Back
2021 Supreme(Mad) 2602
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
K. Nataraj - Appellant
Versus
Rachachari & Another - Respondent
S.A. No. 352 of 2010 & M.P. No. 1 of 2010
Decided On : 15-12-2021
For the Appellant :R. Krishna Prasad for M/s. Sarvabhauman Associates, Advocates.
For the Respondents:J. Hariharan, V. Nicholas, Advocates.
Headnote:
Code of Civil Procedure,1908 - Section 100 - Second Appeal - Seeking relief of declaration, declaring that plaintiff is owner of suit property and for consequential permanent injunction - Defendants states that in said unregistered sale agreement, plaintiff himself has signed as a witness and after signing as a witness, now he is estopped from denying contents of those documents - Whether trial Courts are correct in dismissing suit while they rendered observations that suit property is a common wall - Whether attestation of appellant would indicate that he knew contents of document – Held, since suit is filed for relief of declaration, declaring title, it is for plaintiff to prove his case - On going through physical features of property now under dispute, in report filed by Advocate Commissioner, he has stated about mud wall as same was now in dilapidated condition - In his cross examination, plaintiff has further admitted that vendor of defendants has possessed a house and same was constructed in mud wall - Plaintiff admitted as vendor of defendants alone constructed their house on top of mud wall and used same - Said circumstances coupled with fact that plaintiff is one of witness, Sale Agreement, it would suffice to accept case of defendants - Lower appellate Court has also concurred with same view and dismissed suit filed by plaintiff - Findings arrived at by trial Court do not raise any substantial question of law - The findings arrived at by the Courts below is entirely upon the factual issues - Second Appeal dismissed.
JUDGMENT :
(Prayer:- This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 08.04.2009 made in A.S.No.111 of 2004 on the file of the learned Principal Subordinate Judge, Krishnagiri, confirming the judgment and decree dated 20.07.2004 made in O.S.No.136 of 2003 on the file of the learned District Munsif, Krishnagiri.)
1. Challenging the concurrent findings made in A.S.No.111 of 2004 on the file of the learned Principal Subordinate Judge, Krishnagiri and O.S.No.136 of 2003, on the file of the learned District Munsif, Krishnagiri, the appellant, who is the plaintiff in the above referred suit is before this Court with the present Second Appeal.
2. The appellant K.Nataraj filed a suit as against the respondents/defendants in O.S.No.136 of 2003 on the file of the learned District Munsif, Krishnagiri, seeking the relief of declaration, declaring that the plaintiff is the owner of the suit property and for consequential permanent injunction.
3. By judgment and decree dated 20.07.2004, the learned District Munsif, Krishnagiri, after elaborate enquiry, dismissed the suit. Aggrieved over the same, the plaintiff preferred an appeal before the learned Principal Subordinate Judge, Krishnagiri, in A.S.No.111 of 2004 wherein on 08.04.2009, the learned Principal Subordinate Judge, Krishnagiri, after confirming the findings arrived at by the trial Court, dismissed the appeal. Being dissatisfied with the findings arrived at by the Courts below, the appellant / plaintiff is before this Court with the present Second Appeal.
4. For the sake of convenience hereinafter the parties are referred to as per their litigative status before the trial Court.
5. The laconic averments made in the plaint, are as follows:
(i) The plaintiff had purchased a house property through two separate registered sale deeds dated 02.11.1987. After made purchase, he is in the possession and enjoyment of the same. There is a mud wall in the Eastern end of the property, which is shown as 'ABCD' in the plan, appended along with the plaint.
(ii) The defendants are the owners of the property situated on the Eastern side of the plaintiff's property. The 2nd defendant is the wife of the 1st defendant. The defendants are now renovating their property by demolishing their old house. While doing so, the defendants on 25.06.2003, attempted to demolish and damage the suit wall. The defendants have no right to do so. However, the plaintiff managed the same. The defendants have denied the plaintiff's title to the suit property and went away stating that they will come again to demolish the wall. The plaintiff is making use of the space in between the suit wall and his house as a passage and a door is fixed at the entrance from the street. If the suit wall is demolished, the entire house of the plaintiff and other annexures such as bathroom, toilet room will be exposed to public view further causing unsafe and risk to the residents of plaintiff's house. The defendants have no right to demolish the suit wall. Hence, the suit for declaration and injunction.
6. The case of the defendants, as averred in the written statement, is as follows:
(i) After purchasing the vacant site, the plaintiff constructed his house without any compound wall. The defendants neither claim any right over the house of the plaintiff or any other part belonged to him. It is true that the mud wall is situated on the Eastern side of house of plaintiff. The defendants have also purchased two house buildings and a vacant site adjacent to the house of the plaintiff. Among the three items, the defendants demolished the two house buildings due to its old age and the defendants constructed a house on the northern side. The remaining portion is kept vacant for the purpose of constructing residential house.
(ii) The defendants purchased two house buildings from one Mangayarkarasai and T.Dhanalakshmi, as per the Sale Deed dated 30.01.1991 and 09.12.1991 respectively
