IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.04.2022

CORAM

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

S.A.NO.431 OF 2017

&

C.M.P.NO.10803 OF 2017

M.V.Swaminathan

... Appellant/Defendant

Versus

A.Swaminathan

... Respondent/Plaintiff

PRAYER:-

Second Appeal filed under Section 100 of CPC against the

judgment and decree made in A.S.No.11 of 2016 dated 17.11.2016

on the file of the learned III Additional District Judge,

Vellore at Thirupathur, confirming the judgment and decree made

in O.S.No.47 of 2011 dated 11.11.2013 on the file of the learned

Subordinate Judge, Vaniyambadi.

For Appellant

:

Mr.V.Selvaraj

For Respondent :

Mr.R.Subramanian

JUDGMENT

(1)

The defendant in the suit in O.S.No.47/2011 on the file of

the Sub Court, Vaniyambadi, Vellore District is the

appellant in the above Second Appeal.

(2)

The respondent herein, as plaintiff, filed the suit in

O.S.No.47/2011 for a declaration, declaring the title of

the plaintiff in respect of a compound wall described as

ABC in the Rough Plan attached to the plaint and

for consequential permanent injunction restraining the

defendant from interfering with the peaceful possession

and enjoyment of the suit property by the plaintiff.

(3)

The plaint pleadings are as follows. The suit property and

other properties belonged to the plaintiff's ancestors and

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the same was allotted to the plaintiff's father in a

partition that took place in the year 1968. In the family

of the plaintiff, there was a subsequent partition by a

registered Partition Deed dated 07.03.1973 under which the

suit property which was referred to in the document as

'' A '' Schedule, was allotted to the plaintiff's father.

The plaintiff's father constructed a house after

getting permission from the Municipality/Local Body. The

plaintiff's father by name Chittambala Chettiyar died on

07.03.1979 leaving behind the plaintiff and his mother as

his legal heirs. The plaintiff's mother also died on

04.08.2010 and the suit property became the absolute

property of the plaintiff.

(4)

The defendant owns the house on the Western side of the

suit property and vacant land on the Southern side of the

suit property. The property of the defendant is in

S.No.91, whereas the property of the plaintiff is

comprised in S.Nos.89 and 90. The length of the AB portion

of the compound wall is measuring 13 feet and the length

of the BC portion of the compound wall is 27 feet. The

width of the compound wall is 1 ½ feet and its height is

20 feet.

(5)

The defendant started putting up his construction

adjoining the BC portion of the wall and at that time,

requested the plaintiff to give him the entire compound

wall. Since the plaintiff refused to consider the request

of the defendant, the defendant tried to damage the ABC

wall and therefore, a police complaint was lodged. The

suit property was allotted to the plaintiff's father on

07.03.1973 and he was in enjoyment of the same for more

than 40 years. Since the defendant tried to damage the ABC

compound wall, the plaintiff was constrained to file the

suit.

(6)

The suit was contested by the defendant by filing a

written statement, totally denying all the averments made

in the plaint. However, it is admitted that the defendant

started putting up a new house adjacent to the BC wall.

The contention of the plaintiff that the entire ABC wall

belongs to him, is specifically denied by the defendant in

the written statement. It is admitted by the defendant

that AB portion of the wall belongs to the plaintiff.

However, the defendant contended that the BC portion of

the compound wall was constructed by the predecessors in

title of the defendant about 100 years back and therefore,

the BC wall is the exclusive wall of the defendant.

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(7)

Before the Trial Court, an Advocate Co