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2018 DIGILAW 3848 (MAD)

Janakiammal (Died) v. Manjula Devi

2018-10-22

C.V.KARTHIKEYAN

body2018
JUDGMENT C.V. Karthikeyan, J. The plaintiffs in O.S.No.394 of 1985 are the appellants in S.A.No.873 of 1996. The first defendant in the said suit is the cross objector in Cross Objection No.84 of 2000. 2. O.S.No.394 of 1985 on the file of the Principal District Munsif Court, Sathur, had been filed for declaration that the wall described in schedule 'A' of the plaint is the exclusive and common wall of the plaintiffs and second defendant and for mandatory injunction directing the first defendant to remove the rods and fence put up over the 'B' schedule property, which was described as vacant land and for declaration that the 'B' schedule property, is a common path belonging to the plaintiff, 2nd defendant and 3rd defendant. This suit had come up for consideration before the learned Principal District Munsif, Sathur, who by judgment dated 19.06.1990, decreed the suit with costs. Challenging the said judgment and decree, the first defendant filed A.S.No.138 of 1990 on the file of the Subordinate Court, Srivilliputhur. The learned Subordinate Judge, Srivilliputhur, by judgment and decree dated 28.11.1994, had partly allowed the first appeal and the 'B' schedule, which was described as vacant land and which the trial Court had decreed as a common lane, was decreed to belong exclusively to the first defendant. Further, the relief of mandatory injunction granted by the trial Court to remove the rods fixed over the vacant land from the wall was set aside. The judgment of the trial Court regarding the declaration of title of the wall alone was upheld. Challenging that judgment, the plaintiffs had filed S.A.No.873 of 1996 insofar as the declaration with respect to the vacant land was concerned. The first defendant filed Cross Objection No.84 of 2000, challenging the judgment of the first appellate Court insofar as the declaration regarding the 'A' schedule was concerned. O.S.No.394 of 1985:- 3. Challenging that judgment, the plaintiffs had filed S.A.No.873 of 1996 insofar as the declaration with respect to the vacant land was concerned. The first defendant filed Cross Objection No.84 of 2000, challenging the judgment of the first appellate Court insofar as the declaration regarding the 'A' schedule was concerned. O.S.No.394 of 1985:- 3. Seven plaintiffs, who were the legal heirs of Kulavilangu Nadar, had filed the suit against the 1st defendant, Manjula Devi, 2nd defendant, Mallika and the 3rd defendant, Ayyachami Nadar, seeking a declaration that the 'A' schedule described in the plaint, which was a wall measuring East- West 19+ feet and North-South 1s feet, being the southern wall of D.No.145, Periya Pallivasal Street, Palayamkottai Town, is a exclusive wall of the plaintiffs and for a mandatory injunction directing the first defendant Manjula Devi to remove the rods fixed and the fence put up over the 'B' schedule property from the 'A' schedule wall and also for a declaration that the 'B' schedule property, which is the vacant land measuring East-West 15 feet and North-South 3 feet situated in between the house of the plaintiffs and the house of the third defendant on the south to the east of Periya Pallivasal Street and west of the house first defendant as a common lane. 4. According to the plaintiffs, the house of the plaintiffs originally belonged to Sangaiya Nadar. The wall on the southern side was a part of the said house and the exclusive wall of the house belonging to Sangaiya Nadar. He was also enjoying the lane to the south of the said wall. He died about 15 years ago leaving behind two sons, Marimuthu Nadar and Kulavilangu Nadar. There was a partition between the two brothers by a registered partition deed dated 18.02.1940. The house along with the right in common lane was allotted to Kulavilangu Nadar. He was in possession till his death. He had been treating the 'A' schedule wall as his exclusive wall and 'B' schedule property as a common lane. 5. The plaintiffs are the wife, sons and daughters of Kulavilangu Nadar. They had succeeded to the house property along with exclusive right over the wall and also the common lane. The third defendant is in the opposite house of the plaintiffs has also been using the lane as common lane. 5. The plaintiffs are the wife, sons and daughters of Kulavilangu Nadar. They had succeeded to the house property along with exclusive right over the wall and also the common lane. The third defendant is in the opposite