Madras High Court
Jeyalakshmi vs Annadhanam Chettiar on 2 March, 2022
S.A.(MD)No.227 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.227 of 2010
1.Jeyalakshmi
2.Gunasekaran ... Appellants / Appellants / Defendants
-Vs-
1.Annadhanam Chettiar
2.Nagarathinam Ammal
3.Mahendran
4.Jagadeesan
5.Vijayakumar
6.Baskaran
7.Sakthi @ Sathiya Narayanan
8.Ramanathan
9.Seethalakshmi
10.Manoharan
11.Nagarajan
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S.A.(MD)No.227 of 2010
12.Krishnamoorthy
13.Ramesh
14.Chandrasekaran
15.Prema
16.Lakshmi Bai
17.Renganayagi @ Sathiya Bama
18.Vaantha
19.Santha
20.Raja
21.Babu @ Chandramohan
22.Ranjithammal
23.Nagaraj
24.Bharathy
25.Thulasiram
26.Jothi
27.Lakshmi Ananthaki
28.Nalini
29.Athmabai ... Respondents / Respondents / Plaintiffs
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decreetal order passed by the Principal Sub
Judge, Dindigul, dated 22.10.2007 made in A.S.No.414 of 2004, confirming
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S.A.(MD)No.227 of 2010
the judgment ad decreetal order made in O.S.No.2162 of 1988, dated
24.02.1999 by the learned II Additional District Munsif, Dindigul.
For Appellant : Mr.S.Deenadhayalan
For R1, R3 to
R7 & R11 to R14 : Mr.M.R.Srinivasan
JUDGMENT
The defendants in O.S.No.2162 of 1988 on the file of the second
Additional District Munsif, Dindigul are the appellants in this second
appeal.
2. The suit was filed by the respondents herein seeking a number of
reliefs. The appellants herein filed written statement controverting the
plaint averments. Based on the divergent pleadings, the trial court framed
as many as six issues. The 1st plaintiff and the 6th plaintiff examined
themselves as P.W.1 and P.W.2 and Ex.A1 to Ex.A12 were marked. The
second defendant examined himself as D.W.1 and one Venkitachalam was
examined as D.W.2. Ex.B1 to Ex.B12 were marked. An Advocate
Commissioner was appointed and his report and plan were marked as court
exhibits 1 & 2. After consideration of the evidence on record, the trial court
by judgment and decree dated 24.02.1999 negatived most of the reliefs
sought for by the plaintiffs. The primary relief granted to the plaintiffs was
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S.A.(MD)No.227 of 2010
that the defendants should not put up windows or ventilators in the eastern
side wall of the defendant's property. Aggrieved by the same, the
defendants filed A.S.No.414 of 2004 on the file of the Principal Sub Court,
Dindigul. By the impugned judgment and decree dated 22.10.2007, the first
appellate court confirmed the decision of the trial court and dismissed the
appeal. Aggrieved by the same, the second appeal has been filed. The
second appeal was admitted on the following substantial question of law:-
“ Whether the suit relief of permanent injunction as against the owner of
the property is maintainable under Section 18, 33 and 35 of Easement Act,
1882? ”
3. The learned counsel appearing for the appellants at the outset
submitted that he would not press this appeal insofar as the question of
opening the windows. He would confine his relief to granting protection in
respect of the ventilators. It has already been opened on the eastern side of
the defendant's property. The said submission made by the counsel is
recorded. It is seen that the property of the plaintiffs is on the eastern side,
while the defendant's property is on the western side. A common pathway
runs in between. The only question that arises for consideration is whether
the defendants can put up the ventilators on the eastern wall that runs north-
south on the eastern side. It is not as if the construction put up by the
defendants is immediately abutting the plaintiffs' property. A pathway that
measures 4.8 feet to 6 feet width is running in between. The defendants
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S.A.(MD)No.227 of 2010
have not committed any encroachment on the plaintiff's property. They
have opened the ventilators on the construction put up by them. By
opening the ventilators, the privacy of the plaintiffs is in no way invaded.
4. As rightly pointed out by the learned counsel appearing for the
appellants, in the plaint, no such pleading is found. When the plaintiffs
have not themselves pleaded invasion of privacy, the courts below could
not have granted the relief of permanent injunction against the defendants
from opening the ventilators. Since the appellants themselves have not
pressed their prayer as regards windows, the said portion of the judgment
and decree passed by the courts below is confirmed. Interference is made
in respect of the ventilators alone. The ventilators already opened by the
appellants can very well remain. The substantial question of law is
answered in favour of the appellants. The impugned judgment and decree
are modified accordingly.
5. The second appeal is partly allowed. No cost.
02.03.2022
Internet : Yes/No
Index : Yes/No
rmi
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S.A.(MD)No.227 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The Principal Sub Judge, Dindigul.
2.The II Additional District Munsif, Dindigul.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
Judgment made in
S.A.(MD)No.227 of 2010
02.03.2022
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