Madras High Court
S. Ahamed Shafie vs R. Sekar on 12 June, 2023
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.06.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1626 of 2011
&
M.P. No. 1 of 2011 and C.M.P. No.7071 of 2022
S. Ahamed Shafie ...Appellant
Vs.
R. Sekar ... Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 13.07.2011 passed in A.S. No.5 of 2011, on
the file of the Principal Subordinate Judge, Erode, upholding the decree
and judgment dated 19.01.2010 passed in O.S. No.162 of 2006, on the
file of the II Additional District Munsif, Erode.
For Appellant : Mr. K.S. Jeyaganeshan
For Respondent : Mr. M. Guruprasad
JUDGMENT
The defendant who failed before both the courts below has
filed this present Second Appeal.
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
2. The respondent/plaintiff filed the suit in O.S. No.162/06
before the II Additional District Munsif, Erode for a permanent
injunction restraining the appellant/defendant from interfering with his
peaceful possession and enjoyment of the suit property and also for a
mandatory injunction directing the appellant/defendant to remove the
encroachments made by him on the common wall. The suit property as
described in the plaint, is a house bearing Door No.27, T.S. No.43 P, East
Kongalamman Kovil Street, Erode Taluk and District, measuring 997
sq.ft. within the boundaries stated therein.
3. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeal would also be indicated.
4. The case of the plaintiff in nutshell is as follows:
I. The suit property and the other properties originally belonged to
one S.K.H.M. Kahija Bee @ Jimminiammal, wife of S.K.
Mohammed Ibrahim Sahib. After her death, her legal heirs
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
divided her properties through a registered partition deed dated
24.12.1971 (Ex.B2).
II. The suit property was allotted to the share of one E.K.M. Abdul
Gani and E.M.M. Mohammed Hassan Sahib, sons of
E.K.Mohammed Ibrahim Sahim and brothers of S.K.H.M. Kahija
Bee @ Jimminiammal.
III.The plaintiff and his brothers purchased the suit property from
E.K.M. Abdul Gani and the legal heirs of the deceased
E.M.M.Mohammed Hassan Sahib through a registered sale deed
dated 18.08.1994 (Ex.A1). Ever since the date of purchase the
plaintiff and his brothers were in possession and enjoyment of the
same by paying necessary tax to the Government.
IV.Subsequently, the plaintiff and his brothers divided their properties
in a partition suit filed by them in O.S. No.655 of 1998 before the
same court. In the final decree, the suit property was allotted to
the share of the plaintiff. Thus the plaintiff is the absolute owner
of the suit property.
V. The defendant is the owner of the property which is situate on the
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
northern side of the plaintiff's property. The defendant had
acquired title to his property through a registered settlement deed
dated 21.01.2000 (Ex.B4) executed by one Raffia Bibi, the mother
of the defendant.
VI.The plaintiff and the defendant are equally entitled to enjoy the
wall which lies between their properties. The sale deed in favour
of the plaintiff clearly mentions that the wall between the property
of the plaintiff and the defendant should be enjoyed in common
and that the plaintiff is entitled to half share in the said wall. The
defendant, however, constructed a building in his property which
rests on the common wall. Thus he has encroached upon the entire
common wall.
VII.The plaintiff wanted to reconstruct his property and requested the
defendant to remove the encroachment made by him over the
common wall. However the defendant rushed to the court and
filed a false suit in O.S. No.62/2005 before the I Additional
District Munsif, Erode with an allegation that the plaintiff
attempted to demolish the wall. The interim injunction application
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
filed by the defendant was dismissed and in the appeal the First
Appellate Court directed the trial court to expedite the trial and
both the parties should maintain status quo till the disposal of the
suit.
VIII.Since the defendant had filed the said suit alleging that the
plaintiff is the wrong doer, he is contained to file the present suit.
5. The suit was resisted by the defendant on the following
grounds.
I. The house bearing Door No.27 situate on the northern side of the
house belonging to E.K.M. Abdul Gani and E.M.M. Mohammed
Hassan Sahib, was allotted to U.K. Hajee Pathumuthu Bibi in the
family partition and the said U.K. Hajee Pathumuthu Bibi
bequeathed the said property to her daughter Rafia Bibi under the
settlement deed dated 30.08.1974 (Ex.B3).
II. The said property was actually situate on the northern side of the
property of her maternal uncles namely E.K.M.Abdul Gani and
E.K.M. Mohammed Hassan. Rafia Bibi demolished the entire
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
existing tiled house and put up a pucca terraced building in the site
and she also constructed a Madras terraced building in the first
floor.
III.Since E.K.M.Abdul Gani and E.K.M. Mohammed Hassan are the
maternal uncles of Rafia Bibi, they allowed their niece to put up
the first floor on the southern side of East-West suit Wall. Thus
the terraced first floor building of the defendant was constructed
on the southern East-West wall with the consent, knowledge and
approval of the erstwhile southern side owners.
