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2019 Supreme(Mad) 2101
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
R. THARANI, J.
Kalaiselvan – Appellant
Versus
Gunaseeli – Respondent
C.R.P. (NPD) (MD) No. 897 of 2015
Decided On : 16-04-2019
Advocate Appeared:
For the Appellant : C. Dhanaseelan
For the Respondents: S. Palanivelayutham
Headnote:
Permanent injunction and the respondent - appointed in the case and both the parties - Trial Court - On the side of the petitioner, it is stated that already the Commissioner has inspected the suit property and has filed a detailed report and plan. In the report, it is stated that the interior portion of GH segment of the wall has enlargement and it has separate kondikal which is a supporting stone to bear the roof of the respondents house. It is stated that the property of the petitioner as well the respondent belonged to two brothers. The respondent herein claimed 3 ¼ cents along the titled roof house bearing old Survey No. 7/51 and new Survey No. 7/56 in Perungudi Village, Natham S. No. 862 and the land of the petitioner is in Survey No. 845/5 and the land of the respondent is in Survey No. 845/6. The respondent is on the eastern side and the petitioner is in the western side. The petitioners Grand father and the respondents predecessors in title were brothers. There is a common wall in between the houses and when the petitioner demolished his house, the respondent has filed a suit. A Court Commissioner was appointed in the case and both the parties raised objections to the Commissioner report. When the arguments are heard and the case is reserved for Judgment, it was reopened for clarifying the GH portion mentioned in the Commissioner report – Held, There is a wall which belonged to three persons one is the petitioner, other is the respondent and one portion belong to third person. The respondent has admitted that the wall was there when he purchased the house in 1985. The Commissioners report has clearly stated that one portion of the wall is painted yellow and the other is painted in white colour. The respondent has a EB box in the GH wall. The respondent has admitted that the wall belonged to her is a mud wall. She has admitted that there are two separate common walls. She has admitted that there is a wall and the respondents house is in one side and the petitioners house is in the other side. P.W.1 has admitted that she has claimed 1 ft. in the petitioners property that portion will go inside the old house of the petitioner but no suit is filed for possession. The petitioner has admitted that there is common lane in the eastern side of the property but the lane was not stated in the document - A perusal of the records reveals that the suit is only for bare injunction. After reserving the case for Judgment, the trial Court has re-opened the case. The respondent has filed an I.A. Petition for re-issue of the Commissioners warrant. The Commissioner warrant is re-issued. The purpose for the re-issue of the Commission warrant is that the respondent has stated that the old Commissioner report is incorrect and insufficient to decide the case on merits but the respondent has not filed any objection to the earlier Commissioner report. It is stated that the Commissioner failed to measure the entire extent of the property that belong to both the petitioner and the respondent. Verification of the Commissioner report reveals that the Commissioner has already measured the two portions. The contention of the petitioner is that he was not aware there are two walls until the Commissioner visited the property, as the petitioner was not allowed to see the property of the respondent until the visit of the Commissioner, the respondent herein has denied that there is another wall adjoining to the western wall - Petition is allowed
ORDER :
R. Tharani, J.
1. Heard Mr. C. Dhanaseelan, learned counsel appearing for the petitioner and Mr. S. Palanivelayutham, learned counsel appearing for the respondent.
2. This petition has been filed to set aside the order dated 19.01.2015 passed in I.A. No. 1409 of 2014 in O.S. No. 410 of 2012 on the file of the District Munsif Court, Valliyoor and dismiss I.A. No. 1409 of 2014 with cost.
3. The respondent has filed a suit against the petitioner in O.S. No. 410 of 2012 for permanent injunction and the respondent has also filed I.A. No. 1409 of 2014 to appoint a Commissioner with the help of a Surveyor by re-issuing the Commissioner's warrant to inspect the suit property and the Court has allowed the petition and the Commissioner warrant is re-issued to Advocate Mr. T. Sudhagar for the inspection of the suit property. Against the order, the petitioner has filed this petition.
4. As there was no representation on the side of the petitioner who is the respondent in the I.A. No. 1409 of 2014, the I.A. was ordered against this revision petitioner. Against the order, the petitioner has filed this revision petition.
5. On the side of the petitioner, it is stated that already the Commissioner has inspected the suit property and has filed a detailed report and plan. In the report, it is stated that the interior portion of GH segment of the wall has enlargement and it has separate kondikal which is a supporting stone to bear the roof of the respondent's house. It is stated that the property of the petitioner as well the respondent belonged to two brothers. The respondent herein claimed 3 ¼ cents along the titled roof house bearing old Survey No. 7/51 and new Survey No. 7/56 in Perungudi Village, Natham S. No. 862 and the land of the petitioner is in Survey No. 845/5 and the land of the respondent is in Survey No. 845/6. The respondent is on the eastern side and the petitioner is in the western side. The petitioner's Grand father and the respondent's predecessors in title were brothers. There is a common wall in between the houses and when the petitioner demolished his house, the respondent has filed a suit. A Court Commissioner was appointed in the case and both the parties raised objections to the Commissioner report. When the arguments are heard and the case is reserved for Judgment, it was reopened for clarifying the GH portion mentioned in the Commissioner report.
6. On the side of the petitioner, it is stated that the western wall and the eastern wall of both the parties have separate kondikal and the portion of the petitioner's house is constructed with brick and limestone and the house of the respondent is build with mud and granite stones. There is no dispute regarding the wall. Whether the western wall is in joint possession or separate possession is not a issue in the case. The respondent herein is claiming 1 ft. beyond the common wall of the petitioner. The suit is only for bare injunction. It is the duty of the respondent to prove possession. The Commissioner's report has clearly stated that there is no such suit property as described in the title deed. One feet beyond the common wall of the petitioner is impossible. Taking advantage of the demolition of the existing house, the respondent is trying to encroach upon the petitioner's property.
7. On the side of petitioner, it is stated that the trial Court has ordered for re-issuing of the Commissioner warrant only on two grounds that is to verify the width of the wall in GH portion and secondly to measure the extent of the house of both the petitioner and the respondent. These measurements are already there in the report of the Commissioner. It is further stated that aerial view of the GH wall is to be verified to decide whether there are two adjoining walls or a single wall is used for both the houses, The lower Court has come to a wrong conclusion that the Commissioner report is not clear as to whether there are two adjoining walls or a single wall from the aerial view. The wi