house of the plaintiffs has also been using the lane as common lane. The first defendant had purchased the property on the east of the common lane on 13.09.1977 from Karmegam Asari and Others. She had included the 'B' schedule property as part of her house. Her predecessor-in-title did not enjoy the said property. The said property was used to repair and white wash the wall of the plaintiffs. The first defendant had put up a door way to have access to the 'B' schedule property, soon after her purchase. The first defendant laid cement flooring and constructed a latrine in the 'B' schedule property. The first defendant removed the surface of the wall to a depth of 6 inches and put up iron fence covering the top of 'B' schedule property by inserting rods in the 'A' schedule wall. The third plaintiff gave a police complaint on 12.08.1985. The police instructed the plaintiffs to approach Civil Court. The plaintiffs then reported the issue to the elders of the place. The first defendant refused to participate in the proceedings. Hence, the suit had been filed seeking declaration with respect to the wall and declaration that the lane is a common path and mandatory injunction to remove the rods, which had been fixed to the wall by the first defendant. 6. The first defendant filed her written statement. She claimed that the 'B' schedule lane exclusively belonged to her. She also claimed that 'A' schedule wall was common to the plaintiffs and also to the adjacent neighbour Sathyabama and also to the first defendant. It was stated that the first defendant purchased the property from Karmegam Asari. He had purchased the property on 07.06.1960. In his sale, the lane was specifically included and Karmegam Asari and his wife Thangammal were enjoying the vacant lane along with the house. The latrine was in existence, even at the time of her purchase. The first defendant purchased the property by sale deed dated 13.09.1977. The sale schedule included the lane. Since the latrine was in dilapidated condition, it was not mentioned in the sale deed. The latrine was in existence, even at the time of her purchase. The first defendant purchased the property by sale deed dated 13.09.1977. The sale schedule included the lane. Since the latrine was in dilapidated condition, it was not mentioned in the sale deed. The first defendant's door way was in existence even at the time of her purchase. The first defendant reconstructed the latrine and she also put up fence over the lane by inserting rods over the wall. The first defendant claimed that she has every right to do so, since the lane was her exclusive lane and the wall is a common wall, not only to the plaintiffs, but also to the first defendant and the other neighbor Sathyabama. It was contended that the suit has to be dismissed. 7. On the basis of the above pleadings, the learned Principal District Munsif, Sathur, framed the following issues for trial: "(a) Whether the 'A' schedule wall exclusively belonged to plaintiffs and 2nd defendant? (b) Whether 'B' schedule was a common land belonging to the plaintiffs and 3rd defendant? (c) Whether Sathyabama was a necessary party and whether the suit is bad for non-joinder of necessary parties? (d) Whether the plaintiff is entitled to the reliefs of declaration and injunction? (e) To what other reliefs, the plaintiffs are entitled to?" 8. During trial, the 3rd plaintiff, Mariappan was examined as PW-1 and the husband of the first defendant Chokkalal was examined as DW-1. The plaintiffs marked Ex-A1 to Ex-A13. Ex-A2 is the title deed of the property and Ex-A3, Ex-A4, Ex-A5, Ex-A6 and Ex-A7 are the various mortgages created over the property by Sangaiya Nadar. Ex-A8 is the partition deed, dated 18.02.1940, between Marimuthu Nadar and Kulavilangu Nadar, sons of Sangaiya Nadar. Ex-A10, dated 27.03.1940, is a lease deed in favour of Senthi Nadar. Ex-A11 is the lease deed, dated 21.11.1952, in favour of Ramasmy Nadar executed by Kulavilangu Nadar. Ex-A12 is the town survey plan for T.S.No.544. On the side of the defendants, Ex-B1 to Ex-B14 were marked. Ex-B3 dated 07.06.1960 is a sale deed in favour of Karmegam Asari. Ex-B4, Ex-B5, Ex-B6, Ex-B7, Ex-B8 and Ex-B9 are the various mortgages and leases executed over the property of the first defendant. Ex-B10 is the sale deed, dated 13.09.1977, in favour of the first defendant executed by Karmegam Asari. Ex-B3 dated 07.06.1960 is a sale deed in favour of Karmegam Asari. Ex-B4, Ex-B5, Ex-B6, Ex-B7, Ex-B8 and Ex-B9 are the various mortgages and leases executed over the property of the first defendant. Ex-B10 is the sale deed, dated 13.09.1977, in favour of the first defendant executed by Karmegam Asari. Ex- B13 is the town survey plan for T.S.No.545 and 547/4. Ex-B14 is the town survey plan for T.S.No.544. During trial, Advocate Commissioner had also been appointed and his report was marked as Ex-C1and sketch was marked as Ex-C2. 