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2013 DIGILAW 529 (MAD)

D. Saroja v. Meeran Sahib

2013-01-23

P.R.SHIVAKUMAR

body2013
Judgment :- 1. The defendant in the original suit is the appellant herein. The respondents herein filed the suit O.S.No.834 of 2007 on the file of the District Munsif Court, Kallakurichi for bare injunction against the appellant herein/defendant. The suit was dismissed by the trial Judge (Principal District Munsif, Kallakurichi) against which the respondents herein filed an appeal in A.S.No.18 of 2010 on the file of Sub-Court, Kallakurichi. Learned Subordinate Judge allowed the appeal and decreed the suit as prayed for. The said decree of the appellate Court dated 26.02.2011 is challenged by the appellant herein/defendant in the present second appeal. 2. The respondents herein filed the suit for bare injunction on the basis of the plaint averments which are, in brief, as follows: The property described in the plaint was purchased by the respondents/plaintiffs under two sale deeds dated 19.11.1986 and 29.11.1986. After such purchase, they demolished the old house in the property purchased by them and constructed a new three storied building. The property shown in the plaint schedule is part and parcel of the property purchased by them. The north-south measurement of the property purchased by them is 30 feet, which includes the lanes lying both on the north and south of the building. The respondents/plaintiffs put up the new construction to a width of 24 feet (north-south) leaving 3¼ feet lane on the north of the building and 1¼ feet space on the south of the building. The space left on the south of their building to a width of 1¼ feet is shown as the suit property and the same was left for plastering their southern wall and laying the drainage pipelines. The appellant/defendant, who filed an earlier suit in O.S.No.120 of 2003 and got a decree for injunction against the respondents/plaintiffs in respect of her property which lies on the south of the suit property, taking advantage of the decree, claims the suit lane to be belonging to her and prevents the respondents/plaintiffs from plastering the southern wall of their three storied building and laying drainage pipelines in the suit lane. Based on the said averments, the respondents /plaintiffs, without seeking any declaration of title, sought for the relief of bare injunction restraining the appellant/defendant from causing any obstruction to the respondents/plaintiffs from enjoying the suit land. 3. Based on the said averments, the respondents /plaintiffs, without seeking any declaration of title, sought for the relief of bare injunction restraining the appellant/defendant from causing any obstruction to the respondents/plaintiffs from enjoying the suit land. 3. The suit was resisted by the appellant herein/defendant contending that the plaint averment made to the effect that the respondents/plaintiffs had left 3¾ wide lane on the north of the building and 1 ¼ wide lane on the south of their building was against the truth. It was also contended that the plaint averment to the effect that they had left a space of 1¼ feet on the south of their building for the purpose of plastering their southern wall and for laying their drainage pipelines was an utter falsehood. Contending further that the property shown as the suit lane belonged to the appellant / defendant and that the property now shown as suit lane formed part of the property shown as the suit property in an earlier suit, namely O.S.No.120 of 2003 measuring 81 feet x 36 feet in which a perpetual injunction was granted in favour of the appellant herein/defendant, the appellant herein/defendant prayed for the dismissal of the suit. It was also contended by the appellant/defendant in the written statement that since the appellant herein/defendant herein did not make any claim of title in respect of the subject matter of the earlier suit, the present suit was also hit by the bar provided under Order II Rule 2 C.P.C. It was also contended that the suit was barred by res judicata. Based on the above said averments, the appellant/plaintiff prayed for the dismissal of the suit. 4. Based on the above said pleadings, the learned trial Judge framed four issues and tried the suit. In the trial, PW1 was examined and Exs.A1 to A6 were marked on the side of the plaintiffs. 2 witnesses were examined as Dws 1 and 2 and two documents were marked as Exs.B1 to B2 on the side of the defendant. The plan drawn by a consulting engineer (DW2) engaged by the appellant/defendant came to be marked as Ex.X1. 5. The learned trial Judge, on an appreciation of evidence, came to the conclusion that the respondents herein/plaintiffs had not proved that they had left any space on the south of their southern wall of the three storied building put up by them. 5. The learned trial Judge, on an appreciation of evidence, came to the conclusion that the respondents herein/plaintiffs had not proved that they had left any space on the south of their southern wall of the three storied building put up by them. Based on the said finding, the learned trial Judge non-suited the respondents herein/plaintiffs for the relief of bare injunction and dismissed the suit with costs by a judgment and decree dated 19.01.2010. The learned appellate Judge reappraised the evidence and came to the conclusion that the property shown as suit lane belonged to the respondents/plaintiffs and based on such finding set aside the decree passed by the trial Court and decreed the suit as prayed for with costs. Hence, the present second appeal by the appellant herein /defendant. 