Madras High Court
Parvathiammal vs Sivalingam on 28 February, 2022
S.A.(MD)No.552 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.02.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.552 of 2010
1.Parvathiammal
2.Anandan
3.Minor Saravanan ... Appellants
(Minor 3rd appellant is through his mother and
next friend 1st appellant Parvathiammal)
Vs.
1.Sivalingam
2.Shanmuga Sundari
3.Jeya Chithra ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 30.04.2009 passed in A.S.No.95 of 2006
on the file of the Sub Court, Thoothukudi, confirming the judgment and decree
dated 15.02.2006 passed in O.S.No.172 of 2004 by the Additional District
Munsif Court, Thiruchendur.
For Appellants : Mr.C.Dhanaseelan
For Respondents : Mr.M.C.Swamy for R1 & R2
No appearance for R3
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S.A.(MD)No.552 of 2010
JUDGEMENT
The unsuccessful plaintiffs in O.S.No.172 of 2004 on the file of the
Additional District Munsif Court, Thiruchendur are the appellants in this
second appeal. The said suit was filed by them seeking the relief of declaration
and mandatory injunction. According to the plaintiffs, 3rd suit schedule is a
common courtyard belonging to the plaintiffs and the defendants 1 and 2.
Since the first defendant had put up a wall in between the plaintiffs' property
and the suit 3rd schedule, the plaintiffs wanted the same to be removed. The
defendants 1 and 2 filed written statement controverting the plaint averments.
Based on the divergent pleadings, the Trial Court framed the necessary issues.
2.The first plaintiff/Parvathiammal examined herself as P.W.1. Exs.A1 to
A6 were marked on the side of the plaintiffs. The first defendant/Sivalingam
examined himself as D.W.1. Exs.B1 and B2 were marked on the side of the
defendants. An Advocate Commissioner was appointed and his report and plan
were marked as Exs.C1 and C2 and the surveyor's sketch was marked as Ex.C3.
3.After consideration of the evidence on record, the Trial Court by the
impugned judgment and decree dated 15.02.2006 dismissed the suit. Aggrieved
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S.A.(MD)No.552 of 2010
by the same, the plaintiffs filed A.S.No.95 of 2006 before the Sub Court,
Thoothukudi. By the impugned judgment and decree dated 30.04.2009, the
decision of the Trial Court was confirmed and the appeal suit was dismissed.
Challenging the same, this second appeal came to be filed.
4.Though the second appeal was filed way back in the year 2010, only
notice of motion was ordered and it has not been admitted till date. The
learned counsel for the appellants reiterated the contentions set out in the
memorandum of grounds and called upon this Court to admit this second
appeal after framing substantial question of law and take it for disposal later.
5.Per contra, the learned counsel for the contesting respondents
submitted that the impugned judgment and decree do not warrant any
interference.
6.I carefully considered the rival contentions and went through the
evidence on record. The learned counsel for the appellants submitted that the
properties belonging both the parties including suit schedule originally
belonged to a common ancestor. The plaintiffs had purchased their property
under Ex.A2 dated 30.09.1986 from one Sudalai Muthu Pillai and Ulaganatha
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S.A.(MD)No.552 of 2010
Pillai. The vendors who executed Ex.A2 had purchased the property under
Ex.A1 dated 08.08.1973 from one Sivasubramaniya Nadar. The learned
counsel drew my attention to the four boundary description set out in Exs.A1
and A2. The northern boundary is described as common courtyard. It is this
that has been described as suit 3rd schedule. The learned counsel would submit
that this description is consistent with the description set out in Ex.B1 dated
25.10.1952. The contesting defendants also trace their title under Ex.B1, in
which their property has been shown as lying to the south of east-west street
and to the north of common courtyard belonging to the vendor's family. The
learned counsel for the appellant also would emphasize the fact that in Exs.A3
and A4 which are official records, the property in question has been described
as public lane.
7.As rightly pointed out by the learned counsel for the contesting
respondents, if the plaintiffs had been able to demonstrate that the
predecessor-in-title of both parties was a common ancestor, then certainly the
description in Ex.A2 of the northern boundary as a common courtyard would
definitely be binding on the respondents also. But unfortunately the plaintiffs
have not been able to trace their title to a common ancestor. The vendor of the
plaintiffs are Sudalai Muthu Pillai and Ulaganatha Pillai. Their vendor was one
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S.A.(MD)No.552 of 2010
Sivasubramaniya Nadar. The predecessor-in-title of Sivasubramaniya Nadar
was not the predecessor-in-title for the respondents. Since commonality or
common source has not been established, the description of the northern
boundary in Ex.A.2 will not bind the respondents. I do not also agree with the
contention of the learned counsel for the appellants that this description is in
consonance with the description found in Ex.B1. It is true that in Ex.B1, the
southern boundary is mentioned as common courtyard. But then, there is a
significant adjective to that expression. The executant of Ex.B1 stated that
southern boundary is a common courtyard belonging to their vagaiyara (group).
8.The Courts below have also found that the plaintiffs seeking the relief
of mandatory injunction must specifically set out as to when the offending wall
was put up. Those particulars are absent. These are pure issues of fact and
exercising jurisdiction under Section 100 of CPC, I do not want to disturb the
said finding. Be that as it may, I do find that there is some merit in the
contention of the learned counsel for the appellants anchored on Exs.A3 and
A4. In Exs.A3 and A4 as well as in the commissioner's report and plan, there is
material to show that the disputed property is a lane. The plaintiffs came out
with a specific case that the dispute property should be declared as common
courtyard that belongs to the plaintiffs and the defendants 1 and 2. Exs.A3 and
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S.A.(MD)No.552 of 2010
A4 completely undermine this claim. As rightly pointed out by the learned
counsel for the contesting respondents, the plaintiffs having come to the Court
with a specific case must either succeed or fall on that basis. I hold that no
substantial question of law arises for consideration in this second appeal and
the second appeal is dismissed and the decisions of the Courts below are
confirmed.
28.02.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Sub Court,
Thoothukudi.
2.The Additional District Munsif Court,
Tiruchendur.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.552 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.552 of 2010
28.02.2022
https://www.mhc.tn.gov.in/judis