9. On the basis of the oral and documentary evidence, by judgment dated 19.06.1990, the learned Principal District Munsif, Sathur, relying on Ex-C1, the report of the Advocate Commissioner, had found that rods were fixed on the 'A' schedule wall. It was also found that the 'A' schedule wall was the southern wall of the plaintiffs' house. It was also found that if it had been common wall, then the rods could not have been fixed over the wall. It was, therefore, held that the 'A' schedule wall is the exclusive wall of the plaintiffs. It was also held that since the rods were inserted over the wall to a extent of 3/4 feet, the lane must also be a common lane enjoyed also by the plaintiffs. It was stated that the lane was used to white wash and maintain the wall. It was also stated that in Ex-A5 of the year 1929, the boundary of the plaintiffs' house was shown as north of the common wall. 10. It was further held that the plaintiffs had a right to use the lane, since it was a common lane. The house on the other side of the lane belonged to the third defendant. Consequently, the learned Judge accepted the contention of the plaintiffs that the lane was a common lane used by plaintiffs and 2nd and 3rd defendants. It was also found that in Ex-A12, the town survey plan, the lane was shown as part of T.S.No.545. Hence, it was found that the lane was a common lane used for the maintenance and white washing the wall. It was consequently held that the first defendant did not have any exclusive right or title over the 'A' schedule wall. It was conclusively held that the lane is a common lane and the first defendant cannot claim exclusive title over the common lane. It was consequently held that the first defendant did not have any exclusive right or title over the 'A' schedule wall. It was conclusively held that the lane is a common lane and the first defendant cannot claim exclusive title over the common lane. In view of the above, the suit was decreed as prayed for with costs. A.S.No.133 of 1990:- 11. The first defendant filed A.S.No.133 of 1990 before the Subordinate Court, Srivilliputhur, challenging the judgment and decree of the learned Principal District Munsif, Sathur. By judgment dated 28.11.1994, the learned Subordinate Judge re-examined the evidence on record and also framed points for determination. It must also be mentioned that before the first appellate Court, the 3rd defendant had filed I.A.No.379 of 1994 under Order 47 Rule 27 of CPC to file additional documents. Both the appeal and the application were taken up together by the learned Judge it was and found that PW-1, the 3rd plaintiff, had admitted that the first defendant had put up a door facing the lane and she had also put up ventilator window and had constructed a latrine and also put up cement flooring and also a fence on the top of the lane by inserting rods into the wall, ownership of which was claimed by the plaintiffs. He observed that the plaintiffs had not protested about these constructions. It was also found that the door of the first defendant faced the lane. 12. The learned Subordinate Judge did not agree with the findings of the learned Principal District Munsif that the lane was a common lane also used by the plaintiffs. It was held that the learned Principal District Munsif did not properly appreciate the Commissioner's report and plan. The learned Subordinate Judge found that in the title deed of the first defendant, the schedule included the lane and held that the lane was the exclusive lane of the first defendant. He also held that the wall was the exclusive wall of the plaintiffs. The learned Judge rejected the application seeking to file additional documents. The learned Subordinate Judge found that in the title deed of the first defendant, the schedule included the lane and held that the lane was the exclusive lane of the first defendant. He also held that the wall was the exclusive wall of the plaintiffs. The learned Judge rejected the application seeking to file additional documents. Consequently, the appeal was partly allowed and the plaintiffs were granted an declaration only with respect to the 'A' schedule wall and the suit was dismissed with respect to the declaration