1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.06.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD).No.223 of 2011 1.Manoharan 2.Kadirvel ..Appellants/Defendants 2 & 3 Vs. 1.Sakkubai 2.Eradha 3.Mohan 4.Valambal ..Respondents/Plaintiffs 2 to 5 Prayer: Appeal filed under Section 100 of the Civil Procedure Code, 1908 against the judgment and decree passed in A.S.No.16 of 2008 on the file of the First Additional Sub-Court, Tiruchirapalli dated 28.10.2009, confirming the judgment and decree passed in O.S.No.61 of 1997 on the file of District Munsif cum Judicial Magistrate Court, Lalgudi dated 17.09.2007. For Appellants :Mr.K.S.Vamsidhar For Respondents :Mr.S.Muthukrishnan JUDGMENT This second appeal has been directed against the concurrent judgments and decrees passed in O.S.No.61 of 1997 by the District Munsif cum Judicial Magistrate Court, Lalgudi and in A.S.No.16 of 2008 by the First Additional Sub-Court, Trichirapalli. 2.The respondents herein as plaintiffs have instituted O.S.No.61 of 1997 on the file of the trial Court praying to pass a decree of perpetual injunction so as to restrain the defendants from interfering with the constructing a wall on the northern side from point A upto point D which is shown in the plaint plan and also for passing mandatory injunction so as to direct the defendants to put up a doorway in AF line or in any other convenient place. 3.It is averred in the plaint that the plaintiff and first defendant have entered into a partition deed dated 13.12.1952, wherein, 6th item of A schedule has been given to the first defendant. The 6th item of B schedule has been given to the plaintiff. The property which has been allotted to the share of the first defendant is situate on the northern side and the property which has been allotted to the plaintiff is situate on the southern side. The AD line which is shown in the plaint plan is nothing but a dividing line between the properties of the plaintiff and first defendant. Now the plaintiff has decided to put up a wall from point A upto point D. The defendants have not put up any doorway from points A to F. Under https://hcservices.ecourts.gov.in/hcservices/ 2 the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendants it is averred that a partition deed has come into existence on 13.12.1952. The suit properties have not been properly described. It is true that the properties mentioned in the plaint have been allotted to the share of the plaintiff as well as first defendant. There is a wall in between the properties of the plaintiff and first defendant. 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 analysing both the oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the defendants as appellants have preferred A.S.No.16 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 concurrent judgments and decrees passed by the courts below, the present second appeal has been preferred at the instance of the defendants as appellants. 7.As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration: “1.Whether in view of Section 91 of the Evidence Act, the oral claim of the plaintiffs that the measurements were actually '''fhyo' and not '$hjpao' can be accepted? 2.Whether in view of Section 26 of the Specific Relief Act, the plaintiffs who did not get Exhibit P1 rectified by getting a decree for rectification or a mutual rectification deed, could go against the specific recitals of Exhibit P1? 3.Whether the lower courts were right in granting a decree after holding that the plaintiffs had not proved their case? 4.Whether the lower courts were right in totally basing their case on the report of the advocate Commissioner, ignoring the documentary evidence?” 9.Before considering the rival submissions made on either side, it would be more useful to look into the nature of the reliefs https://hcservices.ecourts.gov.in/hcservices/ 3 sought for in the plaint. In the plaint relief column, it is prayed like thus: “a)For a permanent injunction restraining the defendants their men, agents and servants from interfering with peaceful possession and enjoyment of the plaintiff's property and also restraining the defendants not to obstruct and interfere with the constructions of east west wall in the northern and of the plaintiff's property which is shown as “AD” in the plan for the item number. b)for a mandatory injunction directing the defendants to put up a doorway in their portions namely in the “AF” line or any other convenient spot within their property and if they failed to do so within a stipulated time, this Honourable court may be pleased put up through the process the court and recover the cost for the same from the defendants for the item No.2 in the plaint.” 10.It is an admitted fact that the plaintiff and the first defendant have entered into a partition deed dated 13.12.1952, wherein, the suit first item has been allotted to the plaintiff and second item has been allotted to the first defendant. 