Easementary rights recognized and the necessity of accurate property boundaries upheld; the removal of structures ordered without a counterclaim is not sustainable.

JUDGMENT

The Second Appeal has been filed as against the decree and judgment passed by the I Appellate Court in A.S. No.411/2011 on the file of the I Additional Judge, City Civil Court, Chennai dated 22.01.2014, wherein the respondent herein, has filed an appeal as against the decree and judgment passed by the Trial Court in O.S. No.6248 of 2005 dated 10.08.2011. The I Appellate Court partly allowed the appeal and dismissed the Suit in respect of declaration and declared the right of entitlement to the easementary and directed to remove the five sunshades in the Suit lane within 2 months from the date of the judgment. Aggrieved by the same, the second appeal has been preferred.

2. The brief averments of the Plaint are as follows:-

The Plaintiff purchased a property from one Najeema Beevi through her Power of Attorney agent K.S. Sheik Abdul Cader to an extent of 945 sq. ft. The property measuring about 45' x 4' i.e., 180 sq. ft. was used as a common passage left for reaching the backside portion. The Plaintiff purchased the Northern side passage marked as DEFA in the sketch filed along with the Plaint from the legal heirs of Mr. V. Ranagasamy through a Sale Deed dated 17.06.2005. Therefore, the Plaintiff is enjoying the property to the extent of 1125 sq. ft.. Thereafter, the defendant had purchased the back portion described in Item-II of the Settlement Deed dated 20.03.1963 with separate passage through a Sale deed dated 15.10.1969 from one Murugaiyah @ Murugesan and Ethiraj amma. In fact, the said passage is situated at Survey No.3184/4 bounded on the North by House site of V. Rangasamy, South by R.S. No.3184/3 belonging to Pottayya, East by R.S. No.3183/2 and West by the property belonging to Kuppammal. But the defendants are under the mistaken identity as if the above said passage is situated on the Northern side of the Plaintiff's property leading from Baracah Road to his property. The 2nd item of the property described in the Sale Deed executed by Murugaiah and Ethiraj amma in the name of the defendant is far away from the 2nd item of the Plaint schedule property. Therefore, the defendant has no right or title or interest over the passage described in the Item-II of the schedule. But the defendant has now come forward to claim absolute right over the passage belonging to the Plaintiff and attempting to erect compound wall preventing the Plaintiff to have ingress and egress through the said passage.

2.1. Further the defendant had issued a Legal Notice dated 14.06.2005 directing the Plaintiff to remove the five existing windows erected by Mr. V. Rangasamy in the year year 1968 claiming absolute ownership over the said passage. Already the Plaintiff gave a complaint before the Ayanavaram Police Station, but no action was taken. The Plaintiff has been getting light and air only through five windows marked as 'W' in the sketch and situated on his Northern wall existing from 1968. Therefore, the defendant has no right to put any compound wall blocking the passage, light and air or to remove the said windows as the Plaintiff has prescribed easementary right. Therefore, the Plaintiff filed a Suit for declaration and for permanent injunction.

3. The brief averments of the Written statement filed by the defendants are as follows:-

The averments made in the Plaint are denied as false. In fact, the defendants along with their father Mr. John Daniel purchased the property bearing Old Door No.147