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2012 DIGILAW 3045 (MAD)

V. Saraswathy v. S. Ganapathy

2012-07-16

T.RAJA

body2012
Judgment :- 1. The present Second Appeal has been directed against the soundness of the impugned judgment and decree passed by the first appellate Court. 2. The brief facts, which led to the filing of this second appeal are as follows: (i) The appellant herein is the defendant before the trial Court against whom, the suit was filed for permanent injunction to direct the defendant to remove all structures and construction already put up in the suit lane and for mandatory injunction to remove structures and construction in the suit lane through the officer of the Court; (b)for directing the defendant to restrain from proceeding any construction or structure of any kind in the suit lane (c) and also to pay the costs of the suit on the ground that the plaintiff purchased a portion of the property measuring 512 sq.ft in old Municipal Ward 24 New Ward 31 bearing Old Door No.154, new Door No.214 with T.S.No.Old 7/2910 new T.S.No.7/228 part under the sale deed dated 30.04.1973 for a sale consideration of Rs.10,000/- with a right to use the common lane for both the plaintiff and the defendant for walking, to take pipelines, drainage and also for white washing. (ii) It was further argued that on 30.10.1974, the plaintiff was constrained to execute a release deed in favour of the defendant, due to some unavoidable circumstances to release his right of using the common lane as passage by retaining his right to go to the open space so as to use the same for whitewashing the Western side of the wall and to put pipeline and drainage and also to use the common lane whenever he needs to do for any necessary repairs to his pipeline and drainage. Even within two months, when misunderstanding arose between the parties, the plaintiff cancelled the said release deed by executing another registered cancellation deed dated 2.12.1974. After the cancellation, when the plaintiff was prevented by the defendant to use the common lane even for whitewashing and repairing the pipelines and drainage lines, the plaintiff filed a suit for permanent injunction against the defendant from restraining the defendant from peaceful possession and enjoyment of the common lane situated on the West and South of the plaintiff's property in O.S.No.183 of 1995 on the file of the I Additional District Munsif, Coimbatore. The learned I Additional District Munsif, Coimbatore decreed the suit granting relief to the plaintiff with regard to carry out the repairs in the flush-out, drain line and whitewashing and to repair the East, West and North South compound walls by entering into the suit lane whenever such works are to be carried out as retained by him under the release deed Ex.A.7. However, in respect of other relief, the suit was dismissed. (iii) It was the further of the case of the respondent/plaintiff that when the plaintiff was enjoying sufficient air and light through the windows, ventilators and air-hole pipes situated on the Western wall of the plaintiff from the open space of the common lane, situated on the West and South of the property, the defendant herein prevented the plaintiff to use the common lane even for white washing, repairing of pipe lines and drainage. As a result, the plaintiff was constrained to file a suit in O.S.No.183 of 1975 on the file of the Principal District Munsif, Coimbatore in respect of the suit property for permanent injunction restraining the defendants from interfering with or obstructing the entry and use of the lane ABCD for repairing, plastering and whitewashing his walls on West and South of his Door No.214, Sukrawarpet Street for taking flush out lane, drainage and repairing the drainage in the said lane and also for declaring that the plaintiff is entitled to the right of entry in the said common lane and the same was decreed. The said decision was also confirmed in the appeal. Hence, the defendant is not legally entitled to put up any construction or superstructure in the said common lane. (iv) When the plaintiff took up the matter by way of filing an appeal in A.S.No.191 of 1979, the appeal was allowed by the first appellate Court holding that the plaintiff is entitled to go to the open space or passage once in six months for doing repairs and whitewashing the walls and whenever necessary to do any repairs on the pipe line and drainage line. It was further directed that the plaintiff must give clear notice of seven days to undertake to repair or whitewashing the wall. (v) When the matter stands as above, now, the defendant had put up three pillars obstructing the window and the pathway running in the Western wall for the purpose of air and light. It was further directed that the plaintiff must give clear notice of seven days to undertake to repair or whitewashing the wall. (v) When the matter stands as above, now, the defendant had put up three pillars obstructing the window and the pathway running in the Western wall for the purpose of air and light. Hence, a notice was issued to the defendant by the Coimbatorte Municipal Corporation in file No.52998/96/H.10, dated 27.5.1996 for such an unauthorised construction informing that the defendant is not entitled to put up any pillar in the common lane in question and the same was served on 31.05.1996. In spite of notice, when the defendant has continued to do the construction work till the completion of three pillars, the plaintiff filed a suit for the above mentioned reliefs. 3.