Madras High Court
Subramania Mudaliar (Died) vs M.Natarajan on 19 April, 2023
S.A.No.147 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2023
CORAM
THE HONOURABLE JUSTICE Mr.V.LAKSHMINARAYANAN
S.A.No.147 of 2009
1.Subramania Mudaliar (died)
2.Natarajan
3.Usha
4.Thirunavukkarasu
5.Punitha ...Appellants.
(Appellant Nos.2 to 5 brought on record as LR's of the deceased sole
appellant viz., Subramania Mudaliar vide court order dated
05/10/2021 made in C.M.P.No.15671 of 2021 in S.A.No.147 of 2009 by
R.Hemlatha,J.)
Vs.
M.Natarajan ...Respondent.
PRAYER:Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 28.07.2008 passed in
A.S.No.53/2006 on the file of the I Additional Sub Court, Cuddalore
reversing the judgment and decree dated 08.03.2006 passed in
O.S.No.587/2003 before the Principal District Munsif's Court.
1/11
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S.A.No.147 of 2009
For Appellants : Mrs.Nilophar
For Respondent : Mr.R.Gururaj
JUDGMENT
The first defendant is the appellant. The plaintiff filed a suit for a
declaration for the following reliefs:-
1.Declaring the C Schedule property is a party
wall belonging to plaintiff and defendant.
2.Restraining the defendant, his men, agents and
any person claiming under him by a decree of
permanent injunction from in any manner interfering
with plaintiff's right to enjoy and enjoyment of the C
schedule property.
3. Directing the defendant to pay plaintiff the cost
of this suit and,
4.Granting such other relief and as are deemed fit.
It was the specific case that the wall is a common wall and it is a
party wall. The pleadings proceeded that the plaintiff as well as the
defendant have common and equal rights over the said wall.
2.According to the plaintiff, the defendant had approached him
for the purpose of demolition of his house including the common wall.
The plaintiff feared if the wall is demolished, his house will come
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S.A.No.147 of 2009
down collapsing and therefore, he presented the suit for a declaration
that the wall is a party wall.
3.Resisting the claim of the plaintiff, the defendant specifically
pleaded that the B and C walls belong absolutely to the defendants for
more than a century. According to the defendant, both the schedules
were allotted to the father of the defendant by name Thillaivana
mudaliar. The defendant further pleaded that the entire property
including the B & C schedule walls had been mortgaged with their
family on 24.04.1956. As such, it is not a party wall but a wall
constructed within the boundaries of their properties. According to the
defendants, the plaintiff does not have any right, title or interest over
the suit property. In fine, the plea is that it is not a party wall and it is
the own property of the defendant.
4.The parties went to Trial and examined themselves. On the side
of the plaintiff, 8 documents were marked and on the side of the
defendants, equal number of documents were marked.
5.An Advocate Commissioner was appointed by the court, whose
records were filed as Exs.C1 to C3. The plaintiff examined himself as
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S.A.No.147 of 2009
P.W.1 and the defendant examined himself as D.W.1. After a full trial,
the Trial Court came to a conclusion that the suit wall belong to the
defendant and dismissed the suit with costs.
6.On appeal by the plaintiff, the Lower Appellate Court denied
title but granted a relief of injunction. It is pertinent to point out as
against the disallowed portion, the plaintiff has not presented an appeal.
The defendants, who are aggrieved by the grant of injunction, alone
have filed this appeal.
7.At the time of the admission, the following Substantial
Questions of Law were framed:-
(i) Whether in law the lower appellate court was
right in failing to see that under Section 13 of the Indian
Easements Act an easementary right should not be
presumed in the absence of pleadings, issues and proof.
(ii) Whether in law the lower appellate court was
right in omitting to see that a claim of title and
easementary right are distinct and contradictory and
that once title has been denied, any relief based on
easement could not be granted vide AIR 1987 Mad 102?
(iii) Whether in law the lower appellate court was
right in presuming that long user over the statutory
period, animus of enjoying the easement in the wall
belonging to the appellant, and acceptance that the title
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S.A.No.147 of 2009
vests with the other person existed while granting a
decree for injunction against the true owner?
8.Mrs.Nilophar, learned Counsel appearing for the appellants
would submit that, when both the courts had come to the conclusion
that the defendant is the owner of the wall and that the C schedule
property is not a party wall but falls within the property of the
defendant, the appellate court erred in granting the relief of injunction.
She would submit that it was not a case of easement of support but a
case where the plaintiff came with a categorical plea that the wall
belonged to him as well as the defendant. She would submit that
burdening the appellants' property with an injunction when the plaintiff
had not pleaded easement is unfortunate. She would further state that,
having denied title, the Court should not have granted the relief of
injunction.