IV.The plaintiff who is the subsequent purchaser cannot question the
same at this point of time. In fact such a massive construction
could not have been built over night as alleged by the plaintiff. If
really the construction had been put up after the purchase made by
the plaintiff on 18.08.1994, the plaintiff should have immediately
taken action against the defendant. The plaintiff having kept quiet
all these years cannot now contend otherwise. He therefore prayed
for dismissal of the suit.
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
6. On the basis of the above pleadings, the trial Court framed
the following issues :
i. "Whether the plaintiff is entitled for a mandatory injunction as
prayed for by him?
ii. Whether the plaintiff is entitled for a Permanent Injunction as
prayed for by him?
iii. To what relief, the plaintiff is entitled?"
7. In the trial Court, the plaintiff examined himself and marked
Ex.A1 to Ex.A6. The defendant examined himself and marked Ex.B1 to
Ex.B9.
8. The trial Court Judge, after full contest, decreed the suit in
favour of the plaintiff vide his decree and judgment dated 19.01.2010 on
the following grounds :
i. A perusal of the sale deed (Ex.A1), decree and judgment passed in
O.S. No.655 of 1998 (Ex.A2) and the settlement deeds dated
30.08.1974 (Ex.B3) and 21.01.2000 (Ex.B4) clearly show that the
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
disputed wall is the common wall.
ii. The defendant also during the course of cross examination
admitted that the disputed wall is common to both the plaintiff and
the defendant and her mother constructed the first floor resting on
the common wall with the permission of her maternal uncles who
were the original owners and vendors of the plaintiff.
iii. Moreover, normally the Sub Registrar would inspect the property
before valuing the property in Annexure IA. The Sub Registrar has
not indicated in Annexure IA about the existence of first floor in
the property of the defendant.
iv. In any event, the defendant did not adduce any acceptable
evidence to show that her mother, after getting permission from
the erstwhile owners of the plaintiff's property, constructed the
first floor resting on the common wall. The erstwhile owners were
Rafia Bibi's own maternal uncles and they have not been examined
in the present case.
v. Since the plaintiff and the defendant were enjoying the wall in
common, the defendant cannot construct a building over the said
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
wall and therefore the same is liable to be demolished.
9. Aggrieved over the decree and judgment passed by the trial
Court Judge, the defendant filed an appeal in A.S. No.5 of 2011 before
the Principal Subordinate Court, Erode. The learned Principal
Subordinate Judge, Erode, after analysing the oral and documentary
evidence adduced on both sides upheld the findings of the trial court vide
his decree and judgment dated 13.07.2011.
10. Now the present Second Appeal is filed by the defendant
and the following substantial questions of law were framed by my
learned predecessor.
i. "Whether the Courts below are correct in allowing the suit if the
same is barred by the Doctrine of Res judicata?
ii. Whether the Courts below are correct in granting the relief in the
absence of a clear description of property?
iii. Whether the Lower Appellate Court is right in holding that the
appellant/defendant cannot raise a question of law at the appellate
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
stage?
iv. Whether the Courts below are correct in granting a finding which
has not been prayed for?
11. Heard Mr. K.S. Jeyaganeshan, learned counsel for the
appellant and Mr. Guruprasad learned counsel for the second respondent.
12. Mr. K.S. Jeyaganeshan, learned counsel for the appellant
contended that both the courts below committed an error in placing the
entire burden upon the defendant and decreed the suit in favour of the
plaintiff. His further contention is that as per Section 101 to 103 of
Indian Evidence Act, the onus is on the plaintiff to prove his case and in
the present case, the plaintiff has failed to prove his contentions. It is
also his contention that the defendant could not have constructed the
entire building over night as alleged by the plaintiff and the plaintiff who
purchased his property during the year 1994 did not take any action
against the defendant and on the other hand, he had approached the court
only during the year 2006 and that too after filing of the suit in
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
O.S.No.62/2005 by the defendant. It is his further submission that the
suit filed by the plaintiff is also hopelessly barred by limitation on the
ground of delay and laches and also in view of Article 113 of the
Limitation Act.
13. Per contra, Mr. Guruprasad, learned counsel for the
respondent contended that both the courts below, after analysing the oral
and documentary evidence adduced on both sides had rendered a
concurrent finding and this Court cannot interfere with the same when
they are not perverse. He also relied on the decision in Gurdev Kaur vs.
Kaki (Appeal (civil) 2083 of 2006 dated 18.04.2006) and contended that
the Hon'ble Supreme Court had expressed its deep anguish that still the
scope of Section 100 CPC has not been correctly appreciated and applied
by the High Courts in a large number of cases. The Hon'ble Supreme
Court had also made an observation that the High Courts would decide
the appeal only in accordance with the scope of Section 100 CPC and
should not interfere with the concurrent decisions rendered by the courts
below. It is also his contention that there is no jurisdiction to entertain a
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
Second Appeal on the ground of an erroneous finding of fact, however,
gross or inexcusable the error may seem to be.