11.The main relief sought for in the present suit is that the defendants should not disturb the peaceful possession and enjoyment of the plaintiff over the suit first schedule and the defendants should not interfere in the construction of wall put up by the plaintiff in AD line. 12.The learned counsel appearing for the appellants/defendants has repeatedly contended that in the trial court, an advocate commissioner has been appointed and he inspected the suit properties and filed his report and plan. In the commissioner's plan, the portion which has been shown as FD is the absolute property of the plaintiff and the portion which has been shown as AF is the absolute property of the first defendant and in the portion which has been shown as IJ, a gate is in existence and by way of filing the present suit, the plaintiff has made an attempt to restrain the defendants from using the said gate and therefore the present suit is not legally maintainable. 13.The learned counsel appearing for the respondents/plaintiffs has also equally contended that the first relief is only with regard to construction of wall from point F towards eastern side and the second relief is only with regard to putting up doorway at any point from A to F. Under the said circumstances, no relief has been sought for with regard to the place which has been shown as IJ and therefore, the entire argument advanced by the learned counsel appearing for the appellants/defendants is of no use. https://hcservices.ecourts.gov.in/hcservices/ 4 14.As stated earlier, the first and foremost relief is to pass a perpetual injunction with regard to suit item No.1. It is an admitted fact that suit item No.1 has been allotted to the share of the deceased plaintiff. Now, he tried to put up east west wall from point F towards eastern side. 15.Considering the fact that the suit first schedule has been allotted to the share of the deceased plaintiff and also considering that he decided to put up east west wall from point F towards eastern side, it is very clear that the first relief sought for in the plaint can very well be granted. 16.Now, the court has to look into the nature of second relief sought for in the plaint. It is an admitted fact that AF portion, which has been shown in the commissioner's plan is the absolute property of the first defendant, which has been allotted to his share in the partition deed. The second relief is to direct the defendants to put up a doorway in any portion from point A to F. 17.It is seen from the commissioner's plan that from points EF, the doorway of the house of the first defendant is in existence. Considering the fact that the portion which has been shown as AF is the absolute property of the first defendant and also considering that already a doorway is in existence at points EF, the defendants cannot be directed to put up a doorway in the portion which has been shown as AF in the plaint plan. Therefore, the second relief sought for in the plain cannot be granted and further the entire argument advanced on the side of the appellants/defendants is with regard to the portion which has been shown as IJ in the commissioner's plan. In the Commissioner's plan, it has been clearly mentioned that IJ portion is nothing but a gate. Since no mention has been made in the plaint and since no relief has been sought for with regard to IJ portion, the argument advanced on the side of the appellants with regard to the said portion cannot be accepted. 18.It has already been pointed out that the relief of mandatory injunction has been sought for only with regard to the portion which has been shown as AF in the plaint plan. In the commissioner's report, it has been specifically stated that at points EF, a doorway is in existence so as to have ingress and egress to the house of the first defendant. Considering the existence of doorway at points EF and also considering that the portion which has been shown as AF in the Commissioner's plan is the absolute property of the first defendant, the second relief sought for in the plaint is totally unwarranted. 19.The courts below, without considering the nature of the second relief sought for in the plaint, have erroneously accepted the contention urged on the side of the plaintiff. Under the said circumstances, the present second appeal is liable to be allowed in part. Since the present second appeal is liable to be allowed in https://hcservices.ecourts.gov.in/hcservices/ 5 part, the substantial question of law raised in the present second appeal with regard to the second relief is really having substance. 20.In fine, this second appeal is allowed in part without costs at the stage of admission. Consequently, connected M.P.No.2 of 2011 is closed. The judgments and decrees passed by the courts below are modified as follows: “The plaintiffs are entitled to get the relief of permanent injunction with regard to suit first item and to that extent, the present suit is decreed as prayed for without costs. With regard to the relief of mandatory injunction, the present suit is dismissed without costs.” Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1.The First Additional Subordinate Judge, Tiruchirapalli 2.The District Munsif cum Judicial Magistrate, Lalgudi. +1cc to Mr.K.S.Vamsidhar, Advocate Sr.No.20241 +1cc to Mr.S.Muthukrishnan, Advocate Sr.No.20366 vs akm/21.07.11 /5p-5c/ SA.(MD).No.223 of 2011 27.06.2011 https://hcservices.ecourts.gov.in/hcservices/