Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 881 (MAD)

S. Marimuthu (died) v. G. Venu

2012-02-20

T.RAJA

body2012
Judgment :- 1. The appellants herein filed a suit as plaintiffs in O.S.No.3903 of 1996, on the file of the District Munsif Court, Coimbatore, seeking prayer--- a) for permanent injunction restraining the defendant, his men servants, hirelings, and family members from interfering with the plaintiff's peaceful possession and enjoyment of the suit property in any manner whatsoever; b) for granting mandatory injunction directing the defendant to remove the constructions put up by him in the suit space of 2' on the southern side of the plaintiff's house at his cost; c) for directing the defendant to pay the cost of the suit to the plaintiff; 2. The averments made in the plaint, in brief, are recapitulated below for better appreciation. The plaintiff's father-Sadaya Pannady purchased house property bearing Door Nos.52, 53 and 54, under a Registered sale deed, dated 17.06.1935. After the death of the said Sadaya Pannady in the year 1947, the plaintiff, being the only son, became the absolute owner of the said house and since then, he is in possession and enjoyment of the same. The suit properties are situated on the eastern side of the Pattatharasiamman Koil Street, Singanallur, Coimbatore, within the Coimbatore Corporation Limits. The defendant is the owner of the property situated on the southern side of the suit properties, abutting the said Pattatharasiamman Koil Street. Whileso, the defendant had started to put up construction in his property on the southern side of his properties, and again, when he has put up further construction in the suit space of 2' on the southern wall of the plaintiff's property by constructing water tank and septic tank, the plaintiff filed a suit with the aforesaid prayer. 3. The defendant, by filing a written statement, contended that, as per the plaintiff's document, dated 17.03.1935, the north-south measurement of the western side property is only 40'. The plaintiff initially requested to the defendant for permission to enter into the defendant's property just for whitewashing the south of the southern side wall only. A compromise was arrived between the plaintiff and defendant on 24.09.1996, and as per the compromise, the plaintiff has no right over the areas situated south of his southern side wall and therefore, he cannot claim any right for the light and air. 4. A compromise was arrived between the plaintiff and defendant on 24.09.1996, and as per the compromise, the plaintiff has no right over the areas situated south of his southern side wall and therefore, he cannot claim any right for the light and air. 4. The defendant has also filed an additional written statement, contending that, as per the order passed by this Court, the Advocate Commissioner has visited the suit property in the presence of both the parties along with the Surveyor on 05.02.1997. As per the report filed by the Commissioner, together with the report of the Surveyor, the plaintiff is in possession and enjoyment of 43' in the the north-south, on the western side. As per the plaintiff's document, dated 17.06.1935, the North-South measurement of the western side is only 40'. 5. The learned District Munsif Court, Coimbatore, after considering the case of both sides, has decreed the suit in favour of the plaintiff. Aggrieved by the said order, the defendant has filed an appeal before the II Additional Subordinate Judge, Coimbatore, in A.S.No.55 of 2004. The first appellate Court, by order dated 28.07.2005, reversed the judgment and decree passed by the trial Court, in O.S.No.3903 of 1996, dated 26.07.2005. On being aggrieved the same, the plaintiff has filed the present second appeal. Pending second appeal, when the sole appellant/plaintiff-S.Marimuth died, the Legal Representatives of the sole appellant were brought on record, vide order dated 31.10.2006, made in CMP No.10060 of 2006. 6. At the time of admission, the following substantial questions of law were framed for consideration:- a) Whether the Lower Appellate Court is correct in law in holding that the appellant had not established his case, by eschewing Exs.A1 to A8 material documents, that would fortify the case of the appellant? b) Whether the Lower Appellate Court is correct in law in ignoring the admission of respondent examined as D.W.1, to the effect that the suit property was not measured earlier? c) Whether the Lower Appellate Court is correct in law in placing undue reliance upon Exs.C1 to C3 Commissioner's Report, Plan and Photographs? d) Whether the Lower Appellate Court is correct in law in reversing the trial Court judgment, without setting aside the findings rendered therein, especially when it is imperative for the Lower Appellate Court to do so? c) Whether the Lower Appellate Court is correct in law in placing undue reliance upon Exs.C1 to C3 Commissioner's Report, Plan and Photographs? d) Whether the Lower Appellate Court is correct in law in reversing the trial Court judgment, without setting aside the findings rendered therein, especially when it is imperative for the Lower Appellate Court to do so? e) Whether the Lower Appellate Court is correct in law in holding that Ex.B1 Agreement is admissible in evidence, in contravention of the provisions of Section 17 of the Registration Act? f) Whether the Lower Appellate Court is correct in law in non-suiting the appellant, especially when the appellant was in enjoyment of the suit property for over forty years by way of easement? 7. Though the learned counsel for the appellant has submitted that the learned first appellate Court has erroneously disturbed the findings of the learned trial Court, this Court is not in a position to warrant interference with the judgment passed by the learned first appellate Court. Admittedly, the plaintiff is the owner of land covered in Ex.A1-Sale deed. Whileso, the plaintiff, mistaking his own case that he is the owner of 40' in the North-South as per the Ex.A1, in an effort to take a chance, has filed a suit wrongly mentioning that he is the owner of 53' north south x 42' east-west founded by the extension road on the west. Therefore, the learned first appellate Court has rightly held that the appellant had not established his case, as per the Ex.A1-Sale deed, and thereby, rightly reversed the judgment and decree passed by the learned trial Court. In view of these reasons, the first and second substantial question of law are answered against the appellant. 8. In regard to the third and fourth substantial questions of law, the learned first appellate Court, by going through the report of the Advocate Commissioner, and other maps and photographs, have clearly noted the fact that, as per the report of the advocate Commissioner, the plaintiff is in possession and enjoyment of 43' in North-South, and the plaintiff has not even filed any objection stating that the report of the Advocate Commissioner was wrong, since he has laid his claim for about 53' north-south x 42' east-west founded by the extension road on the west. Therefore, from looking at any angle, when the plaintiff has not even objected against the report of the Advocate Commissioner, the learned first appellate Court has rightly reversed the judgment and decree passed by the learned trial Court. Therefore, the third and fourth substantial questions of law are answered against the appellants. 9. In regard to the fifth and sixth substantial questions of law, in fact, when there was dispute with regard to the extent of the suit property between the plaintiff and defendant, there was compromise held on 24.09.1996, and as per the compromise, the plaintiff is not having the right in the land, that belongs to the defendant. But, unfortunately, that compromise deed was not registered under Section 17 of the Registration Act. Therefore, the trial Court, disbelieving the compromise deed, has wrongly decreed the suit. Again, while decreeing the suit, the extent mentioned in the sale deed, has been wrongly overlooked. But, the learned first appellate Court has rightly come to the conclusion that the plaintiff cannot go beyond the extent of the land mentioned in the sale deed-Ex.A1. Therefore, when the extent mentioned in the sale deed has been properly found out by the learned first appellate Court, the question of disbelieving the compromise deed dated 24.09.1996, on the ground that the same was not registered under Section 17 of the Registration Act, cannot alter the case of the plaintiff. That apart, the compromise deed was made between the plaintiff and defendant on 24.09.1996, only to allow the plaintiff to reach the compound wall to whitewash the same once in a year. Therefore, the same cannot be interfered with. Accordingly, the fifth and sixth substantial questions of law are answered against the appellant. 10. In the result, the Second Appeal is dismissed. Consequently, the judgment and decree passed by the II Additional Subordinate Judge, in A.S.No.55 of 2004, dated 28.07.2005, is restored. No Costs.