Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 796 (MAD)

Mahalakshmi Ammal. v. Kandaswamy and another

2005-04-29

S.K.KRISHNAN

body2005
JUDGMENT: Aggrieved by the judgment and decree dated 4.8.1993 passed in A.S.No.17 and 18 of 1993 by the learned District Judge, Salem, confirming the judgment and decree passed in O.S.No.1566 of 1984 and 1402 of 1992 dated 27.4.1992 by the learned District Munsif Court Salem, the plaintiff in O.S.No.1402 of 1984 and defendant in O.S.No.1566 of 1984 has filed the above second appeals. 2. The facts leading to the filing of these appeals are as follows: (a) Originally entire property belonged to the family of one Mannnar Achari and Chandriah Achari, who are brothers. After the death of Chandriah Achari, Mannar Achari and the widow of Chandriah Achari and her children entered into a partition deed on 19.5.1942, whereby the suit property was allotted to Chellammal and her sons.The property referred in the rough plan as DGFH was allotted to Mannar Achari, which was purchased by the defendant. Chellammal and her sons sold the entire property ABCD together with the lane CEFG to the plaintiffs. Thereafter, the defendant demolished the old structure in DGFH and constructed a new house.When the defendant began to insert pipes in the GF wall, through which she wanted to drain the wastage water on to the lane CEFG.. The defendant has absolutely no right in the lane CEFG . In the above circumstances, the plaintiffs as well as the defendant filed the above suits. (b) Denying the averments made in the plaints, the defendants have filed a written statement and prayed for dismissal of the suits. 3. On the basis of the oral and documentary evidence, the trial Court decreed the suit in O.S.No.1566 of 1984, whereas it dismissed the suit in O.S.No.1402 of 1984. The lower appellate Court confirmed the judgment and decree of the trial Court. Hence, the present second appeal. 4. The second appeal was admitted on the following substantial question of law: (a) Whether the Courts below are right in holding that the respondents are not entitled to the suit lane, when under Exs.A-3 and A-4 they have acquired only a right of way over the same? Hence, the present second appeal. 4. The second appeal was admitted on the following substantial question of law: (a) Whether the Courts below are right in holding that the respondents are not entitled to the suit lane, when under Exs.A-3 and A-4 they have acquired only a right of way over the same? (b) Whether the Courts below are right in holding that the appellant herein is not entitled to the suit land, when the description of the concerned property in Exs.B-1, B-4, B-5 and B-6 clearly indicate that the suit lane was the property of Mannar Achari and was sold by him to Gopal Pathar and that the latter has sold the same to the appellant herein? 5. Heard both sides. 6. It is to be noted that aggrieved against the common judgment and decree in A.S.Nos.17 and 18 of 1993, passed by the learned District Judge, Salem, these two appeals have been preferred by the same person, namely, Mahalakshmiammal. 7. The learned Principal District Judge after elaborately discussing the facts and connected documents produced on either side accepted the case of the respondents in both the appeals and accordingly, the learned Judge disposed of the above said two appeals in favour of the respondents. 8. It is seen that initially Mahalakshmiammal purchased a piece of land with tiled house from one Gopal Pather under Ex.B-3 dated 3.5.1975 and thereafter, she put up some construction in that land by demolishing the old house, which is shown as DGFH in the rough plan. The dispute arose between Mahalakshmiammal and the defendants only with regard to the lane, which is situated on the eastern side of the plaintiff’s land, which is shown as CEFG in the rough plan. The case of Mahalakshmiammal is that she purchased the property from Gopal Pathar along with the lane CEFG portion. In that portion Kandaswamy and Perumayeeammal are entitled to use the lane for reaching Subramanyapillai street which is lying east west on the northern side to the house of Mahalakshmiammal. 9. The said Kandaswamy and Perumayee-ammal have no other right over that lane except the easementary right and therefore, they are not entitled to claim any right or interest over the said lane. 9. The said Kandaswamy and Perumayee-ammal have no other right over that lane except the easementary right and therefore, they are not entitled to claim any right or interest over the said lane. The case of Mahalakshmiammal is that when she attempted to fix cement pipes on the eastern wall of her house to drain wastage water into the Municipal drain on the northern side of her house, the defendants objected to the same and the plaintiff could not fix the pipes.Further, the case of Mahalakshmiammal is that she constructed the house leaving one foot of land from GF point. Hence, she approached the Court for the relief of permanent injunction. 10. Further, the contention of the Mahalakshmi-ammal’s that even the predecessors in title, the Mannar Achari also got the said right and the same right was passed on to the Gopal Pather under Ex.B-3. The said Gopal Pather has got the same right and enjoyed the same from 1949. Mannar Achari under Ex.B-5. sale deed. 11. The contention of the Mahalakshmiammal is that the said Mannar Achari also has got the same right over the suit property under Ex.B-1 (partition deed). In these circumstances, it is contended by Mahalakshmiammal that Kandaswamy and Perumayeeammal never exercised any right or interest to claim any relief in respect of the suit property. Therefore, the said Mahalakshmiammal filed the suit in O.S.No.1402 of 1984 and sought the relief of permanent injunction. 