IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.4.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.339 and 340 of 2011 1.R.Gowri 2.Jayasankar 3.Paranthaman 4.Kanthavel 5.Kanjana 6.Poongothai 7.Anandan ... Appellants in S.A.No.339 of 2011 Anandan ... appellant in S.A.No.340 of 2011 vs. 1.T.Revathi ...1st Respondent in both the second appeal 2.Selvaraj ...2nd respondent in S.A.No.339 of 2011 3rd Respondent in SA.340/11 3.Saroja ...3rd Respondent in S.A. No.339/11 and 2nd Respondent in S.A.340/11 These second appeals are filed against the judgement and decrees dated 23.4.2010 passed by the 3rd Additional City Civil Court, Chennai, in A.S.Nos.347 and 348 of 2009 confirming the judgement and decrees dated 28.1.2009 passed by the 14th Assistant City Civil Court, Chennai, in O.S.No.8614 of 2006 & O.S.No.6175 of 2006, respectively. For Appellant : Mr.M.L.Ramesh in both the S.As. For Respondents : Mr.Manickavel for R1 to R3 in both SAs. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT S.A.No.340 of 2011 was filed by the plaintiff in O.S.No.8614 of 2006 and S.A.No.339 of 2011 was filed by the defendants in O.S.No.6175 of 2006, inveighing the common judgement and decrees dated 23.4.2010 passed by the the 3rd Additional City Civil Court, Chennai, in A.S.Nos.347 and 348 of 2009 confirming the judgements and decrees dated 28.1.2009 passed by the 14th Assistant City Civil Court, Chennai, in O.S.No.8614 of 2006 & O.S.No.6175 of 2006, respectively, which were filed for obtaining injunctions and for partition, respectively. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these second appeals would run thus: (a) The following two suits emerged seeking the following reliefs: O.S.No.8614 of 2006: "a. To grant an order of permanent injunction restraining the 1st defendant her men, agents, servants or anybody else claiming under her from in any manner encroaching upon the eastern side of the portion of the 'A' schedule mentioned property measuring an extent of 26 feet on West to East and 35 feet South to North and thereby interfering with the peaceful possession and enjoyment of the property by the plaintiff. b. to grant an order of mandatory injunction direction the 1st defendant to remove the drainage connection which had been laid in the plaintiffs 'B' schedule mentioned property which is part of 'A; schedule mentioned property and also remove the encroachment of toilet and bathroom on the Northern portion of the 'A' schedule mentioned property; c. to pay the cost of the suit." O.S.No.6175 of 2006: "a. To divide the schedule mentioned property by metes and bounds into three equal shares and allot the plaintiffs equal 2/3rd share therein separately and delivering possession of such 2/3rd share to the plaintiff. b. To award the cost of the suit."(extracted as such) https://hcservices.ecourts.gov.in/hcservices/ (b) Written statements were filed by the respective defendants resisting the suits. (c) Whereupon issues were framed. Joint trial was conducted in both the suits. The plaintiff in O.S.No.6175 of 2006 commenced the adducing of evidence in both matters and on her side one T.Manivannan was examined as P.W.1 and Exs.A1 to A6 were marked. The 7th defendant in O.S.No.6175 of 2006, who is the plaintiff in O.S.No.8614 of 2006, examined himself as D.W.1 and Exs.B1 to B8 were marked. Exs.C1 to C4 were marked as Court documents. (d) Ultimately, by a common judgement, the trial Court dismissed the injunction suit O.S.No.8614 of 2006 filed by the appellant in S.A.No.340 of 2011 and decreed the suit O.S.No.6175 of 2006 filed by the first respondent herein to the effect that the first respondent herein/plaintiff there was entitled to 2/3 share. (e) Aggrieved by the dismissal decree of the suit in O.S.8614 of 2006, the plaintiff therein, filed the appeal A.S.No.347 of 2009 and as against the decree granting the relief in favour of the plaintiff in O.S.No.6175 of 2006, the defendants 1 to 7 in the said suit filed the A.S.No.348 of 2009. (f) By a common judgement, the first appellate Court dismissed both the appeals, confirming the common judgement and decrees of the trial Court. 