Point of Law: Trial Court as well as Lower Appellate Court has considered which is a Partition Deed entered into between respondents/plaintiffs and first Appellant and has rightly come to conclusion that said Partition Deed does not prescribe a time limit within which respondents will have to put up the compound wall in common passage between the respondents/plaintiff’s property and Appellant’s property.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 CPC, against the judgment and decree made in A.S.No.10/2000 and A.S.No.104/2000 on the file of the court of Addl.Subordinate Judge, Mayiladuthurai dated 21.11.2002 in confirming the judgment and decree made in O.S.8033 of 1995 on the file of the court of Principal District Munsif, Mayiladuthurai dated 22.9.99.)

1. The Appellants have filed this Second Appeal challenging the concurrent findings of the Courts below. The Appellants are the defendants in the suit O.S.No.803 of 1995 on the file of the Principal District Munsif, Mayiladuthurai.

2. The suit was filed by the respondents seeking for a permanent injunction restraining the Appellants from interfering with the respondents right to construct a compound wall as per the Partition Deed dated 12.09.1963 which was marked as Ex.A1 before the Trial Court under the Partition Deed. The first Appellant and the respondents who are the brothers agreed that the respondents/plaintiffs are entitled to construct the compound wall in the four feet common pathway.

3. The contentions of the Appellants before the Courts below is that since the respondents/plaintiffs did not exercise the right of putting up a compound wall as per the Partition Deed dated 12.09.1963 and exercised their right only in the year 1994 they cannot seek relief of injunction as prayed for in this suit.

4. The Courts below negatived the contentions of the Appellants/defendants by holding that in order to claim adverse possession, they ought to have established their right through oral and documentary evidence which they failed to do so before the Trial Court. Further, the Trial Court as well as the Lower Appellate Court has held that the Partition Deed Ex.A1 does not prescribe a time limit within which the respondents/plaintiffs will have to exercise their right for constructing the compound wall.

5. Aggrieved by the concurrent findings of the Courts below, this Second Appeal has been filed by the defendants in this suit.

6. The Second Appeal was admitted by this Court on 29.04.2003 on the following substantial questions of law:

(a). When the 2 houses are continuous, one, whether mere suit for permanent injunction is maintainable when the relief of mandatory injunction for creation of common pathway by demolishing a portion of defendants house?

(b). When the partition was effected in 1963 after friction arose between the plaintiff and the 1st defendant, whether the plaintiff abandoned his right to put up compound wall to earmark a common pathway by demolishing a portion of the defendants property by keeping quiet for more than 30 years?

7. The Trial Court as well as the Lower Appellate Court has considered Ex.A1 which is a Partition Deed entered into between the respondents/plaintiffs and the first Appellant and has rightly come to the conclusion that the said Partition Deed does not prescribe a time limit within which the respondents will have to put up the compound wall in the common passage between the respondents/plaintiff’s property and the Appellant’s property.

8. This Court has also perused and examined Ex.A1.

9. As rightly held by the Courts below there is no time limit prescribed under the said Partition Deed for the respondents/plaintiffs to put up the compound wall. Even though, the respondents/plaintiffs exercised their right to put up the compound wall only in the year 1994, the Appellants/defendants cannot contend that they cannot exercise the said right since the Partition Deed Ex.A1 does not prescribe any time limit. Therefore, the first contention of the Appellants/defendants that the respondents/plaintiffs having not exercised their right available to them under the Partition Deed (Ex.A1), they cannot exercise the said right in the year 1994 cannot be accepted by this Court and the same is rejected.

10. The Trial Court has also held that the Appellants/defendants have not disputed Ex.A1 and they have also not established through oral and documentary evidence