Madras High Court
Sakunthala vs Sugumar on 14 June, 2022
S.A(MD).No.67 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.06.2022
CORAM: JUSTICE N.SESHASAYEE
S.A(MD).No.67 of 2011
and M.P(MD)No.1 of 2011
1.Sakunthala
2.Saraswathi .... Appellants/Appellants/Defendants
Vs.
Sugumar ... Respondent/Respondent/Plaintiff
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 26.08.2009 in A.S.No.155
of 2008 on the file of the II Additional Sub Judge, Trichirappalli,
confirming the judgement and decree dated 29.08.2007 in O.S.No.179 of
1997 on the file of the District Munsiff, Musiri.
For Appellants : Mr.K.Govindarajan
For Respondent : Mr.S.Ramesh
JUDGMENT
The defendants, who have lost successively in a suit for declaration of title
and also for mandatory injunction to remove certain obstructions in 'C'
schedule-property in O.S.No.179 of 1997, and also in A.S.No.155 of 2008
before the first appellate Court are the appellants herein. For narrative
convenience, the parties are referred to as per their rank before the trial
court.
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S.A(MD).No.67 of 2011
2. The dispute is over a narrow strip of land with a width of about 3' feet.
This lane lies next adjacent to the western half of the plaintiff's property,
further west lies the property of the defendants. The case of the plaintiff is
that he had obtained title to his property Vide Ext.A-1 partition deed, that
the western boundary of his property lies about 1 ½ feet beyond the western
wall his residential building. He has also opened a door into this lane. The
grievance of the plaintiff is that the defendants are putting up what he terms
as a common lane, and seeks declaration that the said lane is a common
lane, and also seeks mandatory injunction for removal of certain structures
such as drainage, washing stone etc which the defendants have put up there.
The defendants in their written statement disputed the same.
3.1 The dispute went to trial, during which both sides adduced oral and
documentary evidence. Besides, the trial Court has also appointed a
Commissioner whose report and plans have been marked as Ext. C.1 and
Ext.C.2.
3.2 Of the documents produced, Ext.A.1 is a partition deed within the
family of the plaintiff under which he was allotted a portion about the south
of the property dealt with under the said document. The property to its
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S.A(MD).No.67 of 2011
immediate north was allotted to one of the brothers of the plaintiff. In the
context of the disputed lane is concerned, the plaintiff has opened a door in
his western wall to have access to the C-Schedule property and through it to
the main road on the north. This is denoted in Ext.C.2, the Commissioner's
plan and backed by Ext.C.1, the Commissioners report. The defendants did
not offer any objection to the Commissioner's report.
3.3 This apart, the plaintiff also relies on Ext. A.3 and Ext. A.4. Of the two
Ext. A.3 is stated to be an agreement dated 30.12.1975. It is executed by one
Karuppannan Chettiyar. The defendants are the heirs of this Karuppannan
Chettiar. In Ext.A.3, Karuppannan Chettiyar makes a categorical statement
that there is an extent of about 1 ½ feet left vacant next adjacent to the
western wall of the plaintiff for discharging eves water of the plaintiff's
western roof, and that he (Karuppan Chettiar) had also set apart 1 ½ feet
abutting his eastern wall, and this 3' feet lane is left for common usage.
After the demise of Karuppannan Chettiyar, a fresh agreement came to be
executed by the defendants, the heirs of Karuppannan Chettiyar Vide Ext.A.
4 dated 18.11.1989.
4. Acting on the aforesaid documents, the trial Court decreed the suit. In an
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S.A(MD).No.67 of 2011
appeal preferred by the defendants in A.S.No.155 of 2008 before the learned
II Additional Sub Court, Trichy, the First Appellate Court chose to concur
with the finding and the verdict of the trial court, and dismissed the appeal.
Hence, this Second Appeal at the instance of the defendants.
5. This Second Appeal is admitted for considering the following substantial
questions of law:
i)Whether the Courts below have rendered a perverse
finding that the suit lane is a common lane relying on the
recitals found in Ext. A.3 and Ext. A.4, while holding that
the said documents have not been proved?
ii) Whether the courts below have committed an error in
casting the burden on the defendants to prove the lane to be
their separate lane, when the plaintiff has not adduced
sufficient evidence to prove that the suit lane is a common
lane in which he also has got a right?
6.1 Heard Mr.K.Govindarajan, learned counsel appearing for the appellants/
defendants and Mr.S.Ramesh, learned counsel appearing for the respondent/
plaintiff. The learned counsel for the appellants would submit that the
defendants disputed Ext.A.3 and Ext.A.4 and continues to believe that in
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S.A(MD).No.67 of 2011
law they have not been proved. He submitted that to bring an end to this
agonizing litigation, the defendants agrees to the genuineness of these
documents, and added that the defendants would not object to the plaintiff
claiming his half of the vacant site abutting his western wall, and the
defendants would enjoy the remaining half to its further west, which abuts
the eastern wall of the defendants' property. He also submitted that the
defendants have put up their drainage in the portion belonging to the
plaintiff and also have put their washing stone and certain other
constructions and undertook that the defendants would remove them within
a stipulated period. To a specific question from the Court, the learned
counsel submitted that this could be done within a period of six weeks.
6.2 The learned counsel for the plaintiff would agree to the proposal on the
instructions, and submitted that the plaintiff would confine his claim to the
eastern half of the disputed 'C' schedule property. Both the statements are
recorded.
7. Even though this Court has taken a view that the Court may not act on the
basis of the undertaking or memo of the Advocates when deciding the
substantial rights of the parties in Abdul Rashid Sahib Vs Ramachandran
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S.A(MD).No.67 of 2011
& another [2022 SCC online Mad 2623 : (2022) 3 CTC 667], yet this Court
now acts not exclusively on the statement made at the Bar, but, acts on
Ext.A.3 and Ext.A.4 which the courts below had relied on. The dispute is
over a common lane to the creation of which both the sides have contributed
equally as could be seen from Exts.A-3 and Ext.A-4. The dispute is in its
silver jubilee year. The parties have found that the lasting solution to end
their feud is to revert to a position that was prior to Ext.A-3, by each side
taking their respective half of 'C' schedule property.
8. Given the change of circumstances, this Court necessarily has to mould
the relief and holds that the plaintiff is entitled to the eastern half of the 'C'
Schedule property which lies to the immediate west of the plaintiff's house,
and consequently the defendants are directed to remove the structures that
have been put up by them in the said property.
9. This Second Appeal is partially allowed and the decree of the First
Appellate Court in in A.S.No.155 of 2008 on the file of the II Additional
Sub Judge, Trichirappalli, is modified to the extent herein above indicated.
The defendants are directed to remove all the constructions that they have
made in the eastern half of 'C' schedule property within a period of six
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S.A(MD).No.67 of 2011
weeks. No costs. Consequently, connected miscellaneous petition is closed.
10. Execution of a decree is an option open to the decree-holder, when the
decree is not satisfied by the judgment-debtor. But, Court passes decrees
with a view to bind those against whom they are passed, no matter the
decree holder exercise their option of executing it. The one whom a decree
binds is required to submit to the decree and this Court has the authority in
law to ensure that the decree is obeyed. Therefore, rather than driving the
plaintiff to a cumbersome process of execution proceedings, this Court
takes an initiative to ensure that the decree it has now passed is obeyed.
11. This Second Appeal is therefore, directed to be listed on 02.08.2022
under the caption 'For Reporting Compliance'.
14.06.2022
Index : Yes/No
Internet: Yes/No
cm
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S.A(MD).No.67 of 2011
To
1.The II Additional Sub Judge, Trichirappalli.
2.The District Munsif, Musiri.
3.The Section Officer,
VR Section,Madurai Bench of Madras High Court, Madurai.
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S.A(MD).No.67 of 2011
N. SESHASAYEE, J.,
CM
S.A(MD).No.67 of 2011
and M.P(MD)No.1 of 2011
14.06.2022
https://www.mhc.tn.gov.in/judis
