Madras High Court
Ramaraj vs Murugasan on 8 October, 2021
SA(MD)No.617 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA.(MD)No.617 of 2006
1.Ramaraj
2.Chinnamani
3.Samuthirarajan
4.Ramakrishnan ... Appellants
Vs.
Murugasan ... Respondent
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code,
against the Decree and Judgment of the Subordinate Judge, Periyakulam in
AS.No.59 of 2000 dated 23.01.2006 confirming the Decree and Judgment of
the District Munsif, Periyakulam in OS.No.287 of 1989 dated 10.07.2000.
For Appellants : Mr.S.Madhavan
For Respondent : Mr.R.Venkateswaran
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SA(MD)No.617 of 2006
JUDGMENT
The plaintiffs in OS.No.287 of 1989 on the file of the District Munsif,
Periyakulam are the appellants in this Second Appeal. The suit was filed by
them for the relief of declaration that the suit wall is a common wall and that
the defendant should be restrained by a decree of injunction from raising any
construction thereon. The plaintiffs also sought the relief of mandatory
injunction for removing the construction already put up by the defendant. The
case of the plaintiffs was controverted by the defendant by filing written
statement.
2. An Advocate Commissioner was appointed and his plan and report
were marked as Court Exhibits 1 and 2. The trial Court framed necessary
issues. The second plaintiff examined himself as PW1 and one Periyasamy was
examined as PW2. Exhibits A1 to A10 were marked. The defendant was
examined as DW1. Exhibits B1 to B4 were marked. The trial Court by order
dated 10.07.2000, decreed the suit. Aggrieved over the same, the plaintiffs
filed AS.No.59 of 2000 before the Subordinate Court, Periyakulam. The first
appeal was dismissed and the decision of the trial Court was confirmed.
Challenging the same, this Second Appeal came to be filed.
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SA(MD)No.617 of 2006
3. The Second Appeal was admitted on 21.07.2006 on the following
substantial questions of law.
"a) The Courts below failed to see that under
Exhibit A1, a registered sale deed of 1944 the title to
the wall in dispute has been specifically mentioned as
common wall and the same had been enjoyed for more
than statutory period prescribing statutory title to the
same.
b) The Courts below failed to note the real
significance that could be attached to the B1 in that
half the cost of the wall was concluded thus making the
wall as common and that was being conveyed under
Exhibit A1.
c) The Courts below failed to note that when
once the agreement has ripened into placing the parties
in new position of debtor and creditor that alone would
prevail and not place them to status quo ante.?"
4. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memo of grounds and called upon this Court to
answer the substantial questions in favour of the appellants and decree the suit
as prayed for.
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SA(MD)No.617 of 2006
5. Per contra, the learned counsel appearing for the respondent
submitted that the impugned Judgment and Decree do not call for any
interference.
6. I carefully considered the rival submissions and went through the
evidence on record. The plaintiffs own the land lying immediately to the south
of the defendant's property. The plaintiffs' land originally was owned by
Irulandi Aasari. The said Irulandi Aasari vide Ex.A1 sale deed dated
16.06.1944, sold the same in favour of the plaintiffs' father S.Ramalinga Aasari
for a sum of Rs.300/-. No doubt the schedule set out in the sale deed
mentioned the northern boundary as a common wall. Merely because, in
Ex.A1, the wall is described as common wall, it cannot be called as common
wall. It must be established that it is a common wall. On the other hand, the
defendant side marked Exs.B1 and B2 to show that there was an understanding
between Irulandi Aasari with the father of the defendant, namely, P.Ramalinga
Aasari, that for a sum of Rs.37.50/-, Irulandi Aasari was given right over the
said wall up to 11 feet height on the southern side.
7. The defence of the defendant was that even though Irulandi Aasari
executed Ex.B2, Promissory Note, he failed to pay the said amount. That
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SA(MD)No.617 of 2006
necessitated the defendant's father to file a civil suit against Irulandi Aasari.
Since Irulandi Aasari failed to make the payment, the right conferred to
Irulandi Aasari over the southern side of the wall got extinguished and he could
not have conferred any right in favour of the plaintiffs' father. Even though the
said defence had been strongly projected, there is very little evidence to show
that the amount in question was not really paid by Irulandi Aasari.
8. Even if one assumes that Irulandi Aasari failed to discharge the
liability under Ex.B2, Promissory Note, the only right the defendant's father
had was to recover the said amount from Irulandi Aasari. For instance, if the
sale consideration under a sale deed was not paid by the purchaser, the sale will
not be invalid. The vendor will have right to recover the sale consideration.
That is why, in the present case, even according to the defendant, his father had
filed a suit for recovery of money. The fact that certain rights were conferred
on Irulandi Aasari cannot be doubted and questioned at this point of time.
Even though, the trial Court dismissed the suit, the first Appellate Court has
rendered certain findings in favour of the plaintiffs. I have went through
Exs.B1 and B2. On careful consideration of the above, it is seen that the only
conclusion one can arrive at is that the plaintiffs can have right over the
southern side of the suit wall up to 11 feet height. The plaintiffs cannot restrain
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SA(MD)No.617 of 2006
the defendant from putting up any construction on the suit wall. The
substantial questions are answered accordingly. The Second Appeal is
disposed of accordingly. No costs.
08.10.2021
Index : Yes / No
Internet : Yes/ No
mbi
Note :In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the responsibility
of the advocate/litigant concerned.
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SA(MD)No.617 of 2006
To
1. The Subordinate Court,
Periyakulam
2. The District Munsif Court,
Periyakulam
https://www.mhc.tn.gov.in/judis/
SA(MD)No.617 of 2006
G.R.SWAMINATHAN, J.
mbi
S.A.(MD)No.617 of 2006
08.10.2021
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