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2018 DIGILAW 2876 (MAD)

T. Manikandan v. M. Mahalingam

2018-09-12

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this second appeal is made to the judgment and decree dated 20.10.2014 passed in A.S.No.318 of 2013 on the file of the V Additional Judge, City Civil Court, Chennai confirming the judgment and decree dated 16.04.2013 passed in O.S.No.1966 of 2012 on the file of the XIV Assistant Judge, City Civil Court, Chennai. 2. The parties are referred to as per the rankings in the trial court. 3. Suit for permanent injuction. 4. The case of the plaintiff in brief is that he is the younger brother of the defendants' father late Thulasingam and the plaint “A” schedule property was absolutely owned by the plaintiff's father as his self acquired property consisting of the Ground, first and second floor and the plaintiff's father executed a settlement deed dated 20.02.2016 where under, he had settled the ground floor in favour of the defendants, the first floor in favour of the plaintiff and the second floor in favour of the plaintiff's brother Vasu and by way of a registered settlement deed dated 23.01.2007, Vasu had settled his portion in favour of the plaintiff and thus the plaintiff is in possession and occupation of the first and second floor of the plaint schedule property by inducting tenants. As per the settlement deed, the hand pump and pump with motor shall be in common usage to all the shareholders and the repair and maintenance charges, if any, shall be met in common and the hand pump and the bore well with motor are situated in the ground floor within the portion allotted to the defendants, more fully described in the “B” schedule and shown Red in colour in the plan annexed with the plaint and the entire building is supplied with water from the common bore well and drinking water from the hand pump. The entire ground floor including the common usage area is covered and the staircase leading to the first and second floor is situated separately outside the ground floor area. The plaintiff and his tenants have no business to enter the gate leading to the ground floor in the normal course except for the purpose of maintenance and carrying out any repair in the bore well motor and drainage. The plaintiff and his tenants have no business to enter the gate leading to the ground floor in the normal course except for the purpose of maintenance and carrying out any repair in the bore well motor and drainage. On 26.02.2012, the common motor installed in the bore well got repaired and the plaintiff went with the plumber Poongavanam to carryout the repair work and he was prevented by the defendants without any sufficient cause. Accordingly, the plaintiff made a complaint to the police dated 12.03.2002 and the defendants were advised to allow the plaintiff to carryout the repair work and even thereafter, as the defendants refused, the inspector of police came to the spot on 23.03.2012 and in his presence, the plaintiff was allowed to carryout the repair work in the common bore well motor and on the night of the same day, the pipeline of the borewell was damaged by the defendants and on being questioned, the defendants picked up quarrel with the plaintiff and in this connection, the plaintiff lodged a complaint on 26.03.2002 with the police. The plaintiff has engaged the plumber Poongavanam to carryout the repair work and while the said plumber was carrying out the repair work on 02.03.2012, he was attacked by the second defendant with the iron pipe and the plumber had sustained head injury. In this connection, complaint had been lodged with the police dated 28.03.2012 and the plumber was treated as outpatient in the Government Hospital, Chennai. Though the bore well and motor were enjoyed in common and the maintenance to be met out jointly, the plaintiff carried out the repair works in his own expenses, however the defendants without any authority, had caused damage to the bore well and motor and thereby prevented the plaintiff's from enjoying the common bore well motor, drainage pump and other utility left for the common usage, as per the settlement deed and hence the suit for appropriate relief’s. 5. The case of the defendants in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts and according to the defendants, as per the settlement deed dated 20.02.2006, only the hand pump, motor, third floor facing the sky, staircase, Corporation Tax and Metro water tax are common to all. The case of the defendants in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts and according to the defendants, as per the settlement deed dated 20.02.2006, only the hand pump, motor, third floor facing the sky, staircase, Corporation Tax and Metro water tax are common to all. In the settlement deed, it is not stated anything about the bore well in the ground floor and it is common to all. Therefore, to state that there is a bore well in the ground floor within the area wherein the defendants are residing and it is common to all is false and equally the claim of the plaintiff that he has got every right to enter the common area for effecting the repairs to the bore well motor is false. The plaintiff cannot enter the portion of the defendants closed by a door and the same is occupied for the exclusive usage of the defendants. The plaintiff in the guise of a non-existent bore well is not entitled to enter upon the portion in the possession of the defendants. The motor referred to in the settlement deed relates to the sump to store metro water, which is not being used. It is true that the defendants prevented the plaintiff to enter into their portion and the plaintiff with an evil intention, lodged the false complaints to the police. The defendants are not aware of the complaints and the outcome thereof and it is false to state that Poongavanam was assaulted by the defendants as alleged in the plaint. The defendants are not responsible in the act of the plaintiff inducting 65 persons in his area and on that score, the plaintiff cannot enter into the portion of the defendants and install a bore well and disturb the possession and enjoyment of the defendants. There is no cause of action for the suit and the plaintiff's suit is therefore liable to be dismissed. 