Madras High Court
Palanisamy vs Manicka Boyan on 14 July, 2021
S.A.No.869 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.869 of 2008
and
M.P.No.1 of 2008
1.Palanisamy
2.Sampath Kumar
3.Prakash
4.Easwari ...Appellants/Appellants/
Defendants
Vs.
1.Manicka Boyan
2.Bangaru Boyan
3.Kannammal
4.Sarasammal
5.Rajammal
6.K. Selvam
7.Papathiammal
8.Murugan
9.Manju @ Manjunathan
10.Kanagarajendran
11.Sulochana Manickam
12.Thangamani Thangavel
13.Chinthamani ...Respondents/Respondents/
Plaintiffs 1 and 2 and 4 to 14
1/16
https://www.mhc.tn.gov.in/judis/
S.A.No.869 of 2008
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 04.01.2008
made in A.S.No.24 of 2007 on the file of the learned Principal
Subordinate Judge, Gobichettipalayam confirming the Judgment and
Decree dated 20.01.2007 made in O.S.No.278 of 1998 on the file of the
learned District Munsif, Gobichettipalayam.
For Appellants : Mr.R.T. Doraisamy
For Respondents : Mr.Ms.Vidya Shree
for M/s.P.T. Ramadevi
for R13
R1, R5 and R12 – Served
-No appearance
R7 – died
Not ready in notice regarding
R2 to R4, R6, 8 to 11.
JUDGMENT
The defendants are the appellants before this Court. The appeal
is filed challenging the concurrent Judgment and Decree in A.S.No.24
of 2007 on the file of the learned Principal Subordinate Judge,
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S.A.No.869 of 2008
Gobichettipalayam confirming the Judgment and Decree in O.S.No.278
of 1998 on the file of the learned District Munsif, Gobichettipalayam
dated 20.01.2007. The parties are referred to in the same array as in
the suit.
2.The plaintiff had filed the suit O.S.No.278 of 1998 on the file
of the learned District Munsif, Gobichettipalayam for the following
reliefs:
“(a)declaring that the plaintiffs 1 to 6 are and
subsequently 1 to 13 and now the 14th plaintiff alone
is the absolute owners of the suit wall (Amended as
per order in I.A.No.1181 of 2005 dated 27.06.2006)
(b)granting a permanent injunction restraining
the defendants and their men from trespassing into
the suit wall or interfering in any manner with the
plaintiffs peaceful possession and enjoyment of the
suit wall
(c)granting a mandatory injunction directing
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S.A.No.869 of 2008
the defendants to remove all the roofs or and the
resting walls of the suit wall and restore the same to
its Original Petition within a time to be specific by
this Court and on non compliance of the same may be
done by an Officer of this Court.”
3.The case of the plaintiffs is that the plaintiffs 1 to 3 are the sons
and 4 to 6 are the daughters of one Mottaiya Boyan @ Thanthoni
Boyan. The said Mottaiya Boyan @ Thanthoni Boyan died on
07.06.1992 leaving behind the aforesaid persons as his legal heirs. The
said Mottaiya Boyan @ Thanthoni Boyan had purchased a property
under a registered Sale Deed dated 24.05.1965 and he was in
possession and enjoyment of the same since then. The said Mottaiya
Boyan @ Thanthoni Boyan had purchased the said property with
compound wall on four sides described as A, B, C, D, E and F in the
Plaint.
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S.A.No.869 of 2008
4.According to the plaintiffs, it was the portion marked as B,C,D
which was the subject matter of the present suit. After the death of
Mottaiya Boyan @ Thanthoni Boyan, the plaintiffs 1 to 6 became
entitled to 1/6th share in the property. It is their case that the 7th
plaintiff was inducted as their tenant in the year 1986 and he was
running a lorry body building works in the suit property under the
name and style of “Shanthi Industries”. The 7th plaintiff had
constructed a building in the year 1987. The plaintiff had decided to
sell the said property to the 7th plaintiff who was already in possession
as a tenant, however, the sale was not complete. It is their case that the
defendants who are the owners of the property on the South-East of the
suit property, with an intention to grab the same, had put up a roof of
their shed on the suit wall for about 7 1/2 feet towards North from
Point D and 6 feet to the West from Point D. Immediately, on coming
to know about the same, the plaintiffs have informed the defendants to
remove the same failing which they were warned that legal action
against the defendants would be initiated to remove the offending
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S.A.No.869 of 2008
portion. Though the defendants have promised to remove the same
they failed to do the same.
