Madras High Court
K.Kandavel vs S.V.Mahalinga Mudaliar on 8 October, 2021
S.A.No.1199 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1199 of 2003
K.Kandavel ... Plaintiff / Appellant / Appellant
-Vs-
S.V.Mahalinga Mudaliar ... Defendant / Respondent / Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 22.12.2000 made in A.S.No.13
of 2000 on the file of the Subordinate Judge, Sankarankoil in confirming
the judgment and decree dated 11.12.1997 made in O.S.No.126 of 1994 on
the file of the District Munsif Court, Sankarankoil.
For Appellant : Mr.R.Govindaraj
For Respondent : Mr.F.X.Eugene
JUDGMENT
The plaintiff in O.S.No.126 of 1994 on the file of the Principal
District Munsif, Sankarankoil is the appellant in this second appeal.
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S.A.No.1199 of 2003
2. The suit was filed for the relief of declaration as well as permanent
injunction. The respondent herein filed a detailed written statement
controverting the plaint averments. The suit was dismissed by the trial
court by judgment and decree dated 11.12.1997. Aggrieved by the same,
the plaintiff filed A.S.No.13 of 2000 before the Sub Court, Sankarankoil.
By the impugned judgment and decree dated 22.12.2000, the first appellate
court confirmed the decision of the trial court and dismissed the appeal.
Challenging the same, this second appeal came to be filed. The second
appeal was admitted on the following substantial questions of law:-
“(i) Whether in law the defendant can legitimate his act of nuisance
merely because he has been causing nuisance by operating powerlooms in
the residential locality few years before the institution of the suit when
continuance of nuisance for a length of time cannot legitimate a nuisance?
(ii) Whether in law the plaintiff is entitled to access through the
defendant's property to repair his wall by custom and easement of necessity,
as the plaintiff constructed his wall on the western side leaving 1 ½ feet
strip of land and when the defendant closed access to the 1 ½ feet strip of
land by constructing his walls?
(iii) Whether in law the judgment and decree passed by the courts
below are sustainable when they have failed to consider and appreciate the
oral and documentary evidence on records in their proper perspective?”
3. The learned counsel for the appellant reiterated all the contentions
set out in the memorandum of grounds and called upon this court to answer
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S.A.No.1199 of 2003
the substantial questions of law in favour of the appellant and set aside the
impugned judgment and decree and allow this appeal as prayed for.
4. Per contra, the learned counsel appearing for the appellant
submitted that the impugned judgment and decree do not warrant any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record. The plaintiff and the defendant are neighbors. The
plaintiff's wife purchased a vacant site vide Ex.A1 dated 16.03.1984 and
thereafter, the plaintiff put up his residence. The defendant had purchased
the adjacent property even earlier under Ex.B1 dated 17.01.1979. The trial
court had appointed an advocate commissioner and his report and plan were
marked as court exhibits 1 and 2. The trial court after a careful
consideration of the advocate commissioner's report and plan had given a
categorical finding that the plaintiff had left 1 ½ feet set back area on the
western side, while putting up his house. Thus, a tiny space runs between
the plaintiff's house and the defendant's house. The plaintiff moved the trial
court seeking more than one relief. The primary relief sought for by him
was that he should be permitted to enter the defendant's house for the
purpose of maintaining the western wall. Though the learned counsel for
the respondent would claim that only a common wall separates the two
houses, the finding rendered by the trial court clearly establishes that there
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S.A.No.1199 of 2003
is a 1 ½ feet space lying between the two houses. When the plaintiff had
put up his house within the land that was purchased by him, he is certainly
entitled to maintain it. The trial court has given a further finding that even
though the east-west dimensions of the defendant's land is only 31 feet as
per Ex.B1, the construction put up by him actually measures 33 feet and
two inches.
6. It is this that impels me to direct the defendant to permit the
plaintiff to do the maintenance work. Of-course, the plaintiff cannot insist
that he would do maintenance work as and when he pleases. Normally
whitewashing work is done once in a year. The plaintiff is permitted to
address the defendant in this regard and on requisition from the plaintiff,
the defendant shall permit the plaintiff to undertake such maintenance work
in respect of the plaintiff's western wall. The defendant can also indicate
the convenient dates and timings. I make it clear that the plaintiff can make
such a request once in a year. The third substantial question of law is
answered in favour of the appellant only to this limited extent. The other
reliefs sought for by the plaintiff have been concurrently found against the
plaintiff by the courts below. Exercising jurisdiction under Section 100 of
C.P.C., I do not find it proper to interfere with the same. The other
substantial questions of law are answered against the appellant.
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S.A.No.1199 of 2003
7. The second appeal is partly allowed. No costs.
08.10.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Sankarankoil.
2.The District Munsif Court, Sankarankoil.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.No.1199 of 2003
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.No.1199 of 2003
08.10.2021
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