6. In support of the plaintiff's case, P.W.1 was examined. Exs.A1 to A9 were marked. On the side of the defendants, no oral and documentary evidence has been adduced. 7. The Courts below, on a consideration of the materials placed on record, both oral and documentary, was pleased to accept the plaintiff's case. Aggrieved over the same, the present Second Appeal has been laid. 8. Exs.A1 to A9 were marked. On the side of the defendants, no oral and documentary evidence has been adduced. 7. The Courts below, on a consideration of the materials placed on record, both oral and documentary, was pleased to accept the plaintiff's case. Aggrieved over the same, the present Second Appeal has been laid. 8. At the time of admission of the second appeal the following substantial questions of law were formulated for consideration. (A) On the face of the judgment of the Supreme Court reported in Harbans Pershad Jaiswal (D) by Lrs Vs. Urmila Devi Jaiswal (D) by Lrs [2014-4-L.W.791] is the lower Appellate Court is correct and justified in dismissing the appeal on merits? (B) On the face of the finding of the lower Appellate Court that neither the appellants' counsel nor appellant argued in the lower Appellate Court is correct and justified in dismissing the appeal on merits instead of dismissing the appeal for default? 9. Both the plaintiff and the defendants claim title to their respective properties based on the settlement deed dated 20.02.2006 executed by the father of the plaintiff and the copy of the same has been marked as Ex.A1. Now, according to the plaintiff, he is the owner of the first floor of the “A” schedule property, by way of Ex.A1 deed. It is further stated that, the plaintiff became the owner of the second floor of the “A” schedule property, by virtue of the settlement deed executed in his favour by his brother Vasu. According to the defendants, they have title to the ground floor portion of the “A” schedule property by way of Ex.A1 settlement deed. As regards the above said position and possession, there is no dispute between the parties as such. The dispute is only as regards the “B” schedule property. The “B” schedule property is described in the plaint as the common area in the ground floor of the “A” schedule property, where the bore well, motor and drainage junction is situated and shown red in colour in the plaint plan annexed with the plaint. In respect of the “B” schedule property alone, the plaintiff has lodged the suit for the relief of permanent injunction. The plaintiff claims the “B” schedule property to be the common property to the parties based on Ex.A1 settlement deed. In respect of the “B” schedule property alone, the plaintiff has lodged the suit for the relief of permanent injunction. The plaintiff claims the “B” schedule property to be the common property to the parties based on Ex.A1 settlement deed. According to the plaintiff, by way of Ex.A1 settlement deed, the “B” schedule property had been left in common to the usage of all the shareholders and it is his further case that the repair and maintenance charges with reference to the same should be met out in common by all the shareholders. Per contra, it is the case of the defendants that by way of Ex.A1, only the hand pump, motor, third floor facing the sky, staircase, Corporation tax and Metro Water Tax are left in common to all the shareholders and there is no reference about any bore well in the ground floor being left in common to all the shareholders and thus according to the defendants, the plaintiff cannot seek any relief as regards the non-existent bore well and thereby attempted to enter into the portion allotted to and in the possession and enjoyment of the defendants as per Ex.A1 settlement deed and accordingly, it is contended by the defendants that the plaintiff's has no cause of action to institute the suit and hence the suit is liable to be dismissed. 10. The main point that has to be determined is as to whether, as alleged by the plaintiff, the bore well and motor had been left in common to all the shareholders as per Ex.A1 settlement deed. On a perusal of Ex.A1 settlement deed, it is found that as put forth by the defendants, there is no reference about any bore well in the settlement deed as having been left in common to all the shareholders. On the other hand, it is seen that, only the hand pump, motor, third floor facing the sky, staircase, service connection, Corporation Tax, Metro Water Tax had been left in common to the shareholders. It is thus found that, it has not been explained by the plaintiff as to how he claims that the bore well has been left in common to the parties concerned under Ex.A1 settlement deed. It is thus found that, it has not been explained by the plaintiff as to how he claims that the bore well has been left in common to the parties concerned under Ex.A1 settlement deed. In this connection, the plaintiff examined as P.W.1, during the course of his evidence, has admitted that, under Ex.A1 settlement deed, only the hand pump, motor, terrace facing the sky, staircase, service connection, Corporation Tax, Metro Water Tax had been left in common to all the shareholders concerned and also further admitted in specific that there is no reference in the settlement deed Ex.A1 about any bore well left in the ground floor portion in common to all concerned. In such view of the matter, when the document relied upon by the plaintiff for claiming right to the bore well, does not specify any such bore well left in common to all the shareholders and when the same had also been clearly admitted by the plaintiff, as above noted, it does not stand to reason as to how the plaintiff would still claim that the bore well had been left in common in the ground floor portion for the usage of all the shareholders. Thus, it is found that the very base of the plaintiff's case is unsustainable. 