9.Mr.R.Gururaj, learned Counsel for the respondent would
submit that it is true that the wall does not belong to the respondent but
he would state that the court should grant an alternate relief of
easement by support.
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S.A.No.147 of 2009
10.I have considered the arguments advanced by the learned
counsel for the appellant and learned counsel for the respondent.
11.Here is the case where a suit is presented on the basis of title
and had been concurrently held against the plaintiff. He has not filed an
appeal against the portion rejecting the claim for title. The trial court
has dismissed the suit in full and on appeal, the lower appellate court
concurred with the finding that the plaintiff is not entitled to a relief of
title but had curiously granted an order of injunction.
12.When I pointed out to this, Mr.Gururaj, learned counsel for
the respondent would submit that the plea of easement is in the
alternative and the court has the power to grant alternative reliefs.
13.Apart from that, he would submit that the court can always
mould the relief and grant a decree for easement, though the plea is
based on title. For this proposition, he would rely upon various
judgments:-
(i).Somnath Berman, Appellant Vs. Dr.S.P.Raju and Anr. in
Civil Appeal No.2342 of 1996 with C.M.P.No.3588 of 1968 dated
16.10.1996.
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S.A.No.147 of 2009
(ii). Govind Singh Vs. A.Khaja Mohiddin in Second Appeal
No.493 of 2013 & M.P.Nos.1 to 3 of 2013 dated 30.07.2013.
(iii). Madhavan Vs. Kannammal and Ors. in Second Appeal
Nos.1542 and 1543 of 1985 dated 25.11.1987.
(iv). Visalakshi Ammal Vs. Narayanaswami Naidu and Ors. in
Second Appeal No.1431 of 1973 dated 06.07.1976.
14.I have carefully considered the arguments of either side and
gone through the records. Fortunately for me, the issue of title should
not detain me, as both the courts below have concurrently held that the
plaintiff is not the owner of the property and he has failed to prove that
it is a party wall and that it was enjoyed in common in ownership, title
and interest by the plaintiffs and the defendants. The plaintiff having
failed, ought to have carried the judgment on appeal before this court.
The plaintiff has failed to file an appeal as against the decree of
dismissal of title. Therefore, I am saved from the trouble of probing
into the issue of title. Both the courts below have held that the wall
belongs to the defendant and that portion of the decree has become
final.
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S.A.No.147 of 2009
15.The only issue is, having succeeded before the courts below
on title, whether the lower appellate court was correct in granting a
decree of injunction.
16.I am afraid that when title has been denied and the pleading is
that of ownership, grant of injunction against the true owner is
improper. Mr.Gururaj, cited several judgments before me. In none of
these cases, have the courts in a suit predicated on title, a decree, has
been granted, on easement. This is exactly the error committed by the
lower appellate court. There is no quarrel that this court does possess
the power to grant alternate reliefs but it cannot be extended to
contradictory reliefs and where there is no foundational pleadings for
easement.
17.The suit claiming that the wall is a party wall, implies that
both the plaintiffs and the defendants are the owners of the wall. If I
were to uphold the decree of injunction, it would be an invasion into
the right of the defendant for a property which absolutely belongs to
him. It is not the duty of a court to burden the owner with a liability,
when the same has not been pleaded. Had the plaintiff pleaded
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S.A.No.147 of 2009
easement, he has to necessarily concede to the title of the defendant.
Therefore, the pleading of easement and title are inherently destructive
of each other.
18.Civil Law does not know of a suit presented on title and a
decree being granted on easement.
19.The authorities that are cited by Mr. Gururaj are all cases were
the relief granted by the court is not contradictory to the relief pleaded.
I am not willing to read the plaint as one on easement and grant a
decree of injunction.
20.I answer the question of law in favour of the appellant holding
that the Lower Appellate Court having come to a conclusion that the
appellant is the owner of the property, it erred in granting an injunction
against him.
21.Consequently, the Second Appeal is allowed. The judgment
and decree in A.S.No.53 of 2006 dated 28.07.2008 in partly reversing
the judgment and decree of the Principal District Munsif Court in
OS.No. 587 of 2003 dated 08.03.2003 stands set aside. The order of
injunction granted by the Lower Appellate Court is hereby dissolved.
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S.A.No.147 of 2009
The suit shall stand dismissed in its entirety. Costs throughout.
19.04.2023
nst
Index : Yes/No
Speaking : Yes/No
Neutral Citations : Yes/No
V.LAKSHMINARAYANAN. J,
nst
To:
1.The Principal District Munsif,
Cuddalore.
2.The I Additional Sub Judge,
Cuddalore.
3. Record Keeper
VR Section
High Court of Madras
Chennai.
S.A.No.147 of 2009
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S.A.No.147 of 2009
19.04.2023
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