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2018 DIGILAW 1322 (MAD)

Murugan v. Elumalai

2018-04-04

PUSHPA SATHYANARAYANA

body2018
JUDGMENT : The second defendant is the appellant herein. The plaintiff had filed the suit for declaration and mandatory injunction to remove the western wall of the suit property. 2. (i) The suit property as well as the other properties originally belonged to one Marimuthu. The said Marimuthu had put up a tiled house and left the Northern and Southern portions as vacant site and was enjoying the same by rearing cattle. The Northern side belonged to one Ilaya Perumal. It is stated that on the Northern side of Marimuthu's property, there were five plots, for which, the North-South measurements are 27 feet. The Western plots of said Ilaya Perumal were also measured North-South 27 feet. The South of Marimuthu's land was enjoyed as a Garden. According to the plaintiff, from the land belonging to Rajendran till the end of the road, it was 80 feet, of which, Ilaya Perumal had 27 feet, Marimuthu had 27 feet and another 26 feet was also enjoyed by the said Ilaya Perumal. From the said Marimuthu, on 08.11.1974, the plaintiff's father purchased the property. It was originally measured as 24 feet. Therefore, the plaintiff's father purchased another 3 feet on 18.10.1982 from Marimuthu and others. Thereafter, the plaintiff's father Arunachalam in a division, allotted the same to plaintiff's brother Rajaraman. From the said Rajaraman, the plaintiff purchased North-South 27 feet on 25.06.1988 and has been in enjoyment. (ii) It is the case of the plaintiff that he has also been in enjoyment of 27 feet property by leaving 3 feet vacant as enjoyed by the said Marimuthu. While so, the defendants had purchased the Northern side property from the said Ilaya Perumal on 26.07.1999. It is stated that there was an enmity between the plaintiff and the said Ilaya Perumal. Thus, the said Ilaya Perumal and the defendant colluded together and mentioned the measurements of the property as 36 feet in the sale deed. Apprehending that there will be a disturbance to the property of the plaintiff, the plaintiff had issued a notice on 21.03.2002, for which, there was no response from the defendants. It is the further case of the plaintiff that the defendants had raised a wall for 5 feet on Western side, 3 feet measuring North-South. Therefore, the suit is filed for removal of the said wall. 3. It is the further case of the plaintiff that the defendants had raised a wall for 5 feet on Western side, 3 feet measuring North-South. Therefore, the suit is filed for removal of the said wall. 3. The suit was resisted by the defendants contending that the plaintiff's father had purchased only 24 feet on 08.11.1974 from one Marimuthu. It is stated that thereafter, on 18.10.1982, another 3 feet was purchased by the plaintiff. When the said Marimuthu himself had only 24 feet, he could not have sold another 3 feet by a second sale. In the additional written statement, it is stated by the defendants that like the Western side, even on the Eastern side, there is a wall and the defendants had been in enjoyment of the said passage, as the drainage pipeline of the defendants go through the said suit property. It is not a public pathway as claimed by the plaintiff on the above said pleadings. 4. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and two more witnesses were examined as P.W.2 and P.W.3 and Exs.A1 to A6 were marked. On the side of the defendants, the second defendant was examined as D.W.1 and one more witness was examined as D.W.2 and Exs.B1 to B7 were marked. 5. On perusal of the documents and evidence, the trial Court had dismissed the suit. Aggrieved by the same, the appeal was preferred by the plaintiff in A.S.No.35 of 2010 on the file of the Subordinate Court, Gingee. The lower appellate Court set aside the trial Court judgment and decreed the suit. Aggrieved by the same, the second defendant has preferred the above appeal. 6. At the time of admission, by order dated 23.04.2015, the following substantial questions of law are formulated:- a. Whether the Lower Appellate Court could conclude that the walls in the suit property were newly built after the issue of the legal notice, Ex.A5, when the report of the Advocate Commissioner made with the assistance of an Engineer clearly states that the age of the walls could not be specified, and no other direct evidence was let in to show the age of the wall? b. Whether the learned Lower Appellate Court was right in law in allowing the appeal without considering the significance of the Advocate Commissioner's report and the evidence of D.W.1, that the appellant's drainage channel is situated in the suit property, supporting the claim of the appellant herein that his vendor was in possession of the suit property even much earlier to the purchase of the property at S.No.96/13, by the first respondent's father? c. Whether the Lower Appellate Court was right in law in placing reliance on Ex.A2, the sale deed by which the plaintiff claims to have purchased the suit property, in the absence of any reference in both Ex.A1 and A2 to the effect that only a portion of the land was being sold each time? 7. Heard the learned counsel for the appellant/second defendant and the learned counsel for respondents and perused the materials available on record. 8. The learned counsel appearing for the appellant contended that the respondent being the plaintiff has the burden of proving his case and that he failed to establish his right over the suit property. When the plaintiff has stated that he has purchased 24 feet from his vendor and he had left 3 feet on the Northern side, it is for him to establish the same. 9. On the side of the first respondent/plaintiff, it is stated that 3 feet South of his property and 18 feet length belonged to the plaintiff, but the defendants had raised a wall about 5 feet height on the Western side, which is now sought to be removed. There is also a wall on the Eastern side put up by the defendants and the said portion is used by the defendants as a backyard. The said portion was vacant and the plaintiff was using the same for drying pots and only in the year 2002, the defendants raised the wall. It is the case of the plaintiff that when he purchased the property from Marimuthu, instead