A. Jothilakshmi and R. Arumugapandiarajan vs R. Nagarajan and N. Bhagyalakshmi

P.R. Shivakumar, J.—Heard the submissions made by Mr. T.R. Jeyapalam, learned Counsel for the appellants and perused the material

papers available on record in the form of typed-set of papers and also the judgements of the courts below.

The defendants in the original suit are the appellants in this Second Appeal. The suit was filed by the respondents herein/plaintiffs on the file of

the Principal District Munsif, Madurai Town for mandatory injunction for the removal of the superstructure put up by the respondents in the suit

property which is admittedly a common passage, and for a perpetual injunction not to put up any such super structure connecting the first and

second floors of the buildings of the appellants/defendants situated on either side of the common passage.

The suit was resisted by the appellants/defendants contending that no inconvenience was caused by the bridge like structure put up by the

appellants/defendants across the suit properties (common passage) connecting the buildings of the appellants that stand on either side of the suit

property. The appellants herein had also contended that they had not put up any construction in addition to the bridge like structure which was

constructed after removing the old structure in that place connecting the first floor portions of the buildings that stand on the south and north of the

suit common passage.

The trial court as well as the lower appellate court gave a concurrent finding that the appellants/defendants had not proved that there existed an

old struecture connecting the first floor portions of the appellants buildings. The courts below have also rejected the contention of the

appellants/defendants that the bridge like structure put up cross the common passage connecting the two buildings of the appellants/defendants

would not cause any hindrance to the enjoyment of the respondents''/plaintiffs'' property and hence the respondents/plaintiffs should be non-suited

for the relief of mandatory injunction sought for in the plaint. It was the further contention of the appellants/defendants that the structure put up

across the common passage did not cause any hindrance to the free flow of air and light to the property of the respondents/plaintiffs and hence they

should have been non-suited for the relief of mandatory injunction.

It is the contention of the learned Counsel for the appellants/defendants before this Court that the appellants can at best be prevented from

putting up any structure up to the first floor level along or across the common passage which may provide a hindrance to the

respondents''/plaintiffs'' free ingress and egress to their property and the appellants/defendants being the owners of the buildings standing on either

side of the suit common passage shall have every right to connect the floors of those buildings by putting up structures across the common passage

and that such right cannot be questioned by the respondents/plaintiffs. This Court is not in a position to accept the above said contention. The said

contention seems to have been raised on the assumption that the rights of the respondents/plaintiffs could be equivated to an easementary right to

have free flow of air and light through the property of another. The easementary right has to be distinguished from proprietory right over a common

property belonging to the appellants and respondents.

Admittedly, the suit property is a common passage of which the appellants and respondents are co-owners. As such the appellants/defendants

cannot claim any right to exclusively use the vertical space over the common passage leaving only the air space that is available up to the first floor

level. Acceptance of such a contention will amount to a recognition that the suit property absolutely belongs to the appellants subject a right of

easement which is not the case of either party in this case. As it is not in dispute that the bridge like structure put up across the common passage

connecting the first floors of the northern and southern buildings belonging to the appellants/defendants, this Court finds no infirmity or defect in the

judgements of the courts below holding the respondents/plaintiffs entitled to a decree of mandatory injunction for the removal of the said structure

and for a decree of perpetual injunction not to put up any such structures over the common passage.

The courts below, after meticulously analysing the evidence adduced on either side, have given a concurrent finding of fact that there was no old

structure corresponding to the new structure in dispute and hence the appellants/defendants were bound to remove the said structure. Based on the

said finding, the courts below have held that the appellants should be restrained by a decree of injunction not to put up any such structures in future

such finding of fact rendered by the courts below cannot be interferred with in the Second Appeal unless the same assume the character of a

substantial question of law. The questions of fact can assume the character of a substantial question of law if such findings are perverse. In this

case, it cannot be stated that the findings of fact rendered by the courts below are not based on any legal evidence or that no reasonable man

would have arrived at such a conclusion in the light of the evidence adduced on either side. Therefore it is quite obvious that the findings rendered

by the courts below cannot be termed perverse.

Except the challenge made to such findings based on which decree for mandatory injunction and perpetual injunction was granted, no other

ground has been urged on behalf of the appellants/plaintiffs. Moreover, the questions framed and incorporated in the grounds of appeal as

substantial questions of law are not in fact substantial questions of law. The appellants/defendants have not satisfied this Court that this second

Appeal involves any substantial question of law to be answered by this Court. No interference can be made on the questions of fact as provided

u/s 100 of the CPC by this Court in this Second Appeal. Therefore this Court came to the conclusