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2000 DIGILAW 851 (MAD)

Maya alias Hira Bai (Died) & Others v. Prema

2000-08-25

V.KANAGARAJ

body2000
Judgment : 1. Theabove second appeal is directed against the judgment and decree dated 3. 1989 made in A.S.No.15 of 1987 by the Court of Additional Subordinate Judge, Vellore thereby reversing the judgment and decree dated 29. 1986 made in O.S.No.115 of 1983 by the Court of District Munsif, Ranipet. 2. Adverting to the facts and circumstances encircling the whole affair, what comes to be known is that it is a suit filed by the respondent herein against the deceased first appellant herein before the trial court for a permanent injunction restraining the defendant and her men from interfering in any manner with the plaintiffs peaceful possession and act in bridging the fallen portion of wall ‘AB’ marked in the plan and for costs. The suit property is a house bearing D.No.33, Jagannatha Mudaliar Street, Arcot. 3. In the plaint filed before the trial court, the respondent/plaintiff alleged that she owns a total length East to West 33 ½ yards including the Western wall shown as ‘NL’ in the rough plan and it is very many decades old and still in existence and likewise there is a Northern wall extending East to West from the road side to the Western wall NL end and between portions ‘AB’ marked in the plaint plan and that as there had been wreckage, the plaintiff arranged to bridge the fallen portions, but the deceased first appellant/defendant and her man unduly prevent and interfere with the absolute rights of the plaintiff and hence the suit. 4. The deceased first appellant/defendant filed a written statement before the trial court thereby besides generally denying the allegations of the plaint, she submitted that the suit property is vague and indefinite in nature and devoid of particulars; that the plan relied upon by the plaintiff is not pertaining to the property according to the sale deed dated 23. 1948 or on the basis of the will relied upon by her or on the basis of 12. 1948 or on the basis of the will relied upon by her or on the basis of 12. 1974 settlement deed; that the notice issued by the Settlement Officer of Chingleput is also not to the disputed property, as alleged in the plaint plan and the same is not binding on the defendant since she is not a party to those proceedings; that the property described in the deeds filed by the plaintiff is not pertaining to the disputed AB suit property and the plaint plan is drawn as a self serving document to grab the property of the defendant, which is in her possession and enjoyment till date; that irrespective of measurements, the defendant is in enjoyment of her property as her vendors were, on the basis of boundaries mentioned in her deeds and thus the defendant has perfected her title to the property purchased by her as per boundaries by enjoying the same for more than a statutory period; that there was no wall at any time as described in the plaint plan marked as AB; that the plaintiff wants to annex the Zone marked portion of the plan filed by the defendant by trying to building a new wall; that previously there was a wall which was built in mud from South to North in order to demarcate the plaintiffs backyard and the defendants backyard, which in the course of time fallen; that the plaintiff wants to construct a new wall in AB portion of the plan only after obtaining a temporary injunction as a covering protection to her unlawful act and misdeeds; that the plaintiffs property and defendants property are in different streets and by their way of backyard alone, they are neighbours; that the plaintiff has not applied for any municipal permission to make any minor repairs or construct any wall; that the plaintiff is trying to trespass into the defendants backyard; that the question of inconvenience by granting a temporary injunction is only to the defendant because the plaintiff wants to annex the property of the defendant over which she has no right or title; that at any time, the plaintiff was not in possession of the defendants backyard; that the plaintiff is estopped by her own conduct from filing this suit by allowing the defendant to enjoy the property purchased by her as per the sale deed boundaries of the defendant; that the suit is barred by limitation; that the suit is not maintainable since the plaintiff has not sought for any declaration; that the court-fee paid is also not correct and there cannot be permanent injunction over a wall which is not in existence; that the well is in the defendants portion of property and the backyard of the defendant alone is the way for using the well and the backyard of the defendants house is the easement of necessity for using the well and that there is no cause of action for the suit. On such grounds, the defendant prayed to dismiss the suit with costs. 5. Based on the facts and circumstances as pleaded by parties, the trial court having framed 16 issues, had conducted the trial of the case with due opportunity for both parties to be heard, wherein on behalf of the plaintiff, three witnesses were examined as P.Ws.1 to 3 and five documents were marked as Exs.A-1 to A-5 and on behalf of the defendant, two witnesses have been examined as D.Ws.1 and 2 and three documents have been marked as Exs.B-1 to B.3. 6. Thetrial court having appreciated the evidence thus placed on record in the context of the facts and circumstances of the case in its own way had ultimately dismissed the suit as per its judgment dated 29. 1986. 7. Aggrieved, the plaintiff in the suit had preferred an appeal in A.S.No.15 of 1987 before the Court of Additional Subordinate Judge, Vellore and the said first appellate court having framed the points for determination, viz., “1. Whether the portion shown as ‘AB’ in the plan and the property lying on the South of the ‘AB’ portion belong to the plaintiff. 2. Whether the plaintiff is entitled to permanent injunction. and 3. What relief, if any, is the plaintiff entitled to. had allowed the appeal in full thereby setting aside declaring the plaintiffs title to the suit property and further granting the relief of permanent injunction thus setting aside the judgment and decree passed by the trial court as a result of which, the respondent therein, who is the defendant before the trial court has now come forward to file the above second appeal on certain grounds as brought forth in the grounds of appeal and the same has been admitted for determination of the following Substantial Question of law: Whether the lower appellate court was right in holding that the plaintiff is entitled to the relief of declaration of title, without a prayer to that effect and without payment of court-fee for that relief. 8. 