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2012 Supreme(Mad) 816
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T. RAJA
Mrs. Suvabai & Others
Versus
Bhaskara Reddiar
Second Appeal No.376 of 2006
Decided On : 15-02-2012
For the Appellants:R. Subramanian for M/s. P. Veeraraghavan, Advocates.
For the Respondent:V. Raghavachari, Advocate.
Headnote:CIVIL PROCEDURE CODE, 1908 - ORDER 39, RULE 5 - Right for declaration and injunctions regarding passage - Held, when the Courts below have held that the plaintiffs are entitled to the relief of declaration and permanent injunction, they are also well within their rights of mandatory injunction. Because, the refusal of mandatory injunction after granting declaration and permanent injunction to say the least, both the Courts below have overlooked the legal aspect that the first two prayers of the plaintiffs’ exclusive right to use the ABCD passage and permanent injunction against the defendant from interfering with the plaintiffs’ enjoyment of the said ABCD passage could not be executed. This relief of mandatory injunction is legally bound to be granted to the plaintiffs/appellants herein, on the principle that the owner of the property is entitled to have his right exercised up to the sky and in such a case, aerial projection cannot be permitted - 2011 (6) MLJ 544 relied on - Plaintiffs/appellants herein, who have succeeded in respect of two prayers before the Courts below for refusal of mandatory injunction alone, have filed appeal before the first appellate Court. But, after the dismissal of the defendant’s appeal, the defendant has accepted the case of the plaintiffs. Under these circumstances, by applying the ratio laid down by this Court in Lakshmanan’s case that the owner of the property is entitled to have his right exercised up to the sky and in such a case, aerial projection cannot be permitted - Order of lower court reversed in Second Appeal.
Result : Second Appeal allowed with directions.
1. The appellants herein filed a suit as plaintiffs in O.S. No.427 of 1996 on the file of the District Munsif-cum-Judicial Magistrate, Thirukazhikundram, seeking a prayer---
a) for declaration of the plaintiffs' exclusive right to use the ABCD passage absolutely for the plaintiffs convenient use and enjoyment of their house property lying north of it;
b) for permanent injunction against the defendant restraining him and his men or agents from in any way interfering with the plaintiffs' user and enjoyment of the said ABCD passage through the doorway opened by the defendant;
c) for a declaration that any recital in the sale deed of the defendant dated 27.02.1986, about the passage right in the ABCD portion is invalid and not binding on the plaintiffs
d) for a mandatory injunction directing the defendant to remove his tap connection extended through the ABCD passage abutting the BC wall and also the sunshade put up over the window as well as the closing of the doorway at point "E" within the time.
2. The averments made in the plaint, in brief, are recapitulated below for better appreciation.
The first plaintiff is the wife of Late Suganraj Sowcar, and the plaintiffs 2 and 3 are the sons of Suganraj Sowcar born to the first plaintiff. Suganraj Sowcar, by a sale deed dated 05.10.1957, had purchased a shop bearing Door No.2 and the residential portion bearing Door No.3, with the half share right and title in the said ABCD passage from one Veeraraghava Chettiar, starting from Mettu Street. By another sale deed dated 22.01.1959-Ex.A4, a vacant site belonging to Kutti Bai and Chandra Bai measuring 26' from North to South and 21' from East to West at the northern side and 17 < 'of Southern side, was purchased from Chandra Bai and others. In the said sale deed, dated 22.01.1959, the Vendors have clearly mentioned that their < share right and title in the ABCD have been sold to Suganraj. In view of that, Kutti Bai and Chandra Bai have equally got quarter share in the ABCD passage for their two tiled house property bearing Door Nos.37 and 38, South Mada Street, Thirukalikundram. Thereafter, on 10.02.1975, the second plaintiff has purchased the northern tiled house with backyard upto dry latrine at the east from the Chandra Bai and others for Rs.11,022/-, under a registered sale deed with 1/8th share right, title in the ABCD portion. The heirs of Kutti Bai have sold the southern side tiled house in South Mada Street, Thirukalikundram to one C.Subramania Chettiar of Chengalpattu. The second plaintiff, on 06.04.1981, under a registered sale deed from C.Subramania Chettiar and others, has purchased the same for Rs.26,000/-, inclusive of 1/8th share right and title in the ABCD passage. Thus, the plaintiffs have become the absolute owner of the ABCD passage. After the life time of Suganraj Sowcar, the plaintiffs, who are the heirs as well as the purchasers under different sale deed, are enjoying the ABCD passage. Since the plaintiffs have been enjoying the ABCD passage more than 35 years, nobody has got any right over the same, except the plaintiffs.
3. It is seen further in the claim statement that, in the northern wall, there is a door opening to enable the scavenger to come through the ABCD passage and to clean the septic tank latrines of the plaintiffs located in Door No.3 of Mettu Street. Whileso, the defendant, during the plaintiffs' absence, extended the tap connection lying in the front side of his shop through the passage by placing 'U' shaped angles and also opened a door in the middle of the passage and also a window on his wall. Apart from that, the defendant has put up sunshade over the window to the north of the said wall. In view of this act of the defendant, the plaintiffs have filed a suit in O.S.No.427 of 1996, before the District Munsif-cum-Judicial Magistrate, Thirukazhikundram, with the aforesaid prayer.
4. The defendant, by filing a written statement, contended that the defendant has purchased 0.02 5/8 cent w