(i) Opposing the said prayer, a detailed written statement was filed by the defendant in which, it is stated that the defendant owns the property adjacent to the plaintiff's portion. The entire property originally belonged to one common vendor. The defendant purchased the main portion of the building with specific measurements and description of the properties. Subsequently, the plaintiff purchased another adjoining portion of the defendant's property. The Western extreme of the property was treated as a common one for both the parties as per the sale deeds. The plaintiff on his own volition released all his rights in the lane in favour of the defendant. Later on, he changed his mind and cancelled the release deed. (ii) While so, the plaintiff as a building Surveyor had encroached into the property of the defendant and put up constructions thereby preventing light and air for the room in the portion of the building of the defendant. Hence, a suit in O.S.No.512 of 1975 was filed by the defendant and the same was decreed in favour of the defendant. As against the same an appeal was filed and in which, the first appellate Court permitted the plaintiff to whitewash and repair the walls of his building by going across the lane. But, the plaintiff has no title in the common lane which exclusively belongs to the defendant. (iii) It was also the case of the defendant that as the plaintiff is not having title of the common lane, he is not entitled to the relief of mandatory injunction or permanent injunction. But, the plaintiff has no title in the common lane which exclusively belongs to the defendant. (iii) It was also the case of the defendant that as the plaintiff is not having title of the common lane, he is not entitled to the relief of mandatory injunction or permanent injunction. Hence, the suit filed by the plaintiff has to be dismissed. 4. Under this background, the trial Court has taken up the matter for consideration. On considering the submissions made on either side and also considering the oral and documentary evidence available on record, the trial Court has finally come to the conclusion that the suit passage is a common passage. Further, in view of the completed construction of the three pillars in the common lane, which were already put up by the defendant, it was held that the plaintiff is not entitled for permanent and mandatory injunction to remove the pillars and the constructions and accordingly, it restricted the defendant not to put up any more construction in the common lane. Aggrieved by the part of the judgment and decree passed by the trial Court that the defendant had already completed construction of the three pillars, hence, the plaintiff is not entitled to permanent and mandatory injunction to remove the pillars, an appeal was filed before the Principal District Judge, Coimbatore. The first appellate Court granted the relief of mandatory injunction and permanent injunction in respect of removal of the superstructures and from the common lane in question against the defendant and allowed the appeal. Aggrieved by the same, the present second appeal has been filed. 5. Heard Mr.S.Silambanan, learned senior counsel appearing for the appellant/defendant and Mr.N.S.Varadachari for Mr.K.Ganesan, learned counsel appearing for the respondent/plaintiff. 6. At the time of admission of the above second appeal, the following substantial questions of law were formulated: "1. Whether in law the respondent/plaintiff's mere right of permissive entry into the suit lane as retained by him under Ex.A.3 disentitles the appellant/defendant from erecting a pillar therein and constructing a superstructure over it? 2. When the restrictive right retained by the respondent/plaintiff under Ex.A.3 grants a mere permissive entry to the suit claim for respondent/plaintiff for specific purpose, can the lower appellate court by enlarging such right confer upon respondent/plaintiff further additional rights?" 7. 2. When the restrictive right retained by the respondent/plaintiff under Ex.A.3 grants a mere permissive entry to the suit claim for respondent/plaintiff for specific purpose, can the lower appellate court by enlarging such right confer upon respondent/plaintiff further additional rights?" 7. The learned senior counsel appearing for the appellant/defendant has submitted that the appellant/defendant is the absolute owner of the common lane measuring to an extent of 10 ft. open space from the Northern side. Therefore, he has got right to put up pillars. He has further contended that the judgment passed in O.S.No.512 of 1975 dated 30.04.1973, which is marked as Ex.A.5 also supports the case of the appellant/defendant. The defendant had put up a roof over his house to avoid rain and direct sun light with a height of more than 10 feet and there is a sufficient gap in between the Western wall of the plaintiff and the defendant's roof for free light and air, therefore, it is wrong to say that there has been an obstruction of fresh air or light causing any prejudice to the plaintiff for using the common lane in question. Hence, he pleaded, the respondent/plaintiff is not entitled to the relief of mandatory injunction and permanent injunction against the defendant in respect of the common lane in question. 8. It is further submitted by the learned senior counsel for the appellant/defendant that even if it is presumed for the sake of argument that the respondent/plaintiff is put to prejudice for having raised the construction of pillars and roof in the common lane, the respondent/plaintiff during the pendency of the second appeal by selling the suit lane had already left the place, therefore, this Court by considering the equity which is in favour of the appellant/defendant that the appellant/defendant is still continuing in the same property by using the common lane, the judgment and decree passed by the first appellate Court by granting permanent injunction and the mandatory injunction in respect of removal of the superstructures in the common lane in question against the defendant should be reconsidered as the same was rightly considered by the trial Court. 