Madras High Court
Mymoon Beevi vs Parithal Sulbihar on 22 April, 2022
1 S.A.(MD)Nos.740 & 741 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.740 & 741 of 2010
(i) in S.A.(MD)No.740 of 2010
1. Mymoon Beevi
2. Mohammed Rabeek
3. Sakla
4. Hussain Rahuman
5. Abdul Nizam
6. Aaral
7. Mumtaj ... Appellants / Appellants /
Defendants 2 to 8
Vs.
Parithal Sulbihar ... Respondent / Respondent /
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree of the lower
appellate Court dated 06.01.2010 made in A.S.No.9 of
2009 on the file of the Principal Subordinate Judge,
Tirunelveli, confirming the Judgment and Decree of the
trial Court dated 06.08.2008 made in O.S.No.368 of 1994
https://www.mhc.tn.gov.in/judis
1/12
2 S.A.(MD)Nos.740 & 741 OF 2010
on the file of the Principal District Munsif, Tirunelveli and
to allow the second appeal.
For Appellants : Mr.A.Arumugam,
for M/s.Ajmal Associates.
For Respondent : Mr.Ananth C.Rajesh,
for Mr.M.S.Jawaharlal.
***
(i) in S.A.(MD)No.741 of 2010
1. Mymoon Beevi
2. Mohammed Rabeek
3. Sakla
4. Hussain Rahuman
5. Jakanarah
6. Mumtaj ... Appellants / Appellants /
Plaintiffs
Vs.
1. Parithal Sulbihar
2. A.Nallamuthu
3. Mummy Fathima
4. Abdul Nizam
5. Mariyam Beevi ... Respondents /
Respondents 1 to 4 & 7 /
Defendants 1,2,4,5 & 7
https://www.mhc.tn.gov.in/judis
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree of the lower
appellate Court dated 06.01.2010 made in A.S.No.11 of
2009 on the file of the Principal Subordinate Judge,
Tirunelveli, confirming the Judgment and Decree of the
trial Court dated 06.08.2008 made in O.S.No.367 of 2001
on the file of the Principal District Munsif, Tirunelveli and
to allow the second appeal.
For Appellants : Mr.A.Arumugam,
for M/s.Ajmal Associates.
For R-1 : Mr.Ananth C.Rajesh,
for Mr.M.S.Jawaharlal.
For R-3 & R-5 : Mr.M.Mohamed Sherfudeen,
for Mr.A.Hajamohideen.
For R-2 : No appearance.
***
COMMON JUDGMENT
These two second appeals are interconnected.
O.S.No.368 of 1994 was filed by the first respondent
herein, namely, Parithal Sulbihar on the file of the III
Additional District Munsif, Tirunelveli, seeking the
following reliefs :-
https://www.mhc.tn.gov.in/judis
“(a) for a permanent injunction
restraining the defendants 2 to 8 their men and
agents from putting up any construction
encroaching upon the plaintiff's exercised of the
right of easements to go over to the north of A B
A1 B1 wall through the access E in the plan or
touching the wall A B A1 B1 or resting upon it.
(b) for a mandatory injunction directing
the defendants to remove the offending structure
touching the A B A1 B1 wall between the points G
H in the plan and J shown in the plan. ”
2. O.S.No.367 of 2001 was filed by the appellants
herein for declaration that the suit A B wall is common to
both the parties and for consequential reliefs of
permanent injunction and mandatory injunction. Both the
suits were originally dismissed on 03.08.2004. Aggrieved
by the same, both the parties filed A.S.No.189 of 2004 and
A.S.No.82 of 2005. They were disposed of on 05.08.2005
and the decision of the trial was set aside and the matters
were remitted to the file of the trial Court. On the side of
https://www.mhc.tn.gov.in/judis
the plaintiffs, five witnesses were examined and Ex.A.1 to
Ex.A.18 were marked. On the side of the defendants, two
witnesses were examined and Ex.B.1 to Ex.B.35 were
marked. The reports and plans of the Advocate
Commissioner were marked as Ex.C.1 to Ex.C.6. After
consideration of the evidence on record, by judgment and
decree dated 06.08.2008, O.S.No.368 of 1994 was partly
decreed, while O.S.No.367 of 2001 was dismissed. The
trial Court decreed that the suit wall A B A1 B1 belongs to
the plaintiffs and that the first respondent herein has a
right to whitewash and maintain the same. The appellants
herein were also restrained from putting up new
construction beyond 49 feet north-south. The
constructions touching A B wall as indicated in Ex.C.4 plan
were ordered to be removed. Aggrieved by the same, the
appellants herein filed A.S.No.9 of 2009 and A.S.No.11 of
2009 before the Principal Sub Court, Tirunelveli. By the
impugned judgment and decree dated 06.01.2010, the
decision of the trial Court was confirmed and both the
appeals were dismissed. Challenging the same, these
second appeals came to be filed.
https://www.mhc.tn.gov.in/judis
3. S.A.(MD)No.740 of 2010 arises out of O.S.
No.368 of 1994, while S.A.(MD)No.741 of 2010 arises out
O.S.No.367 of 2001.