that the 'B' schedule lane is a common lane and also with respect to the relief of mandatory injunction to remove the rods fixed over the wall. It was also held that the plaintiffs can maintain the wall and for white washing and other purpose, permission should be granted by the first defendant. S.A.No.873. of 1996 and Cross Objection No.84 of 2000:- 13. Challenging the judgment and decree of the first appellate Court, the plaintiffs filed S.A.No.873 of 1996 and the first defendant field Cross Objection No.84 of 2000. Pending appeal, the 1st, 2nd and 7th appellants, who were the plaintiffs died. A Memo was filed that the legal heir of the 1st and 2nd appellants were already on record and that legal heir for the 7th appellant need not brought on record. Similarly, in the cross objection, 1st, 2nd and 7th respondents had died and 9th respondent, who was the 3rd defendant in the suit had been given up. 14. The second appeal had been admitted on the following substantial questions of law: "(1) Whether the lower appellate court erred in law and misdirected itself in negativing the claim of the plaintiffs with respect to 'B' schedule property without properly appreciating and adverting to Ex-A2 to Ex-A11 documents, which are prior in point of time and which would prove the existence of common lane in preference to the documents relied upon by the first respondent which are later in point of time? (2) Whether in law the documents relied upon by the first respondent and as accepted by the lower appellate Court that 'B' schedule property exclusively belong to her, is binding upon the appellants to which neither they nor their predecessor-in-title are parties? (2) Whether in law the documents relied upon by the first respondent and as accepted by the lower appellate Court that 'B' schedule property exclusively belong to her, is binding upon the appellants to which neither they nor their predecessor-in-title are parties? (3) Whether the lower appellate Court erred in law and misdirected itself in holding that the common lane mentioned in the prior documents of title of the plaintiff ceased to exist on and after 1945, by virtue of Ex-B1 and Ex-B2 documents on mere assumptions and presumptions and in the absence of any evidence?" 15. Heard arguments advanced by Mr.P.Athimoola Pandian, for Mr.N.Damodan, learned Counsel for appellants and 3rd to 6th respondents in cross objection and Mrs.P.Jessi Jeevapriya, learned Counsel for the first respondent in second appeal and cross objector. 16. The parties would be referred as plaintiffs and defendants for the sake of convenience. 17. Ex-A1 marked during trial, a rough sketch giving the lay out of the houses of the plaintiffs, 1st defendant, 3rd defendant and Sathyabama, neighbor of the plaintiffs and also the disputed lane, is as follows: IMAGE 18. This plan was also filed along with plaint. The plaintiffs house is ABCD. The house of the 1st defendant is LGHS. EFJK is the houses of the 3rd defendant. The 'A' schedule wall is DC. 'B' schedule lane is DLFE. The above plan has to be compared with the plan given by the Commissioner in Ex-C2, which as follows: IMAGE AB-East-West Wall ('A' Schedule property) ABCD-East-West Lane ('B' Schedule property) AJEF - 1st plaintiffs house (Door No.145) CDGH - 3rd defendant's house (Door No.146) BKHJ - 1st defendant's house (Door No.147) 19. It is seen that the first defendant had constructed a door opening towards 'B' schedule lane. The main entrance of the house of the first defendant is on the southern side. The 'A' schedule wall, which is the southern wall of the plaintiffs' house has no connection with the property of the first defendant. Similarly, the property of the first defendant has no connection with the lane except by the fact that the first defendant had put up a door and had constructed a toilet and also had put up fence over the lane. This naturally means that the first defendant had encroached on the lane. The lane is only three feet width. According to the Commissioner, it is 2.8 feet width. This naturally means that the first defendant had encroached on the lane. The lane is only three feet width. According to the Commissioner, it is 2.8 feet width. It is 14 feet length, and according to Ex-A1, it is 15 feet in length. This lane is situated at the extreme south of the house of the plaintiffs and the 3rd defendant. 