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2019 Supreme(Mad) 1494
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. Seshasayee, J.
Amirtham - Appellant
Versus
Lalithamani - Respondent
S.A. No. 116 of 2008
Decided On : 01-02-2019
For the Appellant :V. Manohar, Advocate.
For the Respondent:K. Ragupathy, Advocate.
Headnote:
Code of Civil Procedure - Section 100 - Suit is laid for mandatory injunction - Produced any evidence - Against judgment - Defendant in her written statement would allege that her husband had purchased the property and that suit property actually fall within her property and is not part of plaintiffs property - It is further alleged that plaintiff has put up a construction in her property up to her eastern boundary wall and there is no property matching description of suit property that lie beyond her eastern wall - In fact construction in plaintiffs property was put up by plaintiffs father and when this defendant objected to said construction that he had not left any vacant space beyond its eastern wall he agreed that defendants husband could construct his bathroom etc touching his eastern wall – Held, Turning to second part nowhere in Ext.B-2 had plaintiffs father seen conceded that strip of land belonged to defendants husband - He had merely permitted to construct his bathrooms touching his eastern wall and had hence required to ensure that said eastern wall was not damaged - He had also reserved his right to enter through property for maintaining his eastern wall - Now irrespective of if Ext.B-2 was confronted to P.W.1 or not document does not indicate that may be termed as an admission by plaintiffs father of title of defendants husband - This Court finds that first appellate court has egregiously erred in constructing Ext.B-2 way it has constructed - In other words while plaintiff does not dispute title of defendant to her property purchased under Ext.B-1 defendant too does not dispute title of plaintiffs property which her father had purchased under Ext.A-1 - Confusion and conflict is about whether suit property that lie about middle of both properties of plaintiff and defendant is part of plaintiffs property or not - If suit is property is part of plaintiffs property covered under Ext.A-1 then inasmuch as defendant does not dispute Ext.A-1 it cannot be said that she has raised an issue on title to suit property pointedly - Commissioner appointed by first Appellate Court has identified suit property within property covered by Ext.A-1 And his report ExtC-3 and C-4 remain un impeached - Defendant has not produced any evidence that may otherwise reduce evidentiary value of Commissioners report - This Court holds that in instant case there is no dispute on title to property is involved and consequently suit as framed is maintainable - Appeal is allowed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 08.08.2007 made in A.S.No.23 of 2004 on the file of the First Additional Subordinate Court at Coimbatore filed against the Judgment and Decree dated 08.03.2004 made in O.S.No.2232 of 1994 on the file of the III Additional Munsif Court at Coimbatore by reversing the judgment made in suit.)
1. The plaintiff in O.S.No.2232 of 1994 on the file of III Additional Munsif Court at Coimbatore, having succeeded before the trial Court, but lost before the first Appellate Court in A.S.No.23 of 2004 has come before this Court. The suit is laid for mandatory injunction. Parties would be referred to by their rank before the trial court.
2. The facts leading to this case are in narrow compass:
The suit property is described as a narrow strip of land measuring 2' X 58' running north to south. The properties of the plaintiff and the defendant lie adjacently, and the defendant's property lie to the east of plaintiff's property. The aforesaid suit property lies between these two properties and controversy now required to be addressed in this appeal is in whose property the suit property lies.
The case of the plaintiff is that on 12.02.1979 she had purchased the property from her erstwhile owner, and the property conveyed under the sale deed measures 80' X 58' or 4,640 sq.ft. The plaintiff has been in possession and enjoyment of the property that she had purchased. She had left a vacant space measuring a width of 2 feet all around the building in her property, to enable her to carry out any repair works in the property. The plaintiff has been using this vacant space and it is part of the property that she had purchased. While so, the defendant stealthily blocked the 2 feet wide vacant space that lie to the east of her eastern wall of her residence, and had put up a shed blocking the passage, and she made further attempts to interfere with the same on 20.12.2014 which was thwarted by the plaintiff. In these circumstances, the plaintiff had come forward with the suit for mandatory injunction seeking a direction to the defendant to remove the obstruction made by her in the southern portion of the suit property and for other ancillary relief of injunction.
3. The defendant in her written statement would allege that her husband Devarajan had purchased the property on 18.02.1972 and that the suit property actually fall within her property, and is not part of plaintiff's property. It is further alleged that the plaintiff has put up a construction in her property up to her eastern boundary wall, and there is no property matching the description of the suit property that lie beyond her eastern wall. In fact, the construction in the plaintiff's property was put up by plaintiff's father Gopalsamy Naidu and when this defendant objected to the said construction that he had not left any vacant space beyond its eastern wall, he agreed that the defendant's husband Devarajan could construct his bathroom etc, touching his eastern wall. Both Gopalsamy Naidu and Devarajan entered into a written agreement in this regard. Accordingly, Gopalsamy Naidu was allowed to put up a construction touching the eastern wall of the plaintiff's residential building. On the demise of Devarajan, the property devolved on his widow, the defendant herein and their three sons, who are necessary parties to the proceedings.
4. The suit went for trial, and before the trial court the plaintiff's husband has examined himself as PW1. For the defendant, she examined herself as DW1 and examined one independent witness as DW2. The plaintiff has produced as many as 15 documents of which the primary document is her title deed, dated 12.02.1979, marked as Ext.A1. For the defendant, she relied primarily on Ext.B-1 dated 18.02.1972 under which her husband Devarajan has purchased the property and Ext.B-2 dated 30.04.1978 which may be characterised as an agreement/Memorandum of Understa