11. The plaintiff's counsel would contend that the description of the motor as common to all the shareholders under Ex.A1 settlement deed would only denote that the bore well is in existence and accordingly, on that basis, the Court should presume that the bore well is also available in the ground floor portion and left in common as per the settlement deed Ex.A1. However, as per the case of the defendants, the motor that has been mentioned in the settlement deed relates to the sump to store metro water and further, it is the case of the defendants that the same is not being used by the concerned parties. Accordingly, it is seen that, when there is no specific mention about any bore well being left in common to all concerned in the ground floor portion, as rightly put forth by the defendants, the motor mentioned in Ex.A1 is refer ably only to the sump for storing and lifting the metro water. Accordingly, it is seen that, when there is no specific mention about any bore well being left in common to all concerned in the ground floor portion, as rightly put forth by the defendants, the motor mentioned in Ex.A1 is refer ably only to the sump for storing and lifting the metro water. The plaintiff cannot take advantage of the inclusion of the motor in the ground floor portion as also including the bore welll and thereby cannot be allowed to enter into the ground floor portion, which has been exclusively allotted to the defendants under Ex.A1. 12. If really, any such bore well had been left in common in the ground floor portion to all the parties under Ex.A1, as rightly put forth, the plaintiff at the time of institution of the suit would have endeavored to seek the appointment of the Commission for noting the physical features of the property involved in the matter to point out as to the existence of the bore well even prior to the institution of the suit. However, evidently, for the reasons best known to him, he had not chosen to seek the appointment of any commission to identify the physical features of the property, particularly, for noting the existence of any bore well in the ground floor portion as available, even prior to the institution of the suit. On the other hand, he would base his lis only on the strength of Ex.A1 for claiming that the bore well is also left in the ground floor portion for the common usage. However when it is seen that no such bore well is reflected in Ex.A1 settlement deed and the same is also admitted by the plaintiff as above noted, it is found that the case of the plaintiff that the motor referred to in Ex.A1 settlement deed would probabilise the existence of bore well also cannot be accepted in any manner, on the other hand, as rightly put forth by the defendants, the reference of the motor in the settlement deed denoting and is meant only for drawing the metro water stored in the sump and the same is not currently in use, it is found that the plaintiff, for one reason or the other, is attempting to enter into the defendants' portion in the guise of effecting the repairs of the non-existent borewell. In such view of the matter, when the document of title relied upon by the plaintiff for alleging the existence of the bore well as being left in common in the ground floor portion and when the said document does not point to any such scenario, it is seen that the very base of the plaintiff's suit has to fail. 13. However, the plaintiff is found to have lodged some complaint against the defendants, as if the defendants had prevented the plaintiff and the plumber from effecting the repairs in the bore well. In this connection, the copy of the complaints had been exhibited. Further, the alleged treatment given to the plumber, who is said to have been assaulted by the defendants had also been exhibited as documents. The plumber has also been examined as P.W.2. On the strength of the above said documents, the Courts below seem to have been carried away and thereby proceeded to hold that the bore well had been left in common in the ground floor portion and accordingly, the defendants are not entitled to prevent the plaintiff from effecting the repairs to the same for the purpose of the common enjoyment of the same. However, when the document relied upon by the plaintiff for the common right to the bore well in question marked as Ex.A1 does not point to the existence of any borewell, it is seen that the Courts below without assessing the said document in the right perspective appear to have proceeded to uphold the plaintiff's case based on the police complaints and the medical records of P.W.2 exhibited in the matter. In addition to that, the Courts below seem to have shifted the burden on the defendants, as if they had failed to establish the non-existence of the borewell by taking out a commission. When the plaintiff has come forward with the case seeking the reliefs based on a particular set of facts