1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.258 of 2011 and MISCELLANEOUS PETITION Nos.1 and 2 of 2011 Suresh @ Seenivasaraja .. Appellant/Plaintiff Vs. 1.N.Seethalakshmi 2.Ananthammal 3.A.V.Narayanasamy Naicker .. Respondents/Defendants Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 27.09.2010 passed in Appeal Suit No.22 of 2010 by the Sub Court, Kovilpatti reversing the Judgment and decree dated 07.11.2009 passed in Original Suit No.49 of 2007 by the District Munsif Court, Kovilpatti. For Appellant : Mr.Rajesh Saravanan For Respondents : Mr.S.Ramasamy JUDGMENT The Judgment and decree dated 27.09.2010 passed in Appeal Suit No.22 of 2010 by the Sub Court, Kovilpatti are being challenged in the present second appeal. 2. The appellant herein as plaintiff has instituted Original Suit No.49 of 2007 on the file of the District Munsif Court, Kovilpatti for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants. 3. In the plaint it is averred that the suit second schedule is the absolute property of the plaintiff and he got the same by way of partition deed dated 26.07.2002. The suit first schedule is nothing, but a common wall and the same is situate in between the suit second schedule and the property of the defendants and now the defendants have been claiming exclusive right, title and interest over the suit first schedule. Under 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 the suit first schedule is originally belonged to the predecessors in title of the defendants. It is false to say that the same is a common wall and further the defendants are having 1½ feet in north-south apart from the common wall. The plaintiff is not having any https://hcservices.ecourts.gov.in/hcservices/ 2 manner of right, title and interest over the suit first schedule (common wall). 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 Appeal Suit No.22 of 2010 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 allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and ultimately dismissed the suit. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: a) Whether the the first appellate Court can dismiss the suit filed by the plaintiff without considering relief prayed by the plaintiff? b) Whether the Judgment and decree of the first appellate court is perverse as it had not considered and decided the real dispute between the parties that is nature of wall? c) Whether the first appellate Court finding that the partition deed dated 26.07.2002 is not valid when such question is not arising? d) Whether the first appellate Court can frame issue for determination when no pleading in the memorandum of appeal? e) Whether the first appellate Court is correct in deciding issues without giving opportunity to the other side to answer the issues? f) Whether the Judgment and decree of the first appellate Court is perverse as it had not considered all documents in proper manner? g) Whether the first appellate Court is correct to dismiss the suit without considering prayer in the suit? 9. Before considering the rival submissions made on either side, on the basis of the description given in the plaint, the Court has to narrate the juxtaposition of the suit first schedule and suit second schedule and also the property of the defendants. 10. The suit first schedule is a wall. On the side of the plaintiff, it has been contended that it is a common wall whereas on the side of the defendants it is stated that it is their separate wall. The suit second schedule is the separate property of the plaintiff and the same is situate immediately on the southern side of the suit first https://hcservices.ecourts.gov.in/hcservices/ 3 schedule. On the northern side of the disputed wall, the property of the defendants is situate. 11. It has been contended on the side of the plaintiff that the suit first schedule is nothing, but a common wall and since the defendants have been claiming exclusive right, title and interest over the same, the present suit has been instituted for the reliefs sought for therein. 12. The consistent stand taken on the side of the defendants is that the disputed wall is the exclusive wall of the defendants and apart from the disputed wall the defendants are having 1½ feet in north-south and therefore it is false to contend that the disputed wall is a common wall. 13. The trial Court has decreed the suit as prayed for. But the first appellate Court has dismissed the same on the basis of non-joinder of necessary party and also on the basis of the Commissioner's Reports and Plans. Under the said circumstances, the only point that has to be decided in the present second appeal is as to whether the suit first schedule is a common wall as alleged on the side of the plaintiff or it is a separate wall which exclusively belongs to the defendants? 14. The plaintiff has instituted the present suit on the basis of Exs.A.1 and A.2. Ex.A.1 is nothing, but an anterior document and Ex.A.2 is a partition deed dated 26.07.2002, wherein the suit second schedule has been allotted to the share of the plaintiff. The anterior documents of the defendants have been filed on the side of the plaintiff as Exs.A.6 and A.9. In both the documents, it has been clearly mentioned that the property purchased by the predecessors in title of the defendants is situate immediately on the northern side of the common wall. 15. It is an admitted fact that in the trial Court an Advocate Commissioner has been appointed and twice he inspected the disputed property and its adjoining properties and he filed his Reports and Plans, wherein it has been stated that as per the measurements given in the documents relied upon by the defendants, the defendants are having 1½ feet in north-south apart from the disputed wall. Since in Exs.A.6 and A.9, it has been clearly mentioned that the property, which has been dealt with under the said documents is situate immediately on the northern side of the common wall, it is needless to say that the disputed wall is nothing, but a common wall. 16. The defendants have claimed their exclusive right only on the basis of the measurements given in their documents. It is an acknowledged principle of law that the boundaries would prevail over area. Since the disputed wall has been shown as common wall and the same has also been shown as southern boundary of the property, which has been dealt with under Exs.A.6 and A.9 apart from the common wall on the southern side, the defendants cannot claim any right. Therefore viewing from any angle, the Court can very well come to a conclusion that the suit first schedule is a common wall and in which both the plaintiff and defendants are having common ownership. https://hcservices.ecourts.gov.in/hcservices/ 4 17. The first appellate Court has dismissed the suit simply on the ground that the present suit is bad for non-joinder of necessary party. Since the suit second schedule has been exclusively allotted to the share of the plaintiff under Ex.A.2 and since he has become absolute owner of the same, the plaintiff is having locus standi to institute the present suit and therefore the finding given by the first appellate Court is totally erroneous and further the first appellate Court has dismissed the suit on the basis of the measurements given in the Commissioner's Reports and Plan. 18. It has already been pointed out that as per the boundaries given in Exs.A.6 and A.9, the predecessors in title of the defendants are having right, title and interest over the property which situates immediately on the northern side of the disputed wall, which has been shown as a common wall and therefore the dismissal of the suit by the first appellate Court is totally erroneous. Since the dismissal of the suit by the first appellate Court is totally erroneous, the substantial questions of law raised in the present second appeal on the side of the appellant/plaintiff are really having substance. 19. In fine, this second appeal is allowed without costs at the stage of admission and the Judgment and decree passed in Appeal Suit No.22 of 2010 by the Sub Court, Kovilpatti are set aside and the Judgment and decree passed in Original Suit No.49 of 2007 by the District Munsif Court, Kovilpatti are restored. Consequently, connected Miscellaneous Petitions are closed. smn Sd/- Assistant Registrar[Crl side] /True copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Kovilpatti. 2.The District Munsif, Kovilpatti. +1 cc to Mr.Rajesh Saravanan, Advocate SR.No.19928. +1 cc to Mr.S.Ramasamy, Advocate SR.No.19947. S.A(MD)No.258 of 2011 and M.P(MD)Nos.1 and 2 of 2011 Dated:24.06.2011 4P/5C RPB 19.07.2011 https://hcservices.ecourts.gov.in/hcservices/