Narayanaswamy Naicker v. Rukmani Ammal — 1998 DIGILAW 99 (MAD)

Judgment :- 1. The defendant, who has lost in both the courts below, is the appellant in this Second Appeal. 2. One Chinna Azhagammal filed a suit in O.S. No. 96 of 1991 on the file of the Court of the District Munsif, Aruppukkottai. Pending suit she died. Therefore, the daughters of the said Chinna Azhagammal, the respondents herein, came on record as the plaintiffs 2 and 3 in the said suit. 3. The said suit was filed for a declaration that item No. 1 of the suit properties absolutely belongs to the plaintiffs and the item No. 2, a wall, is the common property of both the plaintiffs and the defendant, for a permanent injunction restraining the defendant/appellant in respect of both the items, and for a mandatory injunction directing the appellant to remove the windows put up on item No. 2, which is a common property. 4. The suit was contested by the appellant inter aha contending that item No. 2 wall is his absolute property and item No. 1 is the common lane belonging to both the plaintiffs and the defendant. 5. The trial court, on consideration of the evidence both oral and documentary, decreed the suit in favour of the plaintiffs accepting the case. Aggrieved over the same, the defendant filed an appeal in A.S. No. 178 of 1996 on the file of the court of Subordinate Judge, Virudhunagar and the same also was dismissed confirming the decree and judgment of the trial court. Hence, the Second Appeal. 6. Mr. Satish Parasaran, appearing for the appellant herein in this Second Appeal, raised the following contentions: — (1) The trial court, without taking the actual measurements of the properties involved, decreed the suit of the plaintiffs by not properly appreciating the evidence on record and merely relying upon certain boundary recitals. (2) The courts below have not properly considered Exs. B-1 and B-2. In an earlier suit filed by one Ramasamy against the appellant, the exclusive right of the appellant in respect of the continuation of wall of item No. 2 on the northern side portion of the appellants property has been confirmed. Therefore, the courts below ought to have found that item No. 2 wall, which is a continuation of the wall, the subject-matter of the earlier suit, is the exclusive property of the appellant. Therefore, the courts below ought to have found that item No. 2 wall, which is a continuation of the wall, the subject-matter of the earlier suit, is the exclusive property of the appellant. (3) When rival claims were made as to whether a particular property is a common one or not, it is only the actual measurements of the adjacent properties will be the vital consideration. In this case, the courts below without considering the actual measurements, had determined the suit. The courts below ouglit to have directed the Advocate-Commissioner to submit a report after taking due measurements and drawing a sketch with reference to the documents available on record. 7. On the basis of the above submissions, the learned counsel for the appellant mainly contended that the appreciation of the evidence available on record by the courts below has not been properly done and that therefore, the interference of this Court is warranted. 8. The suit by the plaintiffs is for declaration and permanent injunction in respect of two items of the properties and for mandatory injunction directing the defendant to remove the windows put up on the common wall. On behalf of the plaintiffs, the plaintiffs 2 and 3 were examined as P.Ws. 1 and 2. through whom Exs.A-1 to A-6 were marked. On the side of the defendant, the defendant examined himself as D.W.1 and marked Exs.B-1 to B-5. Two other documents, such as Exs.C-1 and C-2. the Advocate-Commissioners report and the plan were also marked. 9. The trial Court, on meticulous consideration of these oral and documentary evidence adduced by both the parties, decreed the suit as prayed for. 10. The case of the plaintiffs is that the suit item No. 1 is their absolute property and item No. 2 is the common wall. Per contra, the case of the defendant is that item No. 2 wall is his absolute property and item No. 1 is the common lane. 11. According to the plaintiffs, the suit properties and the properties situate on the west of the suit properties originally belonged to one V.T. Perumal Naicker. It was a cowshed then. At that time, item No. 2 was the eastern wall of the cowshed and the western wall of the property of the defendant. After the death of the said V.T. Permal Naicker, the cowshed was possessed and enjoyed by his son Sithama Naicker. It was a cowshed then. At that time, item No. 2 was the eastern wall of the cowshed and the western wall of the property of the defendant. After the death of the said V.T. Permal Naicker, the cowshed was possessed and enjoyed by his son Sithama Naicker. After him, the said property was enjoyed by his daughters Chinna Azhagammal and Periya Azhagammal. 12. In the partition, Chinna Azhagammal took the eastern side and Periya Azhagammal took the western side of the said property. In January 1990 they started construction of a new house by removing the cowshed. Since the eastern side which was allotted to Chinna Azhagammal (first plaintiff) had common walls on the eastern, western and northern sides, for the purpose of enjoyment of air, she left 3 feet on the eastern side of her property and raised a wall. At that moment, the defendant proceeded to raise the height of the common wall, that is, item No. 2 and put up a floor therein and also put up windows on the upper and lower sides of the common wall, despite the objection raised by the plaintiffs. Hence, the suit had been filed for the reliefs referred to above. 