and when the same had been denied stoutly by the defendants, it is the plaintiff, who is the suitor, who has to establish the case by placing acceptable and reliable evidence. On the other hand, the plaintiff cannot be allowed to pick holes in the defence version and thereby endeavour to sustain his claim. On the other hand, the plaintiff cannot be allowed to pick holes in the defence version and thereby endeavour to sustain his claim. Other than the police complaints and the medical records of P.W.2, no other valid material has been placed by the plaintiff to show that any such borewell as described in the B schedule property had been left to the common usage by the settlement deed Ex.A1. In such view of the matter, the upholdment of the plaintiff's case by the Courts below on the basis of the police complaints is found to be unsustainable in the eyes of law. The police complaints cannot be the basis for upholding the plaintiff's claim of title, even to a common title as regards a non-existent borewell and accordingly, it is seen that the reasonings and conclusions of the Courts below for upholding the plaintiff's case could only be described as illogical and perverse as they are not based on acceptable title records. The further reasonings of the Courts below that the defendants had failed to establish the inclusion of motor in the settlement deed Ex.A1, however when as above noted the defendants have offered the plausible explanation as to the existence of the motor in the settlement deed referably to the drawing of the sump water for lifting the metro water stored in the sump and the same is not in current use, the same cannot be taken advantage of the plaintiff by contending that the motor is installed only for the usage of the bore well, failing to show a specific reference about the bore well being mentioned in Ex.A1 settlement deed. The defendants had contended that only after the institution of the suit, with the help of police, the plaintiff is attempting to install a new bore well in the ground floor so as to hinder the enjoyment of the ground floor portion. The defendants had contended that only after the institution of the suit, with the help of police, the plaintiff is attempting to install a new bore well in the ground floor so as to hinder the enjoyment of the ground floor portion. As above noted, when Ex.A1 settlement deed is not useful to sustain the plaintiff's case and the plaintiff has not endeavored to take out a commission at the time of the institution of the suit for noting the existence of a bore well prior to the institution of the suit, on the other hand, he appears to have relied upon the police complaints for sustaining his case and when the police complaints cannot be the foundation for upholding the plaintiff's claim of right to a non-existing bore well and on the other hand, as rightly put forth by the defendants, the plaintiff is attempting to install a new bore well in the ground floor portion allotted to the defendants in the guise of the police complaints and furthermore, when the plaintiff has not established as to the final outcome of the alleged complaint said to have been preferred by him with the police and according to the defendants, the same had been created only for the purpose of the case which cannot be easily brushed aside and when it is further seen that the evidence of P.W.2, the plumber, would not in any manner be useful to sustain the plaintiff's claim of alleged title to the bore well, in all, it is seen that the grant of relief’s by the Courts below in favour of the plaintiff cannot at all be countenanced in any manner and thus it is seen that the judgment and decree of the Courts below are liable to be set aside. 14. In this Second Appeal, though the arguments had been put forth by the defendants that they were not heard at the time of the hearing of the first appeal, however, considering the judgment and decree of the first appellate court in toto, it is seen that the defendants were heard by the first appellate court and accordingly, the first appeal had come to be disposed of by the first appellate court. In the light of the above position, it is seen that the contention of the defendants' counsel that the judgment and decree of the first appellate court is liable to be set aside, on the footing that the first appellate court had not followed the principles of law outlined in the decision of the Apex Court reported in 2014 (4) LW 791 [ Harbans Pershad Jaiswal (D) by Lrs Vs. Urmila Devi Jaiswal (D)], as such cannot be countenanced. Accordingly, it is seen that the main point that arises for consideration in this Second Appeal is whether the Courts below are justified in entertaining the plaintiff's case on the basis of the materials placed on record. In the light of the above discussions, when it is seen that the plaintiff has failed to establish his case in toto and when the materials projected by him, do not in any manner advance his case as to the existence of a bore well prior to the institution of the suit, it is seen that the plaintiff has no cause of action to lay the suit against the defendants. The substantial questions of law formulated in the second appeal are accordingly answered. 15. In conclusion, judgment and decree dated 20.10.2014 passed in A.S.No.318 of 2013 on the file of the V Additional Judge, City Civil Court, Chennai confirming the judgment and decree dated 16.04.2013 passed in O.S.No.1966 of 2012 on the file of the XIV Assistant Judge, City Civil Court, Chennai are set aside. Resultantly, the suit laid by the plaintiff in O.S.No.1966 of 2012 is dismissed with costs. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.