8. Discussing the merit of the case, the trial court considering the rival contentions of the parties that so far as the property shown as ‘AB’ in the plaint plan and the other property lying on the South of ‘AB’ portion are concerned, though they have been claimed by the plaintiff to be belonging to her and that there had been a wall in the ‘AB’ portion of the plaint plan and by efflux of time, it extinguished and prayed for a permanent injunction restraining the defendant from in any manner obstructing the plaintiff from erecting a wall in the ‘AB’ portion of the plaint plan, the defendant would point out that the property belonging to the defendant is lying on the North to the ‘AB’ portion of the plaint schedule of properties and that the ‘AB’ portion of the property and the other lying on the South of the ‘AB’ portion are in enjoyment of the defendant, that there had been no wall ever in existence in the ‘AB’ portion as it is claimed on the part of the plaintiff; that only with intent to put up a well at ‘AB’ portion of the suit property, the plaintiff has resorted to get an order of injunction against the respondent and that the plaintiff is not entitled to such a relief at all, had ultimately arrived at the conclusion that the plaintiff had absolutely no right either in the ‘AB’ portion or in the portion South of it and had dismissed the suit accordingly. .9. The appellate court probing into the question in an elaborate manner and in detailed consideration of Exs.A-1 to A-5 and Ex.B-1 and in further consideration of the Commissioners report and plan, which have been marked as Exs.C-1 and C-2, and the measurements of the properties mentioned therein, would arrive at the conclusion that pertaining to the measurements shown in those documents, the portions shown in the plaint plan as ‘AB’ and the other land lying South to the same are belonging only to the plaintiff. The learned first appellate Judge further having a comparative study of the plaintiffs exhibits in Exs.A-1 to A-5 with that of the defendants in Ex.B-1 would arrive at the categorical conclusion that those portions belong only to the plaintiff and that there is no iota of truth in the claim of the defendant that those portions belong to her and therefore, the defendant has absolutely nor right to obstruct the plaintiff in any manner from putting up any type of construction much less a wall and thus has concluded that the plaintiff is entitled to the relief of declaration. The lower appellate court would also ultimately conclude that the portion of the property shown as ‘AB’ in the plaint plan and the portion lying South of this ‘AB’ portion are absolutely belonging to the plaintiff and in her possession and enjoyment and therefore holding that the plaintiff since being entitled to and in possession and enjoyment of the suit property, is entitled to the permanent injunction as prayed for. 10. During arguments, the learned counsel appearing for the appellants would submit that the suit is for permanent injunction and there is no prayer for title that the trial court dismissed the suit on that score; that there had been a wall, which extinguished due to efflux of time and at that score the plaintiff had come forward to file the suit praying for permanent injunction restraining the defendant from interfering with the construction of such a wall in the Property shown as ‘AB’ in the plaint plan, but the trial court having found that the plaintiff was not entitled to nor in enjoyment of the said portion and the other portion lying on the South, dismissed the suit but on the contrary, the first appellate court having gone out of scope of the suit had declared that the plaintiff is entitled to the suit property besides being in possession and enjoyment of the same and hence had allowed the appeal preferred by the plaintiff further decreeing the suit. The learned counsel for the appellants would say that even now, the defendants have no objection for effecting necessary amendments to the plaint to include the prayer for declaration of her title to the suit property but without there being either pleading or prayer to the effect of declaration of her title, the appellate court should not have gone out of bounds to decide the title also in favour of the plaintiff, much less without payment of any court-fee. 11. On the part of the respondent, no one appeared much less the respondents counsel and hence this Court is left with no option but to decide the above second appeal with materials made available on record and upon hearing the arguments of the learned counsel for the appellants. .12. The only substantial question of law that has been framed at the time of admitting the above second appeal is whether the lower appellate court was right in holding that the plaintiff is entitled to the relief of declaration of title, without a prayer to that effect and without payment of court-fee for that relief’. If this Court has to answer the above substantial question of law, looking at the appeal, from the angle of approach of the first appellate court, that excepting for the objection of having declared the title, no strong plea has been put forward on the part of the appellant herein regarding the appreciation of evidence and arriving at the conclusion by the first appellate court in granting the relief as sought for in the plaint to the effect of permanent injunction. There is no denying of the fact that the first appellate court has laboured hard to establish the entitlement and possession of the plaintiff to the suit property. It has further found that the defendant is in no manner either entitled to or in possession and enjoyment of the suit property and hence strictly adhering to the substantial question of law, as framed herein, if the same is to be answered, without a prayer in the plaint and the plea put forwarded to the relief of declaration of title to the suit property, the court cannot grant such a relief. But, however, there could be nothing wrong in so far as the first appellate court arriving at the conclusion to grant the permanent injunction thus restraining the defendant from in any manner interfering with any of the rights or activity intended to be carried out in the suit property by the plaintiff, since according to the conclusions arrived at by the first appellate court, those properties are not only belonging to the plaintiff but also in her possession and enjoyment and thereby concluding that she is entitled to the relief sought for. 13. Therefore, in so far as that part of the relief granted by the first appellate court declaring the title to the suit property, since the same has not been either pleaded, or prayed for on the part of the plaintiff, that part of relief granted becomes liable to be set aside. Regarding the other relief pertaining to the permanent injunction, as prayed for in the suit by the plaintiff, the same is upheld and confirmed. 14. In result, the above second appeal is partly allowed, as indicated in the preceding paragraph. 15. The plaintiff is only entitled to the relief of permanent injunction restraining the defendant from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the ‘AB’ marked portion in the plan annexed to the plaint or from obstructing her from erecting any wall in the ‘AB’ marked portion shown in the plaint plan. 16. However, in the circumstances of the case, there shall be no order as to costs.