Patturoja vs Arumugam
2021 Latest Caselaw 19629 Mad

                                                                             S.A.(MD)No.757 of 2006

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 24.09.2021

                                                       CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.757 of 2006


                   Patturoja                            ... Appellant / Respondent / Defendant

                                                       -Vs-


                   Arumugam                             ... Respondent / Appellant / Plaintiff

                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree of the learned first Additional
                   Subordinate Judge, Trichirappalli in A.S.No.168 of 2004, dated 20.10.2005
                   reversing the decree and judgment of learned second Additional District
                   Munsif, Trichirappalli in O.S.No.865 of 1996, dated 31.08.2004.


                                       For Appellant          : Mr.S.Muthukrishnan
                                       For Respondent         : Mr.M.Siddharthan


                                                   JUDGMENT

The defendant in O.S.No.865 of 1996 on the file of the second

Additional District Munsif, Trichy is the appellant herein.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.757 of 2006

2. The respondent herein namely Arumugam filed the said suit for

restraining the appellant herein from interfering with his possession and

enjoyment of the suit 'B' schedule property by putting up any construction

or in any other manner. The case of the plaintiff was that he is the owner of

the 'A' schedule property. He purchased the same from one Lalitha vide

registered sale deed dated 30.05.1990. The said Lalitha had sold a portion

lying to the east of 'A' and 'B' schedule property to the appellant Arumugam

vide sale deed dated 22.08.1983.

3. It is the specific case of the plaintiff that Lalitha and the appellant

entered into an agreement dated 10.03.1990 that 'B' schedule property will

always be maintained as 5 feet common lane so that both the parties can use

the same to reach the back portions of their house. The contention of the

plaintiff Arumugam is that the benefit under the said agreement will enure

in his favour also. His grievance was that the appellant Patturoja begun to

act in contravention of the said agreement by putting up construction in the

'B' schedule property. That necessitated filing of the said suit.

4. The appellant filed written statement controverting the plaint

averments. According to the appellant, 'B' schedule property which https://www.mhc.tn.gov.in/judis

S.A.(MD)No.757 of 2006

measures 5 feet east-west and 56 feet north-south falls in a portion of the

property was purchased by her under Ex.B1 dated 22.08.1983. Ex.A3

agreement dated 10.03.1990 between Lalitha and Patturoja never came into

force. In any event, Lalitha could not have conveyed the title that

legitimately belongs to Patturoja in favour of the plaintiff through Ex.A3.

Based on the rival pleadings, the trial Court framed the necessary issues.

The plaintiff Arumugam examined himself as P.W.1 and marked Ex.A1 to

Ex.A3. The defendant Patturoja examined herself as D.W.1. Ex.B1-sale

deed dated 22.08.1983 executed in favour of Patturoja was marked as

Ex.B1. An advocate commissioner was appointed and his reports and plans

were marked as Court Ex.C1 to Ex.C4. After a consideration of the

evidence on record, the trial court by judgment and decree dated 31.08.2004

dismissed the suit. Aggrieved by the same, the plaintiff filed A.S.No.168 of

2004 before the Sub Court, Tiruchirappalli. By the impugned judgment and

decree dated 20.10.2005, the first appellate court reversed the decision of

the trial court and decreed the suit. Challenging the same, this second

appeal came to be filed.

5. The second appeal was admitted on the following substantial

questions of law:-

“1.Whether the agreement entered into between vendor of the property with previous vendee will give any right to the subsequent https://www.mhc.tn.gov.in/judis

S.A.(MD)No.757 of 2006

purchaser of the remaining area?

2.Whether the vendor of the property can convey the title of the property which she has not possessed?”

6. The learned counsel appearing for the appellant reiterated the

contentions set out in the memorandum of grounds and called upon this

Court to answer the substantial questions of law in favour of the appellant

and allow the appeal by setting aside the impugned judgment and decree

and by restoring the decision of the trial court.

7. Per contra, the learned counsel appearing for the respondent

submitted that the impugned judgment and decree do not call for any

interference.

8. I carefully considered the rival contentions and went through the

evidence on record. The learned counsel appearing for the appellant would

point out that in Ex.A1, the eastern boundary is shown as the house of

Patturoja. His contention is that if Ex.A3 has really come into existence,

the eastern boundary would be shown as 5 feet common lane. The fact that

5 feet common lane has not been mentioned as one of the boundaries shows

that Ex.A3 did not come into force. He would also contend that 'B'

schedule property covers 2 1/4 feet of lane belonging to the appellant. The https://www.mhc.tn.gov.in/judis

S.A.(MD)No.757 of 2006

plaintiff's vendor could not have conveyed the defendant's land in favour of

the plaintiff merely because she had entered into an agreement Ex.A3. The

plaintiff did not examine her vendor to prove that Ex.A3 came into force.

It was only the defendant who examined Lalitha's husband Sundaram on his

side as D.W.2. Though this contention urged by the learned counsel

appearing for the appellant has considerable force, I cannot lose sight of

one fundamental aspect. There is something called urban planning. The

concept of side set back area is an established feature of town planning.

The plaintiff has purchased a ready built house from Lalitha. The defendant

/ appellant herein had also put up a house. As per Ex.A3, the appellant was

to leave 2 1/4 feet on her side, while Lalitha was to set apart 2 3/4 feet on

her side. As a result, there is a 5 feet gap between the two houses. This is

what is called as side set back area. Whenever an applicant approaches the

town planning authority for putting up a house, the plan will be approved

only if the side set back area is provided. If no side set back area is

provided, the plan will not be approved. Thus, virtually Lalitha and the

appellant herein have only upheld the principle of side set back area by

entering into Ex.A3-agreement. Viewed from this perspective, one has to

necessarily sustain the approach of the first appellate court. In this view of

the matter, I answer the substantial questions of law against the appellant.

G.R.SWAMINATHAN.J., https://www.mhc.tn.gov.in/judis

S.A.(MD)No.757 of 2006

rmi

9. The second appeal is dismissed. No costs.

24.09.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The first Additional Subordinate Judge, Trichirappalli.

2.The second Additional District Munsif, Trichirappalli.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.757 of 2006

https://www.mhc.tn.gov.in/judis