1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:10.03.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.117 of 2011 and MP(MD)No.1 of 2011 Victor Edward :Appellant/Plaintiff -Vs- Nesamani Ammal :Respondent/Defendant Second Appeal filed under section 100 of CPC against the Judgment and decree dated 05.10.2010 passed in Appeal Suit No.95 of 2008 by the Sub Court, Valliyoor confirming the Judgment and decree dated 27.04.2007 passed in Original Suit No.118 of 1997 by the Principal District Munsif Court, Valliyoor. For Appellant:Mr.S.Subbiah JUDGMENT Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No.118 of 1997 by the Principal District Munsif Court, Valliyoor and in Appeal Suit No.95 of 2008 by the Sub Court, Valliyoor. 2.The appellant herein as plaintiff has instituted Original Suit No.118 of 1997 on the file of the trial Court for the reliefs of declaration and mandatory injunction, wherein the present respondent has been shown as sole defendant. 3.It is averred in the plaint that the suit first schedule property has been purchased by the father of the plaintiff in the year 1933 and after purchase he constructed a house. At the time of putting up construction, for the purpose of maintaining western wall, he left 1½ feet and the same has been shown as suit fourth schedule. The suit second schedule has been purchased by the father of the plaintiff in the year 1937 and the same is situate immediately on the eastern side of the suit first schedule. Only after purchasing the suit second schedule, in the suit first schedule building has been constructed. The father of the plaintiff has passed away prior to 36 years and after his demise the plaintiff has succeeded his estate including the suit schedules 1, 2 and 4. In the suit forth schedule the defendant is not having any manner of right, title and interest and she illegally encroached a portion of the suit fourth schedule and put up construction. Under the said circumstances, the present suit has been instituted so as to declare that the suit fourth schedule forms part of the suit first schedule and also to pass a decree of mandatory injunction so as to remove the construction put up by the defendant. 4.In the written statement filed on the side of the defendant, it is averred that it is false to contend that the suit fourth schedule forms part of the suit first schedule. It is also equally false to say that at the time of putting up construction in the suit first schedule, 1½ feet has been left apart from the western wall of the plaintiff so as to maintain the same. The eastern compound wall of the defendants and western compound wall of the https://hcservices.ecourts.gov.in/hcservices/ 2 plaintiff is nothing but a common wall. It is false to contend that the defendant has encroached the alleged portion in the suit fourth schedule The present suit has been instituted vexatiously and there is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has filed Appeal Suit No.95 of 2008 on the file of the first appellate Court. 6.The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the Judgments and decrees passed by the Courts below, the present second appeal has been filed at the instance of the plaintiff as appellant. 7.Considering the nature of the relief sought for in Original Suit No.118 of 1997 and also considering the nature of admission made by the respondent/defendant in her written statement, this Court is of the view to dispose of this second appeal at the stage of admission even without giving notice to the respondent/defendant. 8.On the side of the appellant/plaintiff the following substantial questions of law have been raised for consideration: (a)Whether the deeds transferring an interest in an immovable property not to the value of Rs.100/- but below Rs.100/- require compulsory registration under section 17(b) of the Registration Act? (b)Whether the documents were refused to be received by the trial Court during the trial of the suit though confirmed in revision to the High Court under section 115 of Code of Civil Procedure and further confirmed in the Supreme Court would preclude the reception of the documents by way of an Additional Evidence by challenging the same in the grounds of revision under section 104 of Code of Civil Procedure? (c)When the report of the Advocate Commissioner was found to be inadequate by not having taken the assistance of the qualified surveyor can the Court reject the report of the Advocate Commissioner, simply because the party did not take up for the appointment of an Advocate Commissioner to measure the property with the help of the qualified surveyor? (d)When the relief of easement was also pleaded can the Court refuse to grant the relief simply because the alternative relief cannot be granted when the plaintiff claimed a title to the property and so, the relief of easementary right could not be granted? (e)When the defendant herself had admitted that the wall was only a common wall between the parties whether the defendant as a co-owner could obstruct the enjoyment of the plaintiff by putting another wall by preventing the plaintiff from enjoying his property? https://hcservices.ecourts.gov.in/hcservices/ 3 9.The nubble of the case of the plaintiff is that the suit fourth schedule forms part of the suit first schedule and the same exclusively belongs to the plaintiff and now the defendant has encroached a portion of the suit fourth schedule and put up construction by way of denying the title of the plaintiff. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint. 10.The crux of the defence taken on the side of the defendant is that the eastern compound wall of the defendant and western compound wall of the plaintiff is nothing but a common wall and therefore, the plaintiff does not have any right apart from the common wall which has been shown as suit forth schedule and therefore, the claim of the plaintiff with regard to the suit fourth schedule is totally erroneous. 11.As pointed out earlier, the Courts below after evaluating the evidence available on record have rejected the claim made on the side of the appellant/plaintiff. Under the said circumstances the only point that has now winched to the fore in the present second appeal is as to whether the concurrent Judgments and decrees passed by the Courts below are perfectly correct or the same require interference. 12.Before contemplating the argument advanced by the learned counsel appearing for the appellant/plaintiff it would be apposite to look into the juxtaposition of the properties of the plaintiff and defendant. It is an admitted fact that in the trial Court an Advocate Commissioner has been appointed and he inspected the suit properties and its adjoining properties and filed his report and plan. In the Commissioner's plan it has been clearly stated that the property of the plaintiff, that is the suit first schedule is situate on the eastern side and the property of the defendant is situate on the western side. On the southern side of the properties of the plaintiff and defendant, an east west road is situate. 13.The consistent case of the plaintiff is that the suit fourth schedule is nothing but 1½ feet on east west and 40 feet on north south which situates apart from the wall which has been shown as 'A, I' in the Commissioner's plan. 14.The Courts below have concurrently rejected the main reliefs sought for in the plaint on the ground that the appellant/plaintiff has not filed any clinching document to show that the suit fourth schedule forms part of the suit first schedule. 15.The learned counsel appearing for the appellant/plaintiff has fairly conceded that there is no clinching document to show that the suit fourth schedule is the absolute property of the appellant/plaintiff and the present suit has been instituted for the reliefs of declaration and mandatory injunction and at the most, the Court can grant the relief of declaration to the extent that the wall which situates immediately on the western side of the house of the plaintiff as well as on the eastern side of the house of the defendant is a common wall. https://hcservices.ecourts.gov.in/hcservices/ 4 16.Of course it is true that the present suit has been instituted for the relief of declaration to the effect that the suit fourth schedule forms part of the suit first schedule. In the written statement filed on the side of the defendant at paragraph-4, it has been clearly mentioned that the western compound wall of the plaintiff and eastern compound wall of the defendant is nothing but a common wall. The present suit has been instituted for getting the relief of declaration by way of showing fourth schedule as if the same is situate apart from the alleged common wall. Considering the fact that the wall mentioned in the written statement is situate immediately on the western side of the house of the plaintiff and eastern side of the house of the defendant, this Court is of the view that for the purpose of giving quietus to the parties, declaratory relief can be granted to the extent that the wall mentioned supra is a common wall and to that extent, the present second appeal can be allowed. 17.On the side of the appellant/plaintiff all the substantial questions of law have been raised with regard to exclusive right of the fourth schedule. Since the reliefs sought for in the plaint with regard to fourth schedule has been glaringly abnegated on the side of the appellant/plaintiff, it is needless to say that all the substantial questions of law raised on the side of the appellant/plaintiff have become useless. 18.It has already been pointed out that at the most the declaratory relief can be granted with regard to common wall mentioned supra and to that extent, the present second appeal can be allowed and the concurrent Judgments and decrees passed by the Courts below can be modified. 19.In fine, this second appeal is allowed in part without cost at the stage of admission. Connected Miscellaneous petition is closed. The concurrent Judgments and decrees passed in Original Suit No.118 of 1997 and in Appeal Suit No.95 of 2008 by the Courts below are modified as follows: “Original Suit No.118 of 1997 is decreed without cost to the extent that the western compound wall of the plaintiff and the eastern compound wall of the defendant is nothing but a common wall.” Sd/- Deputy Registrar (LA) / TRUE COPY / Assistant Registrar To: 1.The Subordinate Judge, Valliyoor. 2.The Principal District Munsif, Valliyoor. +1CC to Mr.S.Subbiah, Advocate. SR.No.5795. Mj RP/31.05.2011/4P/4C. SA(MD)No.117 of 2011 10.03.2011 https://hcservices.ecourts.gov.in/hcservices/