4. Though the second appeals were filed in the
year 2010, only notice was ordered and they have not
been admitted till date.
5. The learned counsel appearing for the
appellants reiterated all the contentions set out in the
memorandum of grounds. He also filed written notes. The
learned counsel called upon this court to frame substantial
questions of law and admit the second appeal and then
take them for disposal. After reiterating all the contentions
set out in the gist of arguments and written notes, the
learned counsel called upon this Court to interfere with
the impugned judgments and decrees.
6. Per contra, the learned counsel appearing for
the respondents submitted that the impugned judgments
and decrees do not call for any interference.
https://www.mhc.tn.gov.in/judis
7. I carefully considered the rival contentions and
went through the evidence on record.
8. The learned counsel appearing for the
appellants would point out that the first respondent herein
has not been consistent. While in O.S.No.368 of 1994,
right of easement was sought over the area lying to the
north of the suit wall, in the written statement filed in
O.S.No.367 of 2001, the first respondent claimed title.
These two claims are clearly contradictory to each other.
The first respondent herein is having the property to the
south of the suit wall. Even according to the first
respondent, she owns 13 feet north-south as per Ex.B.13.
The property to the north thereafter belongs to the
appellants herein. By claiming easement right, the first
respondent herein had admitted that what is lying to the
north of the suit wall is the property of the appellants
herein. He would further point out that while the
appellants herein are the plaintiffs in one suit, the first
respondent herein is the plaintiff in another suit. In fact
https://www.mhc.tn.gov.in/judis
the first respondent herein first filed suit. The specific
stand of the first respondent is that the suit wall is her
wall. Therefore, the burden lay primarily on her.
According to the learned counsel, the first respondent had
miserably failed to prove her claim. He also commented
that the report of the Advocate Commissioner is
unhelpful. He would point out that apart from the
appellants, there are quite a few others who are in
occupation of the northern side. The first respondent
herein had not impleaded them. Therefore, the suit has to
fail for non-joinder of necessary parties. He would also
point out that the relief of the mandatory injunction has
been sought for, but the details have not been furnished.
The learned counsel would point out that even if the Court
comes to the conclusion that the appellants have not
proved their case in O.S.No.367 of 2001, that cannot
automatically run in decreeing of the suit filed by the first
respondent in her favour.
9. Though the suit filed by the first respondent is
earlier in point of time, the fact remains that the
https://www.mhc.tn.gov.in/judis
appellants filed a comprehensive suit by including
declaratory prayer. The appellants have marked their title
documents (Ex.A.1, Ex.A.2 and Ex.A.3). Ex.A.2 is the sale
deed standing in the name of Muthulakshmi. The said
Muthulakshmi sold her property in favour of Sahul
Hameed, husband of the first plaintiff under Ex.A.1 dated
13.02.1974. A perusal of the two documents would show
that the property purchased by the appellants measures
17½ carpentor cubic feet north-south on the western side;
this is equivalent to 48.12 feet. In other words, the
appellants cannot have any claim beyond the said 48.12
feet on the southern side. Ex.C.6 is the last plan of the
Advocate Commissioner drawn on 07.04.2006. It can be
seen therefrom that the property of the appellants is
bounded on the north by Pitchuvana Street. In fact in
Ex.A.1 also, the northern boundary is mentioned as
east-west street. In the western side also, there is a
north-south common path way. The property of the first
respondent has been shown as A B C D. C D is the suit
wall. The distance between D point and northern most end
of the appellants on the western side measures 52.9 feet.
https://www.mhc.tn.gov.in/judis
That is why, the Courts below rightly came to the
conclusion that the appellants ought not to put up any
construction beyond their north-south dimension of 49
feet on the western side. The Courts below have carefully
analyzed the measurements set out in the respective
documents of both the parties and also decided the suits
with reference to the Advocate Commissioner's reports
and plans. No substantial question of law arises for
consideration.
10. These second appeals are dismissed. No
costs.
22.04.2022
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.
https://www.mhc.tn.gov.in/judis
To:
1. The Principal Subordinate Judge,
Tirunelveli.
2. The Principal District Munsif,
Tirunelveli.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.740 & 741 of 2010
22.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