6. The second appeal was admitted on the following substantial questions of law: "1) When the appellant had previous filed the suit in O.S.No.120 of 2003, before the III Additional District Munsif Court at Kallakurchi in respect of the present suit property and obtained decree and judgment under Exs.A4 and B2, whether the lower appellate Court is correct in law in allowing the appeal, especially when the suit is barred under Section 11 of the Code of Civil Procedure? 2) When the appellant had specifically denied the title of the respondents, is the suit for bare injunction maintainable?" 7. Admittedly the property of the appellant/defendant lies on the south and the property of the respondents/plaintiffs lies on the north. The plaintiff claims title to a open space immediately on the south of the southern wall of the plaintiffs' house to a width of 1¼ feet. It is the contention of the appellant that since an earlier suit was filed by the appellant herein against the respondents in O.S.No.120 of 2003 in respect of her property measuring East – West 81 feet and North-south 36 feet and the said suit was decreed, which was not challenged in appeal, the present suit is barred by the principle of res judiciata under Section 11 of the Code of Civil Procedure. The certified copy of the judgment pronounced in O.S.No.120 of 2003 (the earlier suit) has been produced as Ex.A5. The certified copies of the decree passed in the said suit have been marked on both sides as Exs.A4 and B2 respectively. 8. The certified copy of the judgment pronounced in O.S.No.120 of 2003 (the earlier suit) has been produced as Ex.A5. The certified copies of the decree passed in the said suit have been marked on both sides as Exs.A4 and B2 respectively. 8. Of course, such a decree was passed in the said earlier suit in favour of the appellant herein. But whether the present suit property was also included in the suit property of the earlier suit in respect of which the appellant herein/defendant had been granted the decree of perpetual injunction is the bone of contention. A reading of Ex.A5 shows that even in the said earlier suit the trial Court found that the description of northern boundary of the property shown as suit property in the earlier suit was not correct insofar as a vacant space in between the property of the appellant herein and then existing house of the respondents herein was not shown as the northern boundary and on the other hand, the southern wall of the then existing house of the respondents had been shown to be the northern boundary. In the earlier suit, the Court, after adverting to the oral and documentary evidence and after considering the Commissioner's reports and plans, came to the conclusion that there existed a vacant space on the south of the southern wall of the then existing house of the respondents herein at least to a width of 1.1 feet. However, the learned Judge chose to hold that the injunction sought for was in respect of the property belonging to the appellants herein lying on the south of the said vacant space and granted the decree as sought for in the earlier suit, namely O.S.No.120 of 2003. 9. The respondents / plaintiffs in their plaint have contended that, while putting up a new construction after demolishing the building that existed at the time of their purchase, they left a space of 1¼ feet on the south of the southern wall of the newly constructed three storied building for plastering the wall and laying drainage pipelines regarding, which alone they claim the relief in the present suit. The appellant/defendant stoutly deny the said contention of the respondents/plaintiffs that they left 1¼ feet wide space on the south of the southern wall of their new construction. The appellant/defendant stoutly deny the said contention of the respondents/plaintiffs that they left 1¼ feet wide space on the south of the southern wall of their new construction. She claims that the entire space lying on the south of the southern wall of the new construction of the respondents/plaintiffs absolutely belongs to her and her right has been upheld in the previous suit. When such is the case, the question whether the suit is barred by res judicata cannot be conveniently answered without deciding the question whether the respondents/plaintiffs have put up the new construction upto the southern edge of their property without leaving any space or have left 1¼ feet on the south of their southern wall as claimed by them. In this regard, the appellant/defendant has taken a clear stand that the property now shown as suit property forms part of the property regarding which she was granted injunction in the former suit, namely O.S.No.120 of 2003 and the same absolutely belongs to her. As such normally the respondents/plaintiffs are excepted to seek the establishment of their title by praying for a declaration. However, the mere fact that a declaration in respect of the suit property has not been sought for shall not be the ground on which the suit can be dismissed as not maintainable. Even in a suit for bare injunction, the Court can incidentally go into the question of title in order to decide the entitlement of the plaintiff to the relief of injunction. But as a rule of convenience, if the question of title is a complicated one and the same cannot be conveniently dealt with in the suit for bare injunction, the plaintiffs have to be relegated to a comprehensive suit for declaration and injunction. It has been held so in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs & Others reported in 2008 (6) CTC 237. 