IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.04.2025 CORAM:

THE HONOURABLE MRS. JUSTICE R.KALAIMATHI and M.P.No.1 of 2012 ... Appellant/ Defendant A.Ponnusamy Vs.

A.Kulandaivelu ... Respondent/Plaintiff PRAYER: This Second Appeal is filed under Section 100 of C.P.C.against the Judgment and Decree dated 25.08.2012 in A.S.No.21 of 2011 passed by the Subordinate Court, Rasipuram by confirming the Judgment and Decree dated 27.04.2011 in O.S.No.60 of 2009 on the file of the District Munsifr Court, Rasipuram.

For Appellant : Mr.P.Valliyappan Senior Counsel for M/s.SMS.Sriram Narayanan For Respondent : Mr.C.Jagdish

JUDGMENT

This Second Appeal has been preferred by the defendant against the Judgment and Decree dated 25.08.2012 passed by the Sub Court, Rasipuram in A.S.No.21 of 2011 against his elder brother A.Kulandaivelu.

2. The parties are indicated herein as per their litigative status and ranking before the Trial Court.

3. According to the plaintiff, suit property is belonging to the plaintiff as per Partition Deed dated 02.05.1983. The plaintiff has been in possession and enjoyment of the suit property without any interference. The suit property is a tiled house with mud wall and roof are put up by country wood and country tiles measuring about 30 sq.mt, situated in S.Nos.16/1B1/ Door No.14/129A, Service Connection No.298. The defendant is his own brother. The plaintiff has been residing in the suit property ( house) . He has also been paying house tax for the suit property.

3.1. When he was attending to the maintenance work of southern and eastern side wall of the suit property on 27.05.2009, at about 8.30 a.m, the plaintiff and his men were prevented from attending to the maintenance work and the construction materials were damaged. Hence, the suit is filed for the relief of permanent injunction not interfere with.

4. After the partition is effected, survey number of the plaintiff's property is S.No.16/1B1 and defendant's property is S.No.16/1B2 Common Wall is situated in S.No.16/1B1. In the patta granted to the plaintiff, the defendant's name is also mentioned.

5. Contending contra, the defendant has averred that the plaintiff has demolished the old tiled house and they have jointly constructed the house 60 years ago up on the suit property. As constructed his house without leaving any set back and within the 'athu' he has raised the wall in the eastern and southern side to the height of 15 ft ( wall with cement mortar), he constructed his house. For maintenance of southern wall, the plaintiff has to climb upon the roof of plaintiff's tiled house and effected repair or whitewash work of the wall. There is no easmentary right granted to the plaintiff to undertake the aforesaid work. If the plaintiff or his men are permitted to climb upon his tile, roof, there is a possibility of all the tiles put upon the house would break and would damaged get . The roof and the rafters are in damaged condition and it is about to fall down.

6. Based on the divergent pleadings, the trial Court framed the following issues:-

i) Whether the contention of the plaintiff that the defendant prevented the plaintiff from maintaining the suit wall is correct?

ii) Whether the plaintiff is entitled to the relief of permanent injunction?

iii)To what other relief, the plaintiff is entitled to ?

7. During trial, to substantiate the plaint details, on the plaintiff's side, two witnesses were examined and five documents were marked. On the side of the defendant, 1^st defendant was examined as D.W.1 and one Tr.K.Rajendran was examined as DW2 and two documents were marked.

8. Upon consideration of the oral and documentary evidence of both sides and after hearing the arguments advanced by either side, the trial Court decreed the suit in favour of the plaintiff on certain conditions.

9. Aggrieved by the same, the defendant had preferred appeal in A.S.No.21 of 2011 before the Subordinate Court, Rasipuram. Upon consideration of the Trial Court records and after hearing the a