[Cites 4, Cited by 0]
Madras High Court
R.Vijayakumar Alias vs Tmt.Ruckmani on 27 February, 2026
SA No. 1008 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27-02-2026
CORAM
THE HON'BLE DR.JUSTICE A.D.MARIA CLETE
SA No. 1008 of 2013
and
M.P.No.1 of 2013 & M.P.No.1 of 2014
R.Vijayakumar Alias
Murali S/o Late Munusami,4/1 New 15 Appu St,
Nungambakkam, Chennai 34
..Appellant(s)
Vs
Tmt.Ruckmani
W/o K.Lakshmi Narayanan 4/2 New 13 Appu St,
Nungampakkam, Chennai 34
..Respondent(s)
PRAYER: This Second Appeal filed against the judgment and decree dated
22.4.2013 made in A.S.No.503 of 2009 on the file of the II Additional Judge,
City Civil Court, Chennai, confirming the judgment and decree dated
03.12.2008 made in O.S.No.3579 of 2006 on the file of the V Assistant Judge,
City Civil Court, Chennai.
For Appellant(s): M/s. K. Govi Ganesan
For Respondent(s): M/s. A.Abdul Khader
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SA No. 1008 of 2013
JUDGMENT
Heard.
2. This second appeal is filed by the defendant in A.S. No.503 of 2009. It
challenging the concurrent judgments by which the first appellate court (II
Additional Judge, City Civil Court, Chennai) dismissed the appeal on
22.04.2013 in A.S.No.503 of 2009 and thereby affirmed the judgment and
decree of the trial court (V Assistant Judge, City Civil Court, Chennai) in O.S.
No.3579 of 2006 dated 03.12.2008
3. For convenience, the parties are referred to as they were arrayed before
the trial court.
4. The plaintiff instituted the suit seeking a mandatory injunction and a
permanent injunction in respect of a common passage. She stated that she
resides at Door No.4/2, Appu Street, Nungambakkam, Chennai–600034, and
that the defendant resides at Door No.4/1 on the same street. She traced the title
to Nagarathinam Ammal under a sale deed dated 30.06.1923, followed by a
settlement deed dated 23.11.1968 in favour of five persons, including Lakshmi
Kanthammal (the defendant’s mother) and Rajamanickammal (the plaintiff’s
grandmother). She also referred to Rajamanickammal’s death on 18.04.1977
and the subsequent devolution of her interest.
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5. According to the plaintiff, the partition deed dated 28.03.1990 divided the
properties into five portions. She was allotted Schedule “A” (Door No.4/2), the
defendant was allotted Schedule “B” (Door No.4/1), and a common passage
measuring about 500 sq. ft., described as Schedule “C”, runs along the eastern
side for common use and for access from Appu Street.
6. The plaintiff’s grievance is that the defendant encroached upon Schedule
“C” by putting up constructions and projections, particularly on the eastern side
of Door No.4/1. She alleged that this work was commenced on the night of
21.03.2006 when she was away. She stated that she lodged complaints on
22.03.2006 with the F3 Nungambakkam Police Station and with the Assistant
Engineer, Corporation of Chennai (Division 73), but that no effective action
was taken. Contending that the encroachment obstructed access and affected
light and air, she sought a decree directing removal of the encroachment and a
permanent injunction restraining any further construction in the common
passage.
7. The defendant contended that the plaintiff had not come to court with clean
hands and had suppressed material particulars, particularly regarding when the
alleged construction was put up. He denied that any recent construction was
commenced on 21.03.2006. He further asserted that the plaintiff herself had
erected sunshades and a two-floor balcony projection over the common passage,
and therefore was not entitled to discretionary relief.
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8. He maintained that the passage is meant for common use and that his
construction does not obstruct free ingress and egress. He also contended that
the plaint is vague about the nature, height, and extent of the alleged
projections, and that the allegation of obstruction is only imaginary.
9. He further relied on an alleged family understanding or arrangement
among the co-sharers under which sunshades or roofing could be put up so long
as there was no obstruction. He asserted that the construction began in July
2003, not in 2006, and that it followed the line of an earlier compound wall. He
also referred to a suit filed by neighbours in O.S. No.4109 of 2003, which was
dismissed on 20.01.2006, and claimed that the present suit was filed only to
harass him. In addition, he raised objections regarding maintainability,
including the contention that declaratory relief and appropriate court-fee were
required, and he disputed the correctness of the schedules and measurements.