20. The topography of the area has been properly appreciated by the trial Court and first appellate Court. However, the trial Court had held that the lane is used in common by both the plaintiffs and the 3rd defendant. They used it only for the purpose of maintaining their respective walls for white washing and repairing works. It has also been observed by the trial Court that there are iron rods inserted on the 'A' schedule wall and these rods protruded over the wall. The lower appellate Court on the other hand held that the lane is the exclusive lane of the first defendant. 21. The first substantial question of law is whether the lower appellate Court misdirected itself without properly appreciating Ex-A2 to Ex- A11. All these documents show that the southern boundary of the plaintiffs house is a common lane. This has been consistently given in the documents of the plaintiffs. In Ex-A2, dated 04.02.1889, the southern boundary of the predecessor-in-title of the plaintiffs was shown as common lane. This document is the earliest document produced by both sides. Consequently, the documents of title also establish that the southern boundary of the plaintiffs' house is a common lane. The documents produced by the first defendant are much later in time. 22. Both the Courts held that the Wall is exclusively belongs to the plaintiffs. The only point under dispute is about the usage of common lane. The common lane has to be used in common by the plaintiffs and the 3rd defendant and also by the first defendant to maintain the southern and northern wall of the plaintiffs and the 3rd defendant. 23. The lower appellate Court also pointed out the evidence of PW-1, wherein, he had mentioned that the first defendant had constructed latrine, opened a door and also put up fence over the lane. 23. The lower appellate Court also pointed out the evidence of PW-1, wherein, he had mentioned that the first defendant had constructed latrine, opened a door and also put up fence over the lane. This evidence has been critically analysed by the lower appellate Court by stating that the date on which those constructions were put up were not mentioned in the plaint or during oral evidence. It must kept in mind that an explanation had been given that the plaintiffs were not aware of the exact date. It must also be stated that in Ex-B10, which is the sale deed in favour of the first defendant, there is no mention of latrine in existence. 24. In view all the above discussions, I hold that the judgment and decree of the first appellate Court has to be interfered with only to the extent regarding the finding that the suit should be dismissed with respect to the declaration that the lane is a common lane and that it exclusively belongs to the first defendant. That portion of the findings of the first appellate Court judgment is set aside. With respect to the relief of mandatory injunction, I hold that the removal of the latrine alone would suffice. 25. The cross objection had been filed by the first defendant challenging the concurrent findings of the both the trial Court as well as the first appellate Court that the 'A' schedule wall belongs to the plaintiffs. It is seen that the boundary of the plaintiffs is the common lane as given in their title deed. The wall consequently has to be declared as the exclusive wall of the plaintiffs. There cannot be any dispute that the wall is the exclusive wall of the plaintiffs. It is the boundary wall of the house of the plaintiffs. There are no appurtenants put up over the said wall. I find no reason to differ with the concurrent findings of the trial Court and the first appellate Court in this regard. In view of the above reasoning, the Cross Objection is dismissed. 26. In the result, (1) S.A.No.873 of 1996 is allowed, however, without costs. (2) Cross Objection No.84 of 2000 is dismissed again without costs. (3) The judgment and decree in A.S.No.133 of 1990 on the file of the Subordinate Court, Srivillputhur, dated 28.11.1994 is set aside. In view of the above reasoning, the Cross Objection is dismissed. 26. In the result, (1) S.A.No.873 of 1996 is allowed, however, without costs. (2) Cross Objection No.84 of 2000 is dismissed again without costs. (3) The judgment and decree in A.S.No.133 of 1990 on the file of the Subordinate Court, Srivillputhur, dated 28.11.1994 is set aside. (4) Judgment and decree in O.S.No.394 of 1985 on the file of the Principal District Munsif Court, Sathur, dated 19.06.1990 is modified to the extent that there will be a mandatory injunction to remove the latrine alone constructed in the common lane. In all other respects, the judgment and decree in O.S.No.394 of 1985 on the file of the Principal District Munsif Court, Sathur, dated 19.06.1990 is confirmed.