4. Inveighing the judgements and decrees of the Courts below, these second appeals have been filed more or less on the same grounds and also suggesting the following substantial questions of law: "a. Whether the Courts below are correct in ignoring the admission made by the 1st respondent in Exhibit B3, with respect to the portion allotted to her by the vendors? b. Whether the Courts below are right in decreeing a suit for partition for division by metes and bounds and allotting portions to the parties, when the 1st respondent had taken delivery of specific portion of the property by metes and bounds, demolished the Superstructure and annexed the portion with her existing building? c. Whether the Courts below are right in decreeing https://hcservices.ecourts.gov.in/hcservices/ the suit for partition, when the oral partition between the parties had been established as admitted by the purchaser from the co-shares under Exhibit B3. d. Whether the Courts below are right in not considering Exhibit C1, and C2, the advocate Commissioner's report and sketch, which establishes that after purchase the 1st respondent demolished, the existing structure, constructed new structure by encroaching 5 feet over and above her purchase? e. Whether the Courts below are right in passing a preliminary decree by giving unidentified 2/3 share of the property, ignoring the fact that already the old structure on the 2/3rd share had been demolished by the 1st respondent herein? f. Whether the Courts below are right in decreeing the suit for partition and dismissing the suit for mandatory injunction and permanent injunction. When in final decree proceedings if the North side is allotted to the appellant it would cause hardship and loss to them since the building existed there was already demolished by the 1st respondent and the valuables are removed?" 5. Heard both sides. 6. After hearing both sides, the following substantial question of law is framed for consideration: "Whether the Courts below failed to allot the respective shares of the appellants and the respondents, by specifying the portions to which they are entitled, respectively, in the peculiar facts and circumstances of this case." 7. The learned advocates for both sides in all fairness and in unison would submit that the respondents herein happened to be the purchasers of 2/3rd share, in the entire suit property, virtually, by metes and bounds, so to say, on the Northern portion of the said property with the passage proceeding from Rajavelu Mudali Street, as found exemplified in the Commissioner's report Ex.C1, whereas, the appellants are satisfied with the Southern 1/3rd portion, abetting the road, de hors the said path way. 8. I recollect the well settled proposition of law that while passing the preliminary decree, normally, shares alone will be declared, leaving the rest to be demarcated in the final decree https://hcservices.ecourts.gov.in/hcservices/ proceedings. But, this is a singularly singular case, in which, parties themselves admit the factual position that after purchasing the 2/3 rd share from the sharers concerned, the respondents demolished the old building and raised a new building itself in the said Northern portion of the suit property. 9. The learned counsel for the respondents would submit that in fact, the dividing line between the 1/3rd share belonging to the appellants on the Southern side and the 2/3rd portion on the Northern side belonging to the respondents was not demarcated and that alone resulted in the suit. 10. I am of the view that in matters of this nature, even in the preliminary decree the said fact could be specified, whereupon during final decree proceedings, the Commissioner could be appointed, so as to demarcate the dividing line between the Southern 1/3rd from the Northern 2/3rd. The passage as found specified in the Commissioner's report shall also be made available for the respondents herein for their use of the 2/3rd portion. 11. By way of disambiguating the ambiguity, if any, it is also clarified, at the request of both sides, that the area covered by the 4 feet width path way shall be included, while calculating the 2/3rd share of the respondents and accordingly, during final decree it should be demarcated and allotted. 12. Regarding the injunction suit is concerned, absolutely there is no necessity and both the Courts below correctly dismissed the said suit. 13. Accordingly, the decree of the trial Court shall stand modified to the extent indicated above. Within a period of three months from the date of receipt of a copy of this order, the trial Court shall see to it that the final decree itself is passed. 14. In the result, S.A.No.340 of 2011 stands dismissed and S.A.No.339 of 2001 is partly allowed to the extent indicated above. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Msk https://hcservices.ecourts.gov.in/hcservices/ To 1. The III Additional Judge city civil court, Chennai 2. The 14th Assistant Judge City Civil court, Chennai 2 ccs to Mr.M.L. Ramesh, Advocate, Sr. 26394, 26395 2 ccs to Mr.R. Manickavel, advocate, Sr. 26687 S.A.Nos.339 and 340 of 2011 JRG (CO) kk 27/4 https://hcservices.ecourts.gov.in/hcservices/