10. The Trial Court proceeded on the basis that the common passage flowed
from the title arrangement and the partition, and that, being common, it had to
remain available as a passage for all those entitled to use it. The suit was thus
treated as one seeking to protect the common right of way and prevent
obstruction caused by the unilateral acts of one co-owner.
11. On the basis of the Commissioner’s observations and the materials on
record, the Trial Court held that pillars had been put up in the common passage
and that RCC roofing had been laid so as to cover or occupy the passage,
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leaving only a reduced width for use. Proceeding on that footing, it concluded
that the defendant’s work amounted to an encroachment and obstruction in a
common passage, that such unilateral appropriation could not be permitted, and
accordingly granted a mandatory injunction directing removal of the offending
construction. It also granted a consequential permanent injunction restraining its
continuance or any further obstruction, and thereby decreed the suit.
12. The First Appellate Court reconsidered the plaintiff’s case that the
passage was common under the partition arrangement and that the defendant
had narrowed or obstructed it by erecting pillars and laying RCC roofing. It
placed significant reliance on the Commissioner’s report and plan to ascertain
the nature and extent of the construction in the passage, namely, the presence of
pillars and roofing which effectively occupied the passage area and reduced the
space available for free movement. Agreeing with the Trial Court, it held that
one co-owner cannot appropriate a common passage by putting up construction
and that a co-sharer is entitled to have the passage restored and preserved for
ingress and egress. On that reasoning, the appeal was dismissed and the Trial
Court’s decree was affirmed.
13. Aggrieved by the concurrent judgments, the defendant filed this second
appeal contending that the decrees are contrary to law and the evidence on
record. He asserted that the courts below failed to consider material oral and
documentary evidence, misconstrued admissions, and placed undue reliance on
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the Advocate Commissioner’s report. He further argued that the plaintiff’s
claim is inequitable because, according to him, the common passage had
already been reduced or encroached upon by other co-owners. He also disputed
the finding that the construction was put up only in 2006, maintaining instead
that it was raised in July 2003. He questioned the completeness and evidentiary
value of the Commissioner’s report and contended that the plaintiff ought to
have proved the absence of permission or sanction and sought declaratory relief.
In addition, he pleaded that the suit is barred by limitation and that the plaintiff
is not entitled to a mandatory injunction in view of alleged similar
encroachments by the plaintiff and others.
14. It is well settled that, in a second appeal under Section 100 of the Code of
Civil Procedure, interference is permissible only if a substantial question of law
arises. This Court cannot function as a third fact-finding court by reappreciating
the evidence or reweighing concurrent findings of fact.
15. Learned counsel for the appellant/defendant confined his submissions to
the issue of maintainability on the ground of limitation. The Trial Court dealt
with the question of limitation in detail and held that the suit, having been filed
within three years of the alleged construction, was within time. Before the
courts below, the defendant had pleaded that the construction was put up in
2003 and that, therefore, the suit filed in 2006 was barred by limitation. That
contention was rejected by applying Article 113 of the Limitation Act 1963.
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The appellant’s counsel now argues that the invocation of Article 113 was
incorrect and that Article 84 of the Limitation Act, 1963 is the appropriate
provision. The defendant did not dispute that the suit schedule property is a
common passage, used by the sharers.
16. Article 84 of the Limitation Act applies only where property earmarked
for a particular purpose has been abandoned and is being used for an entirely
different purpose. In the present case, the defendant has put up certain
constructions in the common passage, causing obstruction and inconvenience,
but the property continues to be used as a common passage. In such
circumstances, Article 84 has no application. The proper provision is Article
113, and therefore the concurrent findings of the courts below do not call for
interference.
17. Accordingly, the second appeal is dismissed at the admission stage. There
will be no order as to costs. As a consequence, the connected miscellaneous
petition, if any, stands closed.
27-02-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
MFA
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To
1. (II Additional Judge, City Civil Court, Chennai)
2. (V Assistant Judge, City Civil Court, Chennai)
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DR.A.D.MARIA CLETE, J.
MFA
and
M.P.No.1 of 2013 & M.P.No.1 of 2014
27-02-2026
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