Kulothungan vs G.Ramachandran
2023 Latest Caselaw 1032 Mad

Citation : 2023 Latest Caselaw 1032 Mad
Judgement Date : 25 January, 2023

Madras High Court

Kulothungan vs G.Ramachandran on 25 January, 2023

                                                                                     S.A.No.24 of 2023


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 25.01.2023

                                                        CORAM

                                  THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                 S.A.No.24 of 2023
                                              and CMP.No.663 of 2023

                Kulothungan
                Rep. by his Power of Attorney
                T.Rajendran                                                     .. Appellant

                                                          Vs.

                G.Ramachandran                                                  .. Respondent

                Prayer: Second Appeal filed under Section 100 of Code of Civil Procedure,
                praying to set aside the judgment and decree dated 27.06.2022 passed in
                A.S.No.17 of 2020 on the file of the II Additional District Court, Chidambaram,
                confirming the decree and judgment dated 19.04.2017 passed in O.S.No.206 of
                2008 on the file of the Additional District Munsif, Chidambaram.


                                       For Appellant     : Mr.V.M.Venkatramana
                                       For Respondent    : Ms.P.Srividhya


                                                       JUDGMENT

This second appeal is directed as against the judgment and decree dated

27.06.2022 passed in A.S.No.17 of 2020 on the file of the II Additional District

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S.A.No.24 of 2023

Court, Chidambaram, confirming the decree and judgment dated 19.04.2017

passed in O.S.No.206 of 2008 on the file of the Additional District Munsif,

Chidambaram, thereby dismissing the suit for permanent injunction.

2. The appellant is the plaintiff and the respondent is the defendant. The

appellant filed a suit for permanent injunction in respect of the suit schedule

property. The case of the appellant is that the appellant and the respondent are

owners of the adjacent properties. The respondent had started demolition of his

property and as such, the appellant requested the respondent not to demolish

the party wall upon which the roof of the tiled house would entirely rests. Hence

the suit.

3. The case of the respondent is that the suit wall does not belong to the

appellant herein and it belongs to the defendant and it is a portion wall of his

house. Therefore, the appellant has no right over the suit wall and he has no

right to interfere with the demolition of the suit wall by the respondent. The

Trial Court, on the basis of pleadings, framed issues and had examined PWs1 to

3 and marked EXs.A1 to A12 and on the side of the respondent DWs1 to 3

were examined and EXs.D1 to D7 were marked. The Advocate Commissioners'

reports and rough sketch were marked as Exs.C1 to 4. https://www.mhc.tn.gov.in/judis

S.A.No.24 of 2023

4. On perusal of oral and documentary evidence, the Trial Court

dismissed the suit. Aggrieved by the same, the appellant preferred an appeal suit

and the same was dismissed and confirmed the judgment and decree passed by

the Trial Court. Hence the second appeal.

5. The following substantial questions of law are raised in the present

second appeal which reads as follows:-

“ 1. Whether the first appellate Court was right in determining that the appellant/plaintiff is not entitled to any right in the suit “ABCD” party wall, when the roof of the appellant/plaintiff's house rests on the “ABCD” party wall?

2. Whether the first appellate Court was right in determining the ownership of the party wall based on the sale deeds Ex.B1 and Ex.B2 alone without ascertaining the Ex.C4?

3. Whether the first appellate Court and the Trial Court were right in proceeding with the suit without considering the fact that the suit “ABCD” is a party wall?

4. Whether the first Appellate Court was right in relying on the Advocate Commissioner's report

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S.A.No.24 of 2023

Ex.C4 issued without the support of an expert/structural engineer or a qualified person?”

6. The learned counsel for the appellant would submit that the entire

house of the appellant is raised on the party wall and if it is demolished the

entire house would fell down. Therefore, it is necessary to protect the common

party wall from the hands of the respondent.

7. A perusal of records revealed that after dismissal of the suit, the suit

wall was demolished by the respondent as early as on 18.05.2017. In fact, it is

also seen from the grounds raised by the appellant before the first Appellate

Court, that the appellant filed injunction application restraining the respondent