Madras High Court
Ayirathammal vs Krishnammal on 6 April, 2023
S.A(MD)No.439 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.439 of 2021
and C.M.P(MD)No.5842 of 2021
Ayirathammal .... Appellant/Appellant/Plaintiff
Vs.
1.Krishnammal
2.Seetharaman ...Respondents/Respondents/Defendants
Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure,
against the judgment and decree dated 11.12.2020 passed in A.S.No.106 of
2019 on the file of the Additional Subordiante Court, Tirunelveli
confirminging the judgment and decree dated 03.01.2019 passed in O.S.No.475
of 2011 on the file of the Principal District Munsif Court, Tirunelveli.
For Appellant : Mr.M.S.Suresh Kumar
For Respondents : Mr.V.Sukumar
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of
the courts below. The plaintiff in the suit in O.S.No.475 of 2011 on the file of
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S.A(MD)No.439 of 2021
the Principal District Munsif Court, Tirunelveli, is the appellant herein. The suit
was filed seeking the following reliefs:
a) To declare that the A D north south western wall of the plaintiff's
property as described in the 4th schedule of the plaint is a common wall
belonging to both to the plaintiff and the first defendant;
b) To declare that the plaintiff is exclusively entitled to the vacant land as
described in the 2nd schedule of the plaint as ABCD and for a
consequential permanent injunction restraining the defendants from
interfering in any manner with the plaintiff's peaceful possession and
enjoyment of the plaint 2nd schedule property
c) For a mandatory injunction to direct the first defendant to remove the
eastern north south, side wall of the overhead tank of the first defendant
to the north south length of 5 feet and 1 feet breadth constructed on the
plaint 4th schedule common wall as described as plaint 3rd schedule
constructed by her and as shown as AEFG in the rough plan at the north
eastern corner of the terrace of her house by using the common wall as
the eastern side wall of the overhead tank within a time limit to be fixed
by the court.
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S.A(MD)No.439 of 2021
2. In the forthcoming paragraphs, the parties are described as per their
litigative status in the suit.
3. The defendants, as seen from their written statement, have denied the
allegations of the plaintiff and they have pleaded as follows:
a) It is not correct to state that eastern wall of the defendant is a common
wall belonging to both the plaintiff and the defendants. As seen from the
sale deed of the defendants, it is clear that the east-west measurement is
shown as 21 feet and hence it is false to state that the wall is used as
common wall by both the plaintiff and the defendants. The plaintiff at no
point of time has enjoyed the wall as a common wall and therefore, the
plaintiff has no right to prevent the defendants from enjoying the wall
exclusively.
b) On 23.07.1998, both the plaintiff and the first defendant have entered
into an agreement, which has been marked as Ex.B.1 before the trial court
and under the said agreement, the plaintiff has agreed to leave 1 feet and
the first defendant has agreed to leave 2 feet and both the parties should
not let the rain water or waste water into the space of the other. The
plaintiff has suppressed the same in the suit.
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S.A(MD)No.439 of 2021
c) The plaintiff herself admitted that the cause of action arose more than
13 years ago as the defendants have enjoyed the property for more than
13 years and has prescribed title by way of adverse possession. Therefore,
the plaintiff is ousted form claiming any rights over the property. The
water tank is in existence even in the year 1993 when the defendants
purchased the property. Hence, the suit is barred by limitation.
4. The trial court framed issues including the issue whether the suit is
barred by law of limitation based on the pleadings of the respective parties.
5. Before the trial court, as seen from the deposition of the plaintiff's
witnesses, she has disputed the agreement dated 23.07.1998 reached between
the plaintiff and the defendants namely Ex.B.1. However, the learned counsel
for the appellant/plaintiff on instructions would now submit that the plaintiff is
willing to abide by the terms and conditions of the agreement Ex.B.1 dated
23.07.1998. The said undertaking given by the plaintiff through her counsel is
recorded by this Court.
6. The trial court has answered all the issues framed by it against the
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S.A(MD)No.439 of 2021
plaintiff by dismissing the suit and one of the grounds for dismissal is that the
suit is barred by limitation. The lower Appellate Court namely, the Additional
Sub Court, Tirunelveli in A.S.No.106 of 2019 filed by the plaintiff by its
judgment and decree dated 11.12.2020 also confirmed the findings of the trial
court by dismissing the first appeal. Aggrieved by the concurrent findings of the
courts below, this Second Appeal has been filed.
7. This Court is of the considered view, as seen in the pleadings and
deposition on the side of the plaintiff, it is clear that the plaintiff was aware of
the alleged irregularities committed by the defendants as pleaded in the plaint as
early as in the year 1995 itself when the plaintiff purchased her property. In fact,
there was an exchange of notice in the year 1996 between the parties with
regard to the same cause of action for which the suit was filed. However, the
plaintiff has chosen to file the suit only in the year 2011. Though she may claim
that her husband was bed ridden and that is the reason for the delay, any suit
will have to be filed within the prescribed period of limitation as fixed under the
Limitation Act. The cause of action arose in the suit in the year 1995 itself when
the plaintiff had purchased her property and in the year 1995 itself the very
same irregularities committed by the defendants were noticed and hence, the
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S.A(MD)No.439 of 2021
suit ought to have been filed within a period of 3 years from that date when the
said irregularities were noticed. Since the suit was filed only in the year 2011,
the trial court has rightly dismissed the suit by giving apart from other reasons
on the ground of limitation. The lower Appellate Court has also rightly
confirmed the findings of the trial court by dismissing the first appeal.
However, an undertaking has been given by the appellant/plaintiff that she is
now willing to abide by the terms and conditions of the settlement agreement
reached between the plaintiff and the defendants dated 23.07.1998 (Ex.B.1).
Even though there is no merit in the Second Appeal, on considering the said
undertaking, this Court will have to give an observation that the
respondents/defendants will have to necessarily abide by the terms and
conditions of Ex.B.1, a settlement agreement, reached between the parties,
which has already been accepted by the respondents as seen from the written
statement and their deposition.
8. For the foregoing reasons, since there is no debatable issues of fact or
law required for further consideration by this Court under Section 100 C.P.C,
this Court is inclined to dismiss this Second Appeal. Accordingly, this Second
Appeal is dismissed. No costs. Consequently, connected miscellaneous petition
is closed. However, this Court is making it clear that in view of the undertaking
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S.A(MD)No.439 of 2021
given by the appellant/plaintiff as stated supra, the respondents/ defendants will
also adhere to the settlement agreement dated 23.07.1998 (Ex.B.1) reached
between the parties which is also not disputed by the respondents/defendants in
their written statement as well as in their deposition.
06.04.2023
Index : Yes/No
Internet: Yes/No
CM
To
1.The Additional Subordinate Judge, Tirunelveli
2.The Principal District Munsif, Tirunelveli.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court, Madurai.
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S.A(MD)No.439 of 2021
ABDUL QUDDHOSE, J.
CM
S.A.(MD)No.439 of 2021
and C.M.P(MD)No.5842 of 2021
06.04.2023
https://www.mhc.tn.gov.in/judis
S.A(MD)No.439 of 2021
https://www.mhc.tn.gov.in/judis