5.On the contrary, they had trespassed into the suit property and
caused damages to the suit property. Thereafter, on 06.08.1998, the
defendants attempted to trespass into the suit property which was
successfully prevented. The defendants have threatened that they
would repeat their attempts. Therefore, the suit.
6.The defendants had filed a Written Statement inter alia denying
the various allegations contained in the Plaint. It is the specific case of
the defendants that B, C, D wall exclusively belonged to Rakki Boyan
@ Ammasai Boyan. The wall and the house on its East and West
belonged to Ammasai Boyan's father Roya Boyan. The said Roya
Boyan on 07.11.1966 had executed his Will bequeathing the same to
his wife Mara Boyachi. After the death of Mara Boyachi and
Ammasai Boyan, it is their specific case that the defendants are nothing
to do in the B,C,D wall. The defendants have also got a right to the
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S.A.No.869 of 2008
Western and Southern side of the wall. The defendants had right to use
the property to the South and East of the wall for colour washing and
maintaining the said wall. With the malafide intention of preventing
this right, the plaintiff has come forward with the present suit. Further,
this right has been enjoyed by the defendants and his forefathers for
well over several decades.
7.The 4th defendant had filed Additional Statement which has
been adopted by the defendants 1 to 3. This Additional Written
Statement came to be filed after the impleadment of the plaintiffs 8 to
14 that the plaintiffs 1 to 13 had sold the suit property to the 14th
plaintiff and put her in possession of the same. They had contended
that she is the absolute owner of the suit property. The defendants
would submit that the 14th plaintiff cannot maintain the suit on the
basis of the Sale Deed and since the plaintiffs 1 to 13 had sold the
property they also could not maintain the suit. Both the trial Court and
the Appellate Court had held in favour of the plaintiff. The trial Court
had decreed the suit as prayed for, against which the defendants had
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S.A.No.869 of 2008
filed A.S.No.24 of 2007 on the file of the learned Principal Subordinate
Judge, Gobichettipalayam in A.S.No.24 of 2007. The learned
Subordinate Judge, proceeded to dismiss the Appeal.
8.Originally, notice was ordered in the suit, however, after
hearing the arguments of the learned counsels the following Substantial
Questions of Law came to be framed:
“(1)Whether the plaintiffs can claim any right
over the wall described as B, C, D wall in the suit
schedule, especially, under Ex.A.6 - Sale Deed?
(2)Whether the Courts below are right in
decreeing the suit when the description of the suit
property as given in Ex.A.1 and Ex.A.6 does not tally
with the suit wall as described in Ex.C.2 –
Commissioner's Plan and the suit description in the
Plan?
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S.A.No.869 of 2008
(3)Whether the 14th plaintiff is entitled to the
relief, especially, under Ex.A.6 – Sale Deed, it is
clearly stated that there is no wall in existence in the
suit property though Ex.A.1 would talk about a
compound on all sides?”
9.Mr.R.T. Doraisamy, learned counsel appearing on behalf of the
appellant would contend that the Courts below have failed to appreciate
that the wall in question belongs to the defendants and the defendants
had put up the construction only upon their wall. He would further
argue that the plaintiffs have examined only the 14th plaintiff who is the
subsequent purchaser and none of the plaintiffs have entered the box to
speak about the wall and the alleged encroachment thereon.
10.The learned counsel would further submit that the Courts
below have overlooked the admission of P.W.1 that the properties of
the plaintiffs and the defendants are independent properties and not
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S.A.No.869 of 2008
connected with each other. The Courts below have not been able to
identify the property which belonged to the plaintiffs and the
defendants. He would therefore submit that both the Courts below
have committed grave error in granting the Decree.
