injunction cannot be said to be either improper
or perverse. As a matter of fact, the evidence
and the Commissioner's report and plan
disclose that in the party-wall wherein lies the
portion X, Y, F, E under Ex.C-3, the entire
party-wall has been occupied by the
construction of the defendants and the
defendants have also put up number of pillars
on the east of the party-wall over which only
the construction rests. In these circumstances,
I am in entire agreement with the findings of
the Courts below that raising of the party-wall
to a considerable height by the defendants and
wherein the entire party-wall has been
occupied by the defendants would virtually
prevent anyone from making use of the same
for any other purpose. Hence the Courts below
are justified in granting the decree for
declaration, permanent injunction as well as
mandatory injunction in favour of the plaintiff.
Consequently, I am unable to accept any of the
arguments of the learned counsel for the
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appellant. Consequently, the Second Appeal
fails and is dismissed. No order as to costs.”
15. Having regard to the above said judgment and after
analysing the entire materials and evidences, this Court is of the
view that this Court do not find any infirmity in the judgment of the
trial Court. Accordingly, the substantial questions of law are
answered.
16. It is not the case of the appellants that the
respondents have knowledge and acquiescence about the
construction and therefore, the question of applying doctrine of
acquiescence will not arise in this case.
17. The first defendant has not entered into the witness
box, whereas, his grand son deposed as power of attorney of the
first defendant. After his examination is over, the first defendant
himself entered into the box and examined himself as D.W.2. Once
his power of attorney has deposed, the question of again entering
to fill the lacuna cannot be permitted. The party to proceedings
should be examined first before any other witness on his side.
However, the Court can permit the party to examine him later,
after the witness is examined. However, in this case, no permission
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whatsoever obtained by the defendants to examine himself at later
point of time.
18. Therefore, the evidence of the defendants cannot
be given much importance in this case. At any event, even when
the entire evidences of both D.W.1 and D.W.2 are scanned, the
specific contention that the construction was put up only with the
consent has not been established. In such view of the matter the
defence taken by the defendants seems to be false.
19. With the above observation, the Second Appeal
stands dismissed. However, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
11.01.2021
Index : Yes/No
Internet : Yes/No
tsg
To
1.The District Judge,
Pasupon Muthuramalinga Thevar District, Sivagangai,
2.The District Munsif, Sivagangai.
3.The Section Officer,
V.R. Section, Madurai Bench of Madras High Court, Madurai.
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S.A.No.893 of 1994
N.SATHISH KUMAR,J.
tsg
Judgment made in
S.A.No.893 of 1994
Dated :
11.01.2021
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