Madras High Court
Ravichandran vs Kalandar Moideen on 11 April, 2022
1 S.A.(MD)No.414 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.414 of 2010 and
C.M.P.(MD)No.8744 of 2018
Ravichandran ... Appellant / Appellant /
Defendant
Vs.
Kalandar Moideen,
Rep. By power agent,
Raja Mohamed ... Respondent / Respondent /
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the decree and judgment dated 30.09.2009
in A.S.No.21 of 2007 on the file of the Sub Court, Pudukkottai,
confirming the judgment and decree dated 26.04.2006 in
O.S.No.141 of 2000 on the file of the District Munsif,
Aranthangi.
For Appellant : Mr.R.Sundar Srinivasan
For Respondent : Mr.K.Balasundharam
***
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2 S.A.(MD)No.414 OF 2010
JUDGMENT
Heard the learned counsel on either side.
2. The defendant in O.S.No.141 of 2000 on the file of
the District Munsif, Aranthangi, is the appellant in this second
appeal.
3. The suit was filed for the relief of declaration and
permanent injunction. The suit property essentially concerns
the wall that is standing in between the plaintiff's shop and
the defendant's shop. According to the plaintiff, the wall is
having a width of 1½ feet and that it exclusively belongs to
him. Relief was also sought in respect of the suit second
schedule. It is a space underneath the suit wall. The defendant
filed written statement controverting the plaint averments.
Based on the divergent pleadings, the trial Court framed
necessary issues. The plaintiff's power agent Raja Mahammed
examined himself as P.W.1 and two other witnesses were
examined on his side. Ex.A.1 to Ex.A.36 were marked. The
defendant Ravichandran examined himself as D.W.1 and two
other witnesses were examined on his side. Ex.B.1 to Ex.B.30
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were marked. An Advocate Commissioner was appointed and
his report and plan including survey sketch were marked as
Ex.C.1 to Ex.C.7. After considering the evidence on record, the
trial Court by judgment and decree dated 26.04.2006 decreed
the suit as prayed for. Aggrieved by the same, the defendant
filed A.S.No.21 of 2007 before the Sub Court, Pudukkottai. By
the impugned judgment and decree dated 30.09.2009, the first
appellate Court confirmed the decision of the trial Court and
dismissed the appeal. Aggrieved by the same, the defendant
filed this second appeal.
4. The second appeal was admitted on 30.08.2012 on
the following substantial questions of law:-
“ 1. Whether the Courts below are correct
in shifting the burden of proof on the defendant /
appellant vis-a-vis the admission in the annexure of
Ex.A.2 providing breadth of respondent's western
wall as 9” and whether the Courts below are
legally justified in decreeing the suit 1st item based
on no evidence?
2. Whether the lower appellate Court has
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committed grave error and irregularity in deciding
the case solely based on the plan filed by the
respondent along with his written argument
without even referring to plaint plan,
commissioner report and plan and exhibits
available in the suit?”
5. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and filed his notes of arguments. He called upon this
Court to answer the substantial questions of law in favour of
the appellant and set aside the impugned judgment and
decree and dismiss the suit in toto.
6. Per contra, the learned counsel appearing for the
respondent submitted that no substantial question of law is
involved in this appeal.
1. I carefully considered the rival contentions and went
through the evidence on record.
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8. Though the suit schedule pertains two items, the
case on hand turns essentially around the suit wall. The
question that arises for consideration is whether the suit wall
exclusively belongs to the plaintiff or whether it is a common
wall or whether the plaintiff is entitled only to 9 inches from
his side. The stand of the defendant is that the plaintiff's wall
is a very old one and is a mud wall. The plaintiff's wall actually
measures only 9 inches. The defendant's wall also measures 9
inches and thus the suit wall is not a single entity but it
comprises two. The plaintiff is obliged to prove his case. He
anchored his entire case on Ex.A.2 (ie.) inam settlement deed
dated 21.09.1974 executed by his father. It is not as if the
plaintiff's father owned the property ancestrally. He had
purchased it under two documents, namely, Ex.A.1 and Ex.B.7.
In Ex.A.1, no measurements have been set out. However, in
Ex.B.7 measurements have been set out. The property sold to
the plaintiff's father under Ex.B.7 measures 12½ feet
east-west and the wall in question measures only 9 inches.
Ex.B.27 is the annexure to Ex.A.2. In Ex.B.27, the width of the wall has
been specifically mentioned as 9 inches. These two measurements set out
in the plaintiff's own parent documents clearly belie
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his case that the suit wall measuring 1½ feet exclusively
belongs to him. The trial Court erred in casting the entire
burden of proof on the defendant. The first appellate Court
has not at all dealt with any aspect pleaded by the defendant. I
therefore answer the substantial questions of law in favour of
the appellant.
9. The impugned judgment and decree are set aside.
At the same time, the suit filed by the plaintiff cannot be
dismissed in toto. The plaintiff is given declaration and
injunction in respect of 9 inches of the suit first schedule wall.
The judgment and decree passed by the Courts below are
modified as regards the suit second schedule. The title
documents of the plaintiff indicate that he is entitled to only
31 feet north-south. He has not produced any document or
evidence to prove that he is entitled to 93 feet north-south in
the suit second schedule. Therefore, this portion of the relief
granted to the plaintiff in respect of the suit second schedule
is set aside.
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10. This second appeal is partly allowed on these
terms. No costs. Consequently, connected miscellaneous
petition is closed.
11.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
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.
To:
1. The Sub Judge,
Pudukkottai.
2. The District Munsif,
Aranthangi.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.414 of 2010
11.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
