Madras High Court
Nataraja Gurukkal vs Santhna Lakshmi on 3 February, 2022
S.A.No.992 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 03.02.2022
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
Second Appeal No.992 of 2008
Nataraja Gurukkal .. Plaintiff/
Appellant
Vs
Jayalakshmi
1.Santhna Lakshmi
2.Seethaladevi ... Defendants/
Respondents
3.Visalakshi @ Visalatchi
4.Vijayalakshmi
5.Sankari @ Kayathri
6.Deivanayaki .. Plaintiffs/
Respondents
Prayer: Second Appeal is filed against the judgment and decree dated
27.03.2008 made in A.S.No.32 of 2004, on the file of the Additional
District Judge, Pondicherry, in confirming the Judgment and Decree dated
22.10.2003 made in O.S.No.220 of 1998, on the file of the Principal
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S.A.No.992 of 2008
District Munsif, Karaikal.
For Appellant ... Mr.L.Poovendra Perumal
for M/s.Sai Bharath
For Respondents ... Ms.Shanthini for
M/s.R.Karthikeyan for R1&R2
JUDGMENT
The second appeal is preferred against the judgment and decree
27.03.2008 made in A.S.No.32 of 2004, on the file of the Additional
District Judge, Pondicherry, in confirming the Judgment and Decree dated
22.10.2003 made in O.S.No.220 of 1998, on the file of the Principal
District Munsif, Karaikal.
2. The second plaintiff is the appellant herein. For the sake of
convenience, the parties are referred to as before the trial Court. The suit
is for permanent and mandatory injunction.
3. Facts briefly narrated and necessary for the disposal of the
second appeal is as follows:
The suit property in S.No.153/59 measuring 6 Ares and 44 Ca
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S.A.No.992 of 2008
absolutely belongs to Sundaresa Gurukkal. After the demise of
Sundaresa Gurukkal on 05.10.1973, the property was inherited by his
sons, ie., Ramani Gurukkal, Duraisamy Gurukkal and Saminatha
Gurukkal and the patta also stands in their name. The patta clinchingly
proves that the suit property was owned by the plaintiffs and their
brothers. The plaintiffs and their brothers are the co-sharers of the suit
property and the backyard of the suit property is undivided. While so, in
the undivided suit property, the sister-in-law of the plaintiffs, viz., the
defendant herein, namely, the wife of Ramani Gurukkal, has constructed
a bathroom and a latrine without the knowledge and consent of the
plaintiffs. The defendant is in permissive possession of the suit property.
Therefore, the plaintiffs filed a complaint before the Tirunallar Police
Station. However, the defendant has proceeded with the construction and
hence, the plaintiffs filed the suit for the aforesaid relief.
4. It is the case of the defendant before the trial Court that, the
construction was put up only in the property belong to Tirunallar
Commune Panchayat and partly belong to Sri Darbaranyaswamy
Devasthanam. The defendant has already completed the construction.
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S.A.No.992 of 2008
The property is also wrongly described and the piece of land is
exclusively possessed by the defendant. The suit is barred for non joinder
of necessary party, namely, the Devasthanam and the panchayat and
hence, the suit is liable to the dismissed.
5. Before the trial Court, on the side of the plaintiffs, P.Ws.1 to 3
have been examined and as many as 4 documents were exhibited as
Ex.A1 to Ex.A4. On the side of the defendants, D.Ws.1 to 6 have been
examined and Ex.B1 to Ex.B20 were marked as documents and Exs.X1
to X9 were exhibited as third party documents and Exs.C1 and C2 are the
Court exhibits, namely, report of the Commissioner and the survey
sketch.
6. The trial Court, on considering the oral and documentary
evidence, came to the conclusion that the defendant has put up
construction in the common area and the plaintiffs have not proved their
case by adducing necessary evidence, dismissed the suit. Challenging the
same, the plaintiffs have filed the appeal before the lower Appellate
Court. On considering the oral and documentary evidence, the lower
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S.A.No.992 of 2008
appellate Court dismissed the appeal thereby confirming the judgment
and decree of the trial Court. As against the same, the defendants are
before this Court with this second appeal.
7. In the second appeal, the following substantial questions of law
were framed by the appellants:
“(i) Are not the Courts below in error in dismissing
the suit of the plaintiffs, when the plaintiffs established
the case for removal of the offending construction made
by the defendants in common undivided property?
(ii) Are not Courts below in error in placing the
burden on the plaintiffs when it was the admitted fact by
the defendants that the property in S.No.53/59 was a
common property and when the defendants had not
specifically pleaded as to the extents of property over
which they claimed the exclusive right? ”
8. Heard the learned counsel for the appellant and the learned
counsel for the respondents.
9. It is seen that the trial Court has observed that the defendants
disputed the title of the plaintiffs and the burden lies with the plaintiffs to
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S.A.No.992 of 2008
prove their title over the suit property. Every co-owner has got right to
use the property in the way beneficial to them without causing any injury
to the other co-sharers. It is not the case of the plaintiffs that the alleged
construction made by the defendant was materially interfered with the use
of the property by the other co-owners or their rights or cause damage or
injury to the common property. It is also observed by the trial Court that
some part of the construction was only done in the lands, which are not
belong to the plaintiffs. As such the plaintiffs could not claim the relief as
prayed for and accordingly, the trial Court dismissed the suit.
10. In appeal, the lower appellate Court has observed that the suit
property was undivided one and in a small portion of the suit survey
number, the defendants constructed a bathroom and a latrine and the
major portion is in S.No.159/62 and hence, the act of taking possession of
an area less than the share or equal to the share of the defendant is
permissible and the said construction is in backyard only, which is meant
for construction of bathroom and latrine. The total extent is 6 Ares 44
Ca. However, the constructed area is 9.4 Ca., which is less than the share
of Ramani Gurukkal. Accordingly, the lower appellate Court also
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S.A.No.992 of 2008
dismissed the appeal thereby confirming the findings of the Court below.
Thus, such concurrent finding does not require interference, as there is
nothing on record to show that it was perverse, being based on no
evidence or contrary to the evidence on record.
11. In view of the above, there is no ground to interfere with the
impugned judgment and decree. Accordingly, the second appeal is
dismissed.
03.02.2022
Index : Yes/No
Internet : Yes
RR
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S.A.No.992 of 2008
J.NISHA BANU, J.
RR
To
1. The Additional District Judge, Pondicherry
2. The Principal District Munsif, Karaikal.
3. V.R. Section, High Court, Madras.
S.A.No.992 of 2008
03.02.2022
https://www.mhc.tn.gov.in/judis