10. In this case, the appellant has chosen to produce a plan allegedly drawn by an engineer of his choice, who was examined as DW2. The said plan has been marked as Ex.X1. Admittedly, the appellant/defendant purchased a property measuring East-West 81 feet and north-south 36 feet on both sides. In respect of the said property with the said measurements, the previous suit had been filed and a decree of perpetual injunction had been granted in favour of the appellant/defendant. The said plan has been marked as Ex.X1. Admittedly, the appellant/defendant purchased a property measuring East-West 81 feet and north-south 36 feet on both sides. In respect of the said property with the said measurements, the previous suit had been filed and a decree of perpetual injunction had been granted in favour of the appellant/defendant. The plan Ex.X1 is to the effect that the North-South measurement of the appellant's property on the west upto the southern wall of the respondents house falls short of 36 feet and the shortage is 1 feet 7 inches. However, on the eastern border, the respondents/plaintiffs seem to have left a space of 11". A small triangular space on the south eastern corner alone comes within the boundary of the respondents/plaintiffs, whereas a larger triangular portion on the north-western portion of the property of the appellant was the encroachment made by the respondents/plaintiffs. Though the said plan is to the effect that some portion of the appellant had been encroached upon by the respondents/plaintiffs, the appellant had not chosen to make any claim on it. The said plan was projected only for the purpose of showing that the respondents/plaintiffs did not leave any space on the south of their southern wall as shown in the plaint schedule. Except a triangular portion with measurements 21' 6" X 11" X 21' 6", there is no space available to the respondents/ plaintiffs on the south of their southern wall. That triangular portion is also shown to be situated on the south-eastern corner of the property of the respondents/plaintiffs. When such is the case, the lower appellate Court had chosen to simply rely on the said plan to come to the conclusion that the plaintiff's case was proved. Probably the first appellate Court was of the view that the burden of proving that no space was left on the south of the southern wall of the plaintiffs would stand cast on the defendant and that was the reason why the lower appellate Court has chosen to simply set aside the decree passed by the trial Court by which the suit had been dismissed and decree the suit as prayed for. 11. 11. It is pertinent to note that the respondents/plaintiffs have not chosen to give the east-west and north-south measurements of the total property belonging to them, whereas the appellant/defendant has made a clear plea that her property measures 81 feet east-west and 36 feet north-south and that the property shown as suit lane is included in the said property claimed by her. When such is the case, the plaintiffs ought to have taken steps to get the property measured by a commissioner with the help of a surveyor to show that they have left some space on the south of their southern wall. They have not done so. Without taking proper measurements of the properties of both the appellants and the respondents, the question of title cannot be resolved. There is a dispute regarding title to the suit property. Since the respondents/plaintiffs have admitted that their title to the suit property has been disputed, the suit ought to have been valued under Section 27(a) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. Again without measuring the property by a Commissioner appointed by the Court with the help of a surveyor, the question of res judicata also cannot be resolved, to give a quietus to the problem. 12. Under the said circumstances, this Court comes to the conclusion that the present second appeal deserves to be allowed and the decree passed by the lower appellate Court is bound to be set aside. The decree passed by the trial Court also deserves to be set aside and the interest of justice requires remanding the suit to the trial Court to decide the matter afresh after getting the properties of both parties measured with the help of a surveyor who will accompany an Advocate Commissioner to be appointed by the trial Court and after allowing both parties to adduce additional evidence, if any. 13. In the result, the appeal is allowed in part. The decree of the lower appellate Court is set aside. The decree of the trial Court is also set aside and the suit is remanded to the trial Court with a direction to get the properties of both the parties measured by an Advocate Commissioner to be appointed by the trial Court with the help of a surveyor and decide the matter afresh after allowing both the parties to adduce additional evidence, if any. The trial Court also shall allow the respondents/plaintiffs to amend the valuation and Court fee column to make it in consonance with Section 27(a) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and collect the deficit Court fee, if any. The trial Court shall make every endeavour to dispose of the suit within six months from the date of receipt of records. No costs.