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2017 Supreme(Mad) 2904
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
A. Somasundaram - Appellant
Vs.
Thirulochani Devi - Respondent
S.A. No. 722 of 2001
Decided On : 30-10-2017
For the Appellant : Mr. T. Ayyasamy
For the Respondent: Mr. T.P. Manoharan, M/s. S. Hemalatha
The main legal point established in the judgment is the importance of considering all evidence and objections raised by both parties before reaching a decision.
Headnote:
Injunction - Property Dispute - [Suit for permanent injunction and mandatory injunction] - [No specific act section referenced] - The court found that the common wall between the properties of the parties should be maintained in good condition without weakening it. The defendant's construction was found to weaken the common wall, leading to cracks. The court accepted the plaintiff's case based on the Engineer's report, but the objections raised by the defendant were not considered. The matter was remitted back to the trial court for further hearing and evidence.
Fact of the Case:
The plaintiff claimed to be the sole owner of a property with a common wall, while the defendant claimed equal rights over the common wall. The plaintiff alleged that the defendant's construction weakened the common wall, causing cracks on the plaintiff's side. The defendant denied tampering with the common wall and argued that the plaintiff's poor maintenance caused the cracks.
Finding of the Court:
The court found in favor of the plaintiff based on the Engineer's report, but the objections raised by the defendant were not considered. The court set aside the judgment and remitted the matter back to the trial court for further hearing and evidence.
Issues: The main issue was the weakening of the common wall due to the defendant's construction, leading to cracks on the plaintiff's side. The court also considered the acceptance of the Engineer's report and the objections raised by the defendant.
Ratio Decidendi: The court's decision was influenced by the Engineer's report, which supported the plaintiff's claim. However, the court noted that the objections raised by the defendant were not properly considered, leading to the decision to remit the matter back to the trial court for further hearing and evidence.
Final Decision: The judgment and decree of the Courts below were set aside, and the matter was remitted back to the trial Court for further hearing and evidence.
In this second appeal the judgment and decree dated 01.12.2000 passed in A.S.No.184/98, on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 15.07.97 passed in O.S.No.820 of 1991, on the file of the VI Assistant Judge, City Civil Court, Chennai is impugned.
2. The parties are referred to as per their rankings in the Trial Court.
3. Suit for permanent injunction and mandatory injunction.
4. The case of the plaintiff in brief is that she is the sole and absolute owner of the land and the super structure described in the plaint "A" schedule property, having purchased the same for valuable consideration from Padmavathy Ammal, vide registered sale deed dated 26.02.1975 and the defendant is the owner of the property described in the plaint "B" schedule, he having purchased the same under the same Padmavathy Ammal, as per the registered sale deed dated 14.03.1973 and the property purchased by the plaintiff is facing Vasu street and the property purchased by the defendant is facing Rajarathinam street and in between the properties of the plaintiff and defendant, there is a common wall running from north to south, which divides both the properties and the same to be used in common by both the plaintiff and the defendant and since both the properties of the plaintiff and the defendant were purchased from the common predecessor in title, necessary recitals are incorporated in their sale deeds that the common wall should be kept in good condition and the parties should not do anything to the common wall, which would weaken the same and should also keep the common wall in good condition and thus the common wall between the properties of the parties should be maintained in good condition without indulging in any detrimental acts, which shall weaken the same.
5. While so, the defendant attempted to put up new construction over and above his property, especially, on the side of the common wall and started removing the bricks on the defendant's side from the common wall, thereby weakening the same and also attempted to put up new super structure bearing the load on the common wall, which shall definitely weaken the same and unlawfully removing the bricks from the common wall on his side thereby, the common wall on the side of the plaintiff's property had developed cracks but the defendant cannot be allowed to disturb, dismantle or weaken the common wall in between the properties of the parties and hence, the plaintiff is necessitated to lay the suit for appropriate reliefs.
6. The case of the defendant in brief is that it is true that both the plaintiff and defendant purchased their respective properties from the common owner namely Padmavathy Ammal and it is true that the common wall is situated between the properties of the parties and the defendant is aware of the recitals found in the sale deeds of the parties, as regards the maintenance of the common wall in good condition without doing any acts detrimental to the interest of the parties and the defendant had put up the construction long back and by way of the same, in no way tampering of the common wall. The defendant has no reason to remove the bricks from the common wall and has not removed any. The defendant has avoided any strain on the common wall and the construction in the first floor of the defendant's property is raised on a separate concrete beam resting on the walls running east to west in the defendant's property and the allegation that the common wall on the side of the plaintiff's properties had developed cracks because of the removal of the bricks on the defendant's side is false. It is false to state that the defendant is attempting to dismantle and meddle with the common wall. The defendant has equal right and interest over the common wall. The defendant has obtained sanction of the plan for his construction and hence, the suit without any cause of action is liable to be dismissed.
7. In the additional written st