9. In reply, the learned counsel for the respondent/plaintiff strenuously opposing the said prayer, supported the impugned judgment not to be interfered by this Court. 10. 9. In reply, the learned counsel for the respondent/plaintiff strenuously opposing the said prayer, supported the impugned judgment not to be interfered by this Court. 10. In his submission, he has brought to the notice of this Court the oral evidence of one Santhanam, who was examined as D.W.2, the owner of the building situated in Telugu Brahmin Street and Sukrawarpet Street and argued that the said D.W.2 sold T.S.No.232 bearing door No.32/176 by executing the original sale deed under Ex.A.2 dated 27.2.1973 in favour of the plaintiffs viz., Rukmani and Saraswathi in O.S.No.512 of 1975. Under the same document, he also sold two shops facing Sukrawarpet Street. Subsequently, on 30.4.1973, the said vendor Santhanam also sold the property bearing door No.214 of Sukrawarpet Street under the sale deed dated 30.4.1973 Ex.A.1 to Ganapathy, the plaintiff. The T.S.Number for this property is mentioned as 7/223 part and 232-part. On a mere reading of Exs.A.1 and A.2, the Courts below have clearly held that both the parties became the owners of the common passage. When there has been an unambiguous finding holding that the passage is the common passage, the question of giving equity by not granting permanent injunction i.e. not to remove construction put up by the appellant, will cause irreparable injuries and prejudice to the respondent/plaintiff. 11. It is his further submission that whether the respondent/plaintiff had sold the property or continued to live in the same place will not go in favour of the appellant/defendant for the simple reason that when the respondent/plaintiff by selling the suit property by executing the registered sale deed, has also sold the right to use the common passage also, the right settled in the impugned judgment in favour of the respondent will inure to the purchaser. Therefore, the impugned judgment and decree passed by the first appellate Court should not be disturbed or interfered with. 12. Therefore, the impugned judgment and decree passed by the first appellate Court should not be disturbed or interfered with. 12. A mere reading of the reasonings given by the first appellate Court and a perusal of paragraph 17 of the operative portion of the judgment passed by the learned Additional District Judge, Coimbatore in A.S.Nos.190 and 191 of 1979, which is marked as Ex.A.6, clearly speaks out loudly in favour of the respondent/plaintiff that the respondent/plaintiff/Ganesan is entitled to go to the open space or passage situated on the West of the building once in six months to do repairs and white washing his walls and further, whenever necessary to undertake any repairing work to the pipeline, drainage line, etc. and for consequential injunction restraining the defendant in that suit lane from interfering with the plaintiff's right as mentioned in the original Ex.A.7, the release deed. Subsequently, the judgment in S.L.P.(Civil Appeal) No.4494 of 1998, which is also marked as Ex.A.8, has clearly revealed that the appeals preferred by the present appellant were dismissed by rejecting the claim of the respondent/defendant/Saraswathi for easementary right, particularly, for the flow of water into the respondent/plaintiff/Ganapathy's land in page 11 of the judgment. 13. The appellant Saraswathi purchased the land in Survey No.7/232 as well as 7/229 under the sale deed dated 27.2.1973 from her vendor. In the said sale deed, the area was mentioned to be 3341 sq.ft. and proper description of the said property was also mentioned. On 30.4.1973, the same vendor sold Survey No.7/220 to the respondent S.Ganapathy an extent of 512 sq.ft. Both sale deeds of both parties mentioned that they had right to ingress and egress over an open passage, which was to the West of the property sold to Ganapathi, the respondent/plaintiff. But, subsequently, the respondent/plaintiff executed a release deed on 30.10.1974, after some misunderstanding, he cancelled the same by executing the another registered cancellation deed dated 2.12.1974. The Apex Court, while going to the extent of land purchased by the appellant, on considering the factual position that she had purchased the land from Survey No.7/232, held that even though the sale deed of the appellant shows the extent of the land to be 3341 sq.ft, actually in Survey No.7/232, the only area remained was 2481 sq. ft., hence, finally, held that the appellant having only purchased Survey No.7/232 is not entitled to more than 2481 sq.ft. ft., hence, finally, held that the appellant having only purchased Survey No.7/232 is not entitled to more than 2481 sq.ft. Therefore, she cannot seek to claim possession of the property which, she never purchased under the sale deed. Under this background, even the plea of easementary right to have water from his property flow on to the land of his neighbour was denied. Again the easementary right of light and air also was denied holding that no such right was granted under the sale deed. Therefore, the appellant is not entitled to put up any pillar in the common lane once again disturbing the right to have free ingress and egress in the common lane as per the order of the Hon'ble Apex Court dated 4.4.2001 passed in C.A.No.4494 of 1998 decided between the appellant and the respondent. 14. Therefore, this Court fully agreeing with the conclusion reached by the first appellate Court in granting decree as prayed for, finding no error or flaw in the impugned judgment affirms the same. 15. In the result, the second appeal fails and the same is dismissed. There is no order as to costs.