13. Even according to the defendant, he owns the southern portion of his house by ancestral right and the northern portion by right of purchase. Though the case of the defendant was that the windows were put up in item No. 2 in 1950, the defendant in Ex.B-4 admitted that the same was constructed in the year 1989. 14. Ex.A-2 is the partition deed executed between the defendant and his brother on 16.9.1949. As per the recital of this document, item No. 2 is the common wall enjoyed by both the plaintiffs family and the defendants family. When D.W.1 was cross examined with reference to Ex.A-2, he did not give satisfactory explanation with reference to the said recital. It is not the case of the defendant that such a document had not been executed at all. 15. In Ex.A-1, the document executed between one Azhagarsamy Naicker and brother of the defendant, also it is mentioned that item No. 2 is a common wall. Even with reference to this document, the genuineness of the same has not been questioned. In Ex.A-3 dated 11.6.1976 also the similar recital is found available. 16. 15. In Ex.A-1, the document executed between one Azhagarsamy Naicker and brother of the defendant, also it is mentioned that item No. 2 is a common wall. Even with reference to this document, the genuineness of the same has not been questioned. In Ex.A-3 dated 11.6.1976 also the similar recital is found available. 16. In the light of the above evidence, the trial court and the lower appellate court correctly did not accept the evidence of the defendant, who stated that the windows were constructed in the year 1950 in the wall, which exclusively belongs to him. 17. Moreover, Ex.C-1, the Advocate-Commissioners report and Ex.C-2, the plan also would support the case of the plaintiffs. Both the courts below have elaborately considered the materials and arrived at the factual conclusion on the basis of the appreciation of evidence that the plaintiffs case is true. Therefore, this Court cannot go into the question of factual aspects in the Second Appeal. 18. It is contended by the counsel for the appellant that Exs.B-2 and B-3, the Judgments were given in respect of the wall situated on the northern portion of the defendants house, which is a continuation of item No. 2. As pointed out earlier, the property of the defendant adjoining the common wall item No. 2 is admittedly an ancestral property, whereas the wall, the subject-matter of the earlier suit contested by one Ramasamy, is situated in the property, which was purchased by the defendant. 19. In the light of the evidence adduced in the earlier suits, namely, O.S. Nos. 153/90 and 264/90, the trial court had come to the conclusion that the said wall was not a common wall. The finding given in the said suits would not in any way help the defendant in this suit, as the finding arrived at in the instant suit by the trial court, confirmed by the lower appellate court, is purely on the basis of the materials placed by the plaintiffs in this case. It is also relevant to note that the plaintiffs were not the parties in the said suits. 20. The counsel attacked the decree and judgment of the courts below on the ground that the Advocate-Commissioners report has been accepted without asking him to take measurements of the suit properties. 21. In this connection, I must point out the evidence of D.W.1 in the cross-examination. He says (Tamil). 20. The counsel attacked the decree and judgment of the courts below on the ground that the Advocate-Commissioners report has been accepted without asking him to take measurements of the suit properties. 21. In this connection, I must point out the evidence of D.W.1 in the cross-examination. He says (Tamil). On reading of the evidence adduced by P.Ws.1 and 2 and the documents and the judgments of the courts below, I am of the view that the submission made in this respect may not have any impact on the case of the plaintiffs. 22. In fact, there is no material to show that the defendant filed any objection to the report of the Advocate-Commissioner before the trial court. He has also not made any attempt either before the trial Court or before the lower appellate court to make out an application to direct the Advocate-Commissioner to again visit the spot and for taking actual measurements. 23. Therefore, in the light of the elaborate discussion of the factual aspects by both the courts below, which came to the correct conclusion, I do not find any substantial question of law, so as to interfere with the findings on the facts arrived at by both the courts below. 24. The learned counsel submitted an authority in Surinder Kumar and another v. Ishwar Dayal and another ( 1996 (3) S.C.C. 103 ) in support of his contention. In that case it is held that the decree passed earlier became unenforceable and unexecutable since there was an altered situation after the decree was passed and the appellants in the said case had constructed a separate wall in their own land and opened the window. This would not help the appellant in this case, in view of the fact that the finding given by both the courts below that the windows have been put up in the common wall. 25. The Apex Court, while settling the legal position with regard to the scope of interference in the Second Appeal, would hold as follows: — “Even according to the High Court, the point urged on behalf of the appellant was only a “legal plea” though no specific plea was taken or no precise issues were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in Second Appeal. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in Second Appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section (5) of section 100 C.P.C. Under the proviso, the Court should be “Satisfied” that the case involves a “Substantial question of law” and not a mere “question of law” It is thus clear that unless there is a substantial question of law the Second Appeal could not be sustained. 26. In the result, the Second Appeal fails and the same is dismissed, at the admission stage itself.