12. It is seen that Kandasamy and Perumayee purchased the property from the wife of Chandraiah as well as her sons under Exs.A-3 and A-4 dated 30.4.1979 and 4.7.1980. 13. It is stated that Perumayeeammal urchased the said property from the sons of Chandraiah Achari. Likewise her husband Kandasamy had purchased the property from Chellammal wife of Chandriah Achari. They contended that the suit property referred in the plaint CEFG is exclusively belonging to them. The right over the said lane has been exercised by them from the date of purchase of the same from Chellammal and her sons. 14. It is contended by them that the suit property referred to in the rough plan is the part and parcel of the property which was allotted to the wife of Chellammal and her sons under partition deed Ex.B-1 dated 19.5.1942. 15. 14. It is contended by them that the suit property referred to in the rough plan is the part and parcel of the property which was allotted to the wife of Chellammal and her sons under partition deed Ex.B-1 dated 19.5.1942. 15. It is contended by them that after the purchase of the same from Chellammal and her sons, they enjoyed the property exclusively for reaching the Subramanyapillai street. Therefore, they would contend that since their possession and enjoyment is being disturbed by Mahalakshmiammal, they instituted the suit in O.S.No.1566 of 1984 for the relief of declaration and injunction and mandatory injunction to safeguard their right and interest over the suit property. 16. For the sake of convenience, the parties will be referred as arrayed in O.S.No.1566 of 1984. 17. Now the only point is to be decided in this case is whether the appellant has exercised the right over the suit property, namely, CEFG portion and is entitled for the relief of permanent injunction. 18. It is seen that both the parties sought for different reliefs in respect of the same property. As already discussed above, according to the defendant, she exercised the same right from Gopal Pathar under Ex.B-3. The said Gopal Pathar has got the same right and enjoyed the same for over many years under Ex.B-5. 19. It is contended by the defendant that the said right has come to Mannar Achari while effecting partition among Chellammal and Mannar Achari. The said partition was effected under Ex.B-1. 20. The learned counsel appearing for the appellant would vehemently contend that the said property for enjoyment of the appellant has been given under Ex.B-3. The said right has categorically referred to under Ex.B-1 while demarcating the shares allotted to respective parties while effecting partition. It is stated by the learned counsel that under Ex.B-1, B portion was allotted to Mannar Achari. Therefore, the appellant is entitled to exercise the said right against the defendants in respect of CEFG portion. The same contention was raised by the respondent’s counsel that the respondent is the owner of the property and the portion claimed by the appellant for the relief of permanent injunction was allotted to the wife of Chandraiah, namely, Chellammal and her sons under Ex.B-1. While demarcating the respective shares and rights to the parties concerned under Ex.B-1. ‘A’ marked portion was allotted to Chellammal and her sons. 21. While demarcating the respective shares and rights to the parties concerned under Ex.B-1. ‘A’ marked portion was allotted to Chellammal and her sons. 21. It is pointed out that such right has been categorically referred in Ex.B-1.In such circumstances, the respondents are entitled to get the relief of declaration and permanent injunction in respect of the suit property. 22. Further, the learned counsel would point out that the learned Principal District Judge has elaborately dealt with all these points and held that the respondents are entitled to get the relief. Therefore, no interference is needed against the decision arrived at by the learned Principal District Judge, Salem. 23. Since the appellant is very much contended that the suit property, namely, CEFG portion referred to in the rough plan is part and parcel of that property purchased by the appellant/defendant and therefore, the appellant/ defendant is entitled for the relief. 24. It is pointed out by the learned counsel appearing for the appellant that the said right is also referred to in Ex.B-1. For arriving a just decision in this case, it is pertinent to refer to the recitals found in Ex.B-1 with regard to allotment of respective shares to the parties. As already discussed above, under Ex.B-1, ‘B’ portion of the property was allotted to Mannar Achari. 25. On a careful perusal of the recitals referred to in Ex.B-1, it would reveal that the right of enjoyment as claimed by the appellant in the said lane is not at all included in the portions allotted to the appellant while allotting the shares. It is to be seen that it is categorically referred that the portion allotted to Mannar Achari is lying on the western side of the said lane, therefore, it is referred to in the said document as This point is also categorically discussed by the learned Principal District Judge, Salem. 26. As already discussed above, the learned Judge has categorically held that the said toilet land is situated on the western side of the said lane which also include the part and parcel of the appellant share allotted under Ex.B-1. Therefore, the learned Principal District Judge, considering the recitals under Ex.B-1 and other connected circumstances stated by the respondents has categorically concluded that the appellant/defendant is not entitled to sought for the relief of permanent injunction against the respondent/plaintiff in respect of CEFG portion. 27. Therefore, the learned Principal District Judge, considering the recitals under Ex.B-1 and other connected circumstances stated by the respondents has categorically concluded that the appellant/defendant is not entitled to sought for the relief of permanent injunction against the respondent/plaintiff in respect of CEFG portion. 27. Per contra, the learned counsel appearing for the respondent would vehemently contend that while demarcating the allotment of respective shares to the parties referred to under Ex.B-1 the said portion was allotted to Chellammal and her sons for their exclusive enjoyment. After enjoying the same, the said Chellammal and her sons subsequently, sold out the properties to the respondents/plaintiffs under Exs.A-3 and A-4. 28. In this connection, the learned counsel appearing for the respondents/plaintiffs would point out that the said right has been categorically referred to in Ex.B-1. In such circumstances, for arriving a just decision in this case, it is pertinent to refer the relevant portion. As already discussed above, under Ex.B-1 ‘A’ schedule property was allotted to Chellammal and her sons. 29. On a careful analysis of the above stated recitals referred to in the said document, it would categorically reveal the fact that while allotting the respective shares in A schedule, several items and enjoyments were given to Chellammal and her sons under Ex.B-1. It is to be noted that under Ex.B-1, in A schedule property while effecting partition under Ex.B-1 certain properties were not only allotted to Chellammal and her sons, but also given the right of enjoyment over the suit property. Therefore, the respondents/plaintiffs are entitled to get the relief of declaration and enjoyment over the said property referred to in the rough plan. 30. Further, learned counsel appearing for the respondents/plaintiffs would submit that the said fact has been categorically proved from the report submitted by the Advocate Commissioner under Ex.C-1. 31. In this regard, the learned counsel appearing for the respondent/plaintiff would submit that the said fact has been established and proved by the Commissioner’s report. It is pointed out by the learned counsel that while effecting partition between Mannar Achari and the wife of Chandraiah and her sons under Ex.B-1 Mannar Achari was allotted to the land and building measuring to the the extent of 28 x 72 on the northern side of Subramanyapillai Street, whereas Mannar Achari was allotted to the extent of 72 ft, which is lying east to west. While measuring the said area by the Advocate Commissioner, he has stated in his report as follows: "I was asked to measure the entire east-west measurements on the north. I find the entire east-west measurements including the lane portion is 75.6 ft. 32. On a careful analysis of the Commissioner’s report and measurements referred to under Ex C-1, wherein, it is stated that including the total length of the land portion is 75.6 ft. which includes the land. Actually, the predecessors in title, namely, Gopal Pathar and Mannar Achari were entitled to only 72 ft. on east to west. Therefore, more than 72 ft. of land is not entitled to Mannar Achari and to the subsequent purchaser. Therefore the appellant, who is the subsequent purchaser from Gopal Pather under Ex.B-5, is not entitled to claim any right over the remaining portion, i.e., CEFG portion for which she is not at all entitled to claim any right or interest over the said portion. In such circumstances, the learned counsel appearing for the respodents/plaintiffs would submit that without basing any right or interest over the suit property, the appellant/defendant approached the Court and sought for the relief of permanent injunction against the respondent/defendant for which she has no right or interest. 33. It is pointed out by the learned counsel that this fact is also satisfactorily discussed by the learned Principal District Judge, while arriving at a just decision in this case. In such circumstances, the learned counsel would point out that there is no case for the appellant to interfere with the decision arrived at by the learned Judge. 34. In the light of the above discussion, this Court is of the view that the appellant/defendant is not at all entitled to the claim of permanent injunction against the respondents in respect of CEFG portion as referred in the rough plan. 35. On a careful analysis of the entire evidence adduced by either side and also considering the relevant documentary evidence, this Court is of the view that the appellant/defendant is not entitled for the relief of permanent injunction against the respondent/plaintiffs in respect of the suit property. 36. In result, both the second appeals fail and are dismissed. No costs.