14. Though the suit property in the plaint schedule is indicated
as the house of the plaintiff, the actual dispute between the plaintiff and
the defendant is in respect of East-west common wall between the
property of the plaintiff and the defendant. The plaintiff and his brothers
purchased the suit property from one E.K.M.Abdul Gani and the legal
heirs of E.M.M. Mohammed Hassan Sahib through a registered sale deed
dated 18.08.1994 (Ex.A1). Originally the suit property and the adjacent
properties were owned by one S.K.H.M. Kahija Bee @ Jimminiammal,
wife of S.K. Mohammed Ibrahim Sahib. After her demise, her properties
were partitioned among her legal heirs through a registered partition deed
dated 24.12.1971 (Ex.B1). In the said partition, the suit property fell to
the share of E.K.M. Abdul Gani and E.M.M. Mohammed Hassan Sahib.
According to the plaintiff he and his brothers were in possession and
enjoyment of the suit property and the common wall on the northern side
of their property. Thereafter in the suit for partition in O.S. NO.655 of
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
1998, the suit property was allotted to the share of the plaintiff. The
appellant/defendant acquired the property through a registered settlement
deed dated 21.01.2000 (Ex.B4) executed by her mother Rafia Bibi. All
these aspects are admitted by both the parties. According to the plaintiff
the East-west wall on the northern side of his house is a common wall of
the plaintiff and the defendant and the defendant had encroached upon
the entire wall by constructing the first floor which rests on the entire
common wall.
15. On the other hand, the contention of the defendant is that
E.K.M. Abdul Gani and E.M.M. Mohammed Hassan Sahib, from whom
the plaintiff and his brothers purchased the suit property, were his
mother's maternal uncles and her mother with their consent and
knowledge constructed the first floor and they did not raise any
objection. Except the oral evidence of D.W.1, there is no other
acceptable evidence to show that her mother got an oral consent from the
vendors of the plaintiff to put up the construction over the common wall.
The sale deeds (Ex.A1 and Ex.A2), the partition deeds and the settlement
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
deeds (Ex.B1 to Ex.B4) clearly show that the disputed wall is a common
wall. In fact the settlement deed dated 30.08.1974 (Ex.B3) executed in
favour of the defendant's mother clearly shows that the property
measuring 350 sq. ft was settled in her favour by her mother U.K. Hajee
Pathumuthu Bibi. The very same property was settled in favour of the
defendant by her mother Rafia Bibi and this settlement deed dated
21.01.2000 was marked as Ex.B4. In the settlement deed (Ex.B4) there
is no mention about the construction of the first floor. The plaintiff and
his brothers purchased the suit property during the year 1994 through
Ex.A1 and as already observed,in the suit for partition in O.S.
No.655/1998, the suit property was alloted to the share of the plaintiff on
20.04.1998. The defendant did not adduce any evidence to show that the
first floor of the house was constructed even prior to the purchase of suit
property by the plaintiff.
16. Both the courts below had analysed the entire oral and
documentary evidence adduced by both the parties and had rightly
concluded that the disputed wall is a common wall and that the defendant
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
had not established that her mother got oral consent for constructing the
first floor which rests on the entire common wall. In fact, in the
settlement deed Ex.B4 executed by Rafia Bibi in favour of the defendant,
there is no mention about the existence of first floor. As already
observed, this settlement deed is of the year 2000 and the plaintiff and
his brothers had purchased the suit property even during the year 1994.
Therefore, it cannot be said that the suit is barred by limitation as
contended by the learned counsel for the appellant.
17. The substantial question of law No.1 does not arise as it is
not the case of the defendant that the suit is barred by the principles of
Resjudicata and the substantial questions of law 2,3 and 4 are answered
against the defendant.
18. In the result,
i. the Second Appeal is dismissed. No costs. Consequently,
connected Civil Miscellaneous Petitions are closed.
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
ii. the decree and judgment dated 13.07.2011 passed in A.S. No.5 of
2011, on the file of the Principal Subordinate Judge, Erode, and
the decree and judgment dated 19.01.2010 passed in O.S. No.162
of 2006, on the file of the II Additional District Munsif, Erode, are
upheld.
12.06.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
https://www.mhc.tn.gov.in/judis
S.A.No.1626 of 2011 & M.P. No. 1 of 2011 & C.M.P. No.7071 of 2022
R. HEMALATHA, J.
bga
To
1. The Principal Subordinate Judge, Erode.
2. The II Additional District Munsif, Erode
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.1626 of 2011
&
M.P. No. 1 of 2011 and C.M.P. No.7071 of 2022
12.06.2023
https://www.mhc.tn.gov.in/judis