of mentioning length as 27 feet, it was mentioned only as 24 feet. Therefore, another sale deed was taken from him for balance of the 3 feet. 10. The plaintiff was examined as P.W.1 and he has stated that the suit property situate in S.No.92/3 an extent of 3x18 feet. Therefore, another sale deed was taken from him for balance of the 3 feet. 10. The plaintiff was examined as P.W.1 and he has stated that the suit property situate in S.No.92/3 an extent of 3x18 feet. It is also admitted by the plaintiff that there are two entrances for defendants house, one on the North and one on the South. Though in the pleadings, the plaintiff has stated that there was enmity between the said Ilaya Perumal and the plaintiff's father, in the evidence, he stated that there was no such dispute between them. 11. P.W.2 is the son of the plaintiff's vendor. He has admitted that he does not know the boundary description of the property purchased by the plaintiff. P.W.3 is one Jayapalan, who is an independent witness, and he has also pleaded ignorance about the joint family nature of the property. On the side of the defendant, second defendant/appellant was examined as D.W.1. 12. In the evidence, D.W.1 has categorically admitted that he has not given any reply to the suit notice. The defendants also examined D.W.2, who is the vendor of the defendant. In the cross-examination, he had stated that for each of the brothers 27 feet North-South was allotted. However, for the second defendant, 36 = feet was allotted. But he has not stated any particular reason for allotting more extent to him and also not produced any evidence as to why he was entitled to a larger extent than the other brothers. In the Appellate Court, only at the instance of the plaintiff, the Commissioner was appointed to measure the property with the help of an Engineer. The report also says that plaintiff's house is facing on the Western side and the Eastern wall is in the dilapidated condition. The plaintiff's house is situate in S.No.92/13, whereas, defendants house situate in S.No.92/16. The plaintiff states that the portion other than the one occupied by the plaintiff remained vacant. On the Eastern side there was 12.3' feet and on the Southern side it was 14.11' feet and that on the Eastern side, the defendants property has extended by 3.9' feet. The purchase by the plaintiff is prior to the purchase by the defendants. 13. On the Eastern side there was 12.3' feet and on the Southern side it was 14.11' feet and that on the Eastern side, the defendants property has extended by 3.9' feet. The purchase by the plaintiff is prior to the purchase by the defendants. 13. In the year 1974, the house property was purchased under Ex.A1 and subsequently in the year 1982, the plaintiff has purchased another 3 feet, whereas, the defendant had purchased the property on 26.07.1999. As the entire property belonged to one family of five brothers and each of them had only 27 feet, the plaintiff contended that the defendants could not have had an additional extent. When the plaintiff has come up with the specific case that he is the owner of the suit property in S.No.92/13 an extent of 3'x18', the burden is on him to establish the same. Admittedly, there is also a wall on the Eastern side of the suit property. The Commissioner has categorically mentioned that the construction of the walls are much later to the construction of the house of the plaintiff and defendants. The Commissioner also has specifically stated that : xxxxxxx 14. When the Commissioner has specifically stated that he is not able to mention about the age of the walls, the learned appellate Court Judge has come to a conclusion that the disputed wall was constructed after the issuance of the notice by the plaintiff, which is not correct. It is also found by the Lower Appellate Court that the defendants had purchased more than what their vendor was entitled to and the defendants had not established that their vendor had a saleable right for the entire extent mentioned in the sale deed. The Lower Appellate Court also had found that originally the plaintiff had purchased 24 feet and thereafter purchased another 3 feet, as the earlier sale deed had mentioned the measurement wrong. The only contention raised by the plaintiff is that because there was enmity between the defendants' vendor Ilaya Perumal and the plaintiff, the defendants' vendor had sold excess land to the defendants that after the said purchase only, the defendants had put up a wall and have been enjoying the property as their backyard. 15. It is the consistent case of the plaintiff that the wall was put up by the defendants only after the suit notice was issued. 15. It is the consistent case of the plaintiff that the wall was put up by the defendants only after the suit notice was issued. The finding of the Lower Appellate Court may not be correct in this regard. The burden is always on the plaintiff to establish his right. 16. P.W.1 in his cross examination has deposed that, xxxxxxx 17. A Commissioner was appointed in the first appellate court at the instance of the plaintiff. The Commissioner in his report has stated, xxxxxx 18. The evidence of P.W.1 and the report of the Commissioner also state the same about the existence of drainage pipe line. Thus from the evidence of P.W.1 and the report of the Commissioner, it is clear that the defendants have two entrances to his house and that the backside entrance is being used as drainage passage. This indicates that the plaintiff could not be in possession of the same as claimed by him. Even assuming that the defendants had purchased the excess portion and had put up the construction after the sale only, being the neighbour, the plaintiff had allowed him to put up the wall by acquiescing to the act of the defendant. Therefore, in the absence of any concrete evidence coming from the plaintiff to establish his right and title, the relief of mandatory injunction, which is an equitable relief, cannot be granted. The questions of law are answered against the plaintiff. 19. In the result, the Second Appeal is allowed, setting aside the Judgment and Decree of Appellate Court in A.S.No.35 of 2010. The Judgment and Decree of the trial Court dismissing the suit in O.S.No.219 of 2003 are restored. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.