Madras High Court
Karthigeyan ...Defendant / vs Kumaravel ...Plaintiff / on 17 June, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.06.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.13 of 2010
and
M.P.No.1 of 2010
Karthigeyan ...Defendant /Appellant / Appellant
Vs
Kumaravel ...Plaintiff / Respondent / Respondent
The Second Appeal filed under Section 100 of CPC, to set aside the
judgment and decree dated 31.10.2007 made in O.S.No.73 of 2001 on the
file of the District Munsif -cum- Judicial Magistrate, Arcot as the same
being confirmed in A.S.No.1 of 2008 by the Sub Court, Ranipet, Vellore by
the judgment and decree dated 30.07.2009.
For Appellant : Mr.V.Manohar
For Respondent : No appearance
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2
JUDGMENT
Heard learned counsel for the appellant.
2.The Appeal has not yet been admitted. However, notice had been
directed to the respondent and notice had been served. The name of the
respondent is also printed in the cause list. There is no appearance.
However, let me not hold the Second Appeal any further on the board of this
Court.
3.The defendant in O.S.No.73 of 2001, on the file of the District
Munsif – cum – Judicial Magistrate, Arcot is the appellant herein. The
respondent had filed the suit with respect to a small pathway measuring two
feet in breadth and twenty five feet in length on the eastern side of his
house, seeking permanent injunction restraining the appellant herein from
interfering with peaceful possession of the said two feet strip of land. That
piece of property was given as B-schedule to the plaint.
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4.The appellant's property was to the east of the said strip of land.
This would indicate that the property which was contested and for which
injunction was sought lay between the properties of the respondent/plaintiff
and the appellant / defendant.
5.It is the contention of the respondent / plaintiff that he had
purchased his property including the said two feet strip of land, and as
vendor in turn obtained title by way of koorchit. On the other hand, it the
contention of the appellant / defendant that he had purchased his property,
which according to him also included that two feet strip of land through
Court auction.
6.One factor which had played on the mind of the Trial Court was the
report of the Advocate Commissioner, who stated that the property of the
plaintiff measured 50 feet and if that be so, it should also include the two
feet strip of land. The First Appellate Court, as a fact found that over the
two feet strip of land, the plaintiff had built his windows in his house and
the window shades would project out and therefore, if the defendant were to
put up any construction in the nature of a wall, that would be an
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encroachment of the easementry right and would affect the easementry right
and on that basis the First Appellate Court had confirmed the decree
granting permanent injunction to the plaintiff / respondent herein.
7.Even though notice had been directed and learned counsel for the
appellant had argued stating that there are substantial questions of law
which arise, I am not inclined to accept that particular view. But let me
mould the relief in the following manner.
8.The contentious portion of the land is a narrow strip of land
measuring two feet between the property of the plaintiff and the property of
the defendant.
9.It must be kept in mind that the respondent herein was the plaintiff
in the suit and the appellant was the defendant in the suit. Let me retain that
nomenclature as plaintiff and the defendant.
10.The plaintiff had filed the suit for injunction alone restraining the
defendant from putting up any construction, more particularly in the nature
of wall in the said two feet strip of land. If at all, the plaintiff claims title
over the said two strip of land, then the plaintiff should have also included
the relief of declaration and then should have sought for injunction as a
consequential relief. The First Appellate Court had gone on a tangential line
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by examining the issue of easement. When that aspect was not put up by
either one of the two parties. The injunction which now prevails in form of
the plaintiff is not to interfere with the plaintiff's possession of the two feet
strip of land.
11.However, I would modify the said decree and retain the right of the
defendant to seek declaration, if at all the schedule in his sale deed through
Court auction and the lay of the land measured in actual terms also includes
the two feet of land, since both the Courts below have granted an injunction
on different reasonings, to still file a suit for declaration that he is entitled
to put up a wall without interfering with the right of the plaintiff. It all
depends on the basic fact of actual measurement of the lay of the land
namely, the property of the plaintiff and the property of the defendant and to
whose side the two feet falls.
12.Unfortunately, one round of ligation up to this Court has not
determined that particular fact. The Trial Court had further extended the
jurisdiction granted to it by directing that the defendant should not even put
up any construction and if at all any construction is put up, it should be
removed. That finding cannot not stand, without there bing a declaration of
title sought, adjudicated and granted in manner known to law.
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13.Viewed from that particular angle, even though I am not disturbing
the decree granted for permanent injunction I hold the decree would not
stand in the way of appellant / defendant from exercising his right after
taking correct measurements of the land and if it is extends to that particular
two feet strip of land, to institute necessary suit for declaration of title. I
would leave it open to the defendant to workout his remedies in the
aforesaid manner.
14.With the above observations, the Second Appeal is dismissed. No
order as to costs. Consequently, the connected Civil Miscellaneous Petition
is closed.
17.06.2022
smv
Index:Yes/No
Internet:Yes/No
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To
1.The Sub Court, Ranipet, Vellore.
2. District Munsif -cum- Judicial Magistrate, Arcot.
3.The Section Officer, VR Section, Madras High Court.
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C.V.KARTHIKEYAN.,J
smv
S.A.No.13 of 2010
17.06.2022
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