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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
A.K.C. Murugan - Appellant
Versus
Arumugam@Ravi & Another - Respondent
S.A.(MD). No. 52 of 2005
Decided On : 06-01-2022
Civil Procedure Code, 1908 - Section 100 - First Appellate Court granted permission to defendant to enter into schedule property in order to maintain western wall of defendant - As against judgment and decree, present second appeal has been filed by defendant - Whether findings of Courts below are vitiated by its failure to consider specific boundary recitals and admission of witnesses, especially when Courts below has specifically found that extent claimed under cannot be accepted - Whether Courts is right in deciding extent of property as claimed by respondents after having found that extent referred is not correct – Held, when plaintiffs are entitled to just 31 ½ feet east-west, now plaintiffs are making a larger claim of 33 feet - This submission has been rejected by First Appellate Court - Exhibits indicate that eastern boundary of plaintiffs is that of house property of defendant - Plaintiffs are entitled to east-west measurement up to western wall of defendant - Contentions of appellant that an excess 1 ½ feet has been claimed by defendant is not legally sustainable - First Appellate Court has also considered physical feature namely opening of window on western wall of defendant, drainage of rain water into 2nd schedule property by defendant and right to maintain western wall of defendant - Based upon said finding, First Appellate Court has rightly granted a right in favour of defendant to enter into suit 2nd schedule lane in order to maintain their western wall or to drain rain water into 2nd schedule property - First Appellate Court has rightly granted said permission to defendant - Second appeal dismissed.
JUDGMENT :
Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree passed in A.S.No.5 of 2004 dated 13.08.2004 on the file of Sub Court, Kovilpatti confirming the judgment and decree passed in O.S.No.143 of 2002 on the file of the District Munsif Court, Kovilpatti, dated 01.12.2003.
1. The defendant is the appellant herein.
2. The plaintiffs filed O.S.No.143 of 2002 before the District Munsif Court, Kovilpatti for the relief of declaration that the 2nd schedule property absolutely belongs to them and for consequential permanent injunction restraining the defendant from creating any doorway in the suit lane. The suit was decreed as prayed for by the trial Court. The defendant filed A.S.No.5 of 2004 before the Subordinate Court, Kovilpatti. The First Appellate Court though confirmed the judgment and decree of the trial Court, granted permission to the defendant to enter into the 2nd schedule property in order to maintain the western wall of the defendant. As against the said judgment and decree, the present second appeal has been filed by the defendant.
3. The plaintiffs had contended that the suit schedule properties are originally owned by the plaintiffs' grandfather namely one Velu Chettiar and there was a registered partition in their family on 28.05.1964. The 3rd schedule property in the said partition deed was allotted to Velu Chettiar which is the present suit schedule property. According to the plaintiffs, east-west measurement is 16 ½ feet which includes the suit lane on the east. The plaintiffs further contended that 2nd schedule property absolutely belongs to the plaintiffs and the plaintiffs are having a doorway on the eastern wall so as to enter into the 2nd schedule lane. The 2nd schedule lane is being used as a bathroom and the plaintiffs have also constructed a water tank. The plaintiffs further contended that the defendant who owned property on the east of the suit lane has attempted to open a doorway on his western wall so as to enter into the suit lane. Hence, the present suit.
4. The defendant filed a written statement admitting the partition deed dated 28.05.1964 but contended that the east-west measurement of 16 ½ feet does not include the suit lane. The defendant further contended that his father purchased the suit schedule property on 30.07.1960 from one A.S.K.Vallinayagam Chettiar. As per the said sale deed, east-west measurement of the property is 19 ½ feet. After the death of his father Chelliah Thevar, it devolved upon the defendant based upon a Will. The defendant further contended that the suit lane is belongs to him. Based on the said averments, the defendant sought for dismissal of the suit.
5. The trial Court after considering Exhibits A1, B1 and B2 and also the evidence of DW1, arrived at a finding that east-west measurement of the defendant namely 19 ¼ feet does not include the 2nd schedule suit lane. The trial Court also arrived at a finding that the written statement of the defendant will disclose that the exclusive right is not claimed by the defendant over the suit 2nd schedule lane. The trial Court also arrived at a finding that there is a doorway on the eastern wall of the plaintiffs facing the suit schedule lane, but on the other hand, there is no doorway on the western wall of the defendant so as to enter into the suit lane. This physical feature, noted down by the Advocate Commissioner will clearly establish the fact that the defendant has no manner of right over the 2nd schedule property. The trial Court further found that the suit lane has been closed on either side namely on the northern and southern side. Hence, there is no possibility for the defendant to enter into the suit lane except by entering into the house of the plaintiffs. The trial Court also found that the Kitchen of the plaintiffs is protruding into the suit lane and a water tank has been constructed in the suit lane. However, the defendant has not come forward to make a counter claim for r
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