11.Per contra, Ms.P.T.Ramadevi, learned counsel for the
plaintiffs would submit that the properties and the wall described in
Ex.A.6 had been conveyed and the wall on all the sides has been
conveyed under the Sale Deeds. The learned counsel would further
submit that the Advocate Commissioner's Report and Plan would
clearly show that the defendants have encroached on the B, C, D wall
as shown in Ex.C.3 – Plan of the Commissioner. She would submit
that both the Courts below have considered the above details and has
therefore decreed the suit.
12.Heard the learned counsel appearing on either side and
perused the papers.
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S.A.No.869 of 2008
13.The entire dispute revolves around the existence of the B,C,D
wall and its identity. In this regard, the description of the properties as
provided in the suit Plaint and Ex.A.1 and Ex.A.6 need to be perused.
In the Plaint, the suit property is described as follows:
“Gobichettipalayam Registration District Gobi
Sub Registration District, Gobi Taluk, Modachur
Village, within Municipal Limits Gobi Town
T.No.64/E ward 'C' Block 26 D.No.17 ad-measuring
0.01.13 Hectaares and the same is situate within the
following boundaries:
North of East West Road and the property ofo
the defendants; West of North South Lane; East of
the property of Manikarar and others; and South of
the Ramapandaram's house and lane, with doors,
windows walls sheds electrical fittings compound
walls on the four sides, etc., in this the subject matter
of the suit is a stony wall with 1 ½' breadth is shown
as 'B', 'C', 'D' wall in the Plaint plan.”
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S.A.No.869 of 2008
14.In E.x.A.1, the suit property has been described within the
following boundaries and bearing Door No.17, North Car Street:
South by - Car Street
East by - Kolantha Boyan's house
West by - Modachur Maniyakarar's land
North by - Ramasamy's house
within this, a South facing 2 ½ Anganna's tiled house with the pathway
and West of the house a newly constructed 3 ½ Anganna's tiled house a
compound wall on all four sides.
15.The boundary descriptions in Ex.A.6 are identical. However,
a perusal of Annexure – 1A would read otherwise. It is clearly
described that the property does not consist of a compound wall. When
the properties described in Ex.A.1 and Ex.A.6, is compared with the
property description in the suit, the same does not correlate. The
South boundaries under Ex.A.1 and Ex.A.6 is only the East West Road,
however, the suit schedule, and the Commissioner's Report, would
show the road and the defendant's house as the South boundary of the
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S.A.No.869 of 2008
plaintiff's property. That apart, under Ex.A.1 and Ex.A.6, the Eastern
boundary is shown as Kulanthai Boyan's house. However, the suit
schedule would show the existence of North - South lane on the East.
The Commissioner's Report shows the defendants' property as well as
the lane of the Eastern boundary. Likewise, North boundary is that of
Ramasamy whereas in suit schedule, it is shown as Ramapandaram's
house and lane as existing on the North. However, the Commissioner's
Report is silent in this regard. Therefore, there appears to be a wide
disparity in the description in the Parent Document, the suit schedule
and the Commissioner's Report.
16.Further, the document under which the 14th plaintiff had
purchased the property, namely, Ex.A.6 would clearly describe that
there is no compound wall around the suit property. These factors have
not been considered by both the Courts below. In fact, the Courts
below have not compared the description of the properties.
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S.A.No.869 of 2008
17.In the light of the above, the Substantial Questions of Law 1
and 2 are answered in favour of the defendants and the Judgment and
Decree of the Courts below are set aside.
The Second Appeal is allowed and the Judgment and Decree in
O.S.No.278 of 1998 on the file of the learned District Munsif,
Gobichettipalayam as confirmed by the learned Principal Subordinate
Judge, Gobichettipalayam in A.S.No.24 of 2007 are set aside. There
shall be no order as to costs. Consequently, connected Miscellaneous
Petition is closed.
14.07.2021
Index : Yes/No
Internet : Yes/No
mps
https://www.mhc.tn.gov.in/judis/
S.A.No.869 of 2008
To
1.The Principal Subordinate Judge,
Gobichettipalayam.
2.The District Munsif,
Gobichettipalayam.
https://www.mhc.tn.gov.in/judis/
S.A.No.869 of 2008
P.T. ASHA, J,
mps
S.A.No.869 of 2008
and
M.P.No.1 of 2008
14.07.2021
https://www.mhc.tn.gov.in/judis/
