Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1639 (MAD)

G. S. Murari v. V. M. Manavalan

2013-04-15

R.S.RAMANATHAN

body2013
JUDGMENT 1. The plaintiffs in O.S.No.13270 of 2009 on the file of the VII Additional Judge, City Civil Court, Chennai, are the revision petitioners. They filed the suit for permanent injunction restraining the respondents from demolishing the northern side wall of the suit 'B' schedule property affecting the customary privacy easement right of the plaintiffs, which is enjoyed from time immemorial. The revision petitioners also filed I.A.No.25302 of 2009 for temporary injunction for the same relief and that application was dismissed and confirmed in CMA No.163 of 2011 on the file of the VII Additional Judge, City Civil Court, Chennai and aggrieved by the same, this revision is filed. 2. It is submitted by the learned Senior counsel appearing for the revision petitioners that both the courts below without properly appreciating the nature of the suit property and the damages that may be caused if injunction is not granted, erred in dismissing the application filed by the revision petitioners for temporary injunction solely on the basis of the Advocate Commissioner's report, without taking into consideration the admission of the respondents that the demolition of the disputed wall would expose the house of the revision petitioners to open sky, which would prove that the disputed wall is a party wall and the revision petitioners has got easementary right over the wall for the convenient enjoyment of the property. 3. The learned Senior counsel further submitted that the opinions from the Chartered Engineer and the Structural Engineer were obtained and both of them make it very clear that if the common wall dividing the two properties were demolished, that would cause serious damage to the revision petitioners' property and that would also affect the stability of the building, which is admittedly 100 years old and therefore, the orders of the courts below are to be set aside and the temporary injunction be granted to the petitioners as prayed for. 4. On the other hand, the learned counsel appearing for the respondents submitted that the revision petitioners have not come out with the correct facts and at one breath, they contended that the disputed wall is a party wall belonging to both parties and another breath, they would admit that the disputed wall belongs to the respondents and further, they also would contend that it is a party wall over which they got easementary right. 5. 5. The learned counsel further submitted that the Advocate Commissioner has clearly found that the disputed wall is a separate wall belonging to the defendants and the revision petitioners are having their own wall and the there are seven brick pillars and six wooden pillars, supporting the lintel made up of wooden beams and therefore, even after the demolition of the disputed wall, no damage would be caused to the revision petitioners' house as it is rest on beams and wooden pillars and considering the report of the Advocate Commissioner, both the courts below have rightly come to the conclusion that the plaintiffs are not entitled to injunction prayed for and dismissed the application and the same need not be interfered with in this revision. 6. Though the revision petitioners as well as the respondents filed report from the Structural Engineers to substantiate their case, having regard to the nature of the claim made by the revision petitioners and having regard to the factual aspects as stated in the Commissioner's report, I am not taking into consideration the report of the Structural Engineers. 7. Further, the Structural Engineer, who filed the report on behalf of the revision petitioners has not stated anything about the thickness of the wall and the Structural Engineer proceeded on the basis that the wall is a common wall dividing the two properties. 8. Further, the Chartered Engineer, namely M.AJ.Parthasarathy Associates, who gave a report on behalf of the revision petitioners has admitted that Door No.15, the plaintiffs' property had beams inside the house on its southern side, at heights varying from 7.5' and more and on that beam, they have built walls, which go through mezzanine, first and second floors and also found that the beams are located at a height of about 7.5' from the ground and the wall that was erected above the beams merged with each other. Therefore, it is seen from the report of the Chartered Engineer that there are two walls belonging to each party and the plaintiffs are having a separate southern wall and the defendants are having a separate northern wall and the learned Advocate Commissioner has also found the same. 9. Therefore, it is seen from the report of the Chartered Engineer that there are two walls belonging to each party and the plaintiffs are having a separate southern wall and the defendants are having a separate northern wall and the learned Advocate Commissioner has also found the same. 9. Further, according to the report of the Chartered Engineer referred to above, if the wall is demolished, the entire ground floor of the property belonging to the revision petitioners would be opened from the ground to a height of about 7.5'. 10. According to the Advocate Commissioner's report, there are two walls and the defendants northern side 15 inches wall stands separately after the 14 feet width of the plaintiffs' house. He further found that the wooden pillars and the brick pillars, which are bearing the lintels or beams are in no way connected or supported on the defendants' northern side wall. 11. He further found that the plaintiffs' southern side wall including the pillars and lintel and the defendants northern side wall are independent of each other. He also found that if the defendants southern side wall is removed then the plaintiffs' house southern side will become open upto the lintel level, which is around 7 feet height except the rear portion which is 17.5 feet. Therefore, it is seen from the report of the Advocate Commissioner that the houses are having separate wall and only in the area, where lintel is rested on the wooden pillars and brick pillars, the plaintiffs house will be exposed to open space, when the wall belonging to the defendants' is demolished. 12. It is seen from the order of the lower appellate court that the respondents have filed an affidavit undertaking to construct a wall upto the lintel level for the plaintiffs to have a privacy of their house. Admittedly, the suit is filed for injunction and the suit proceeded on the basis that if the defendants are allowed to demolish the wall, the house of the plaintiffs would collapse and the wall is a dividing wall between the properties. But it is seen from the report of the Advocate Commissioner that there are two walls and only in some portions, the plaintiffs' house will be exposed by demolishing the wall. But it is seen from the report of the Advocate Commissioner that there are two walls and only in some portions, the plaintiffs' house will be exposed by demolishing the wall. Therefore, having regard to the report of the Advocate Commissioner and the affidavit of undertaking given by the respondents before the lower appellate court undertaking to construct a wall in the revision petitioners' property, beneath the lintels to safeguard the privacy of the revision petitioners, I do not want to go into the claims of both parties at this stage, as it would affect the merits of the case during trial. 13. Hence, I do not find any reason to interfere with the orders of the court below and accordingly, the revision is dismissed and the respondents are directed to implement the undertaking given by them before the lower appellate court in the event of any necessity. 14. I also make it clear that the observations or findings rendered by me or by the courts below were only made for the purpose of disposing of the interlocutory application and the parties are at liberty to lead evidence to prove their respective cases and the trial court is directed to decide the case on merits without being influenced by any of the observation made by this court or by the courts below. Consequently, connected Miscellaneous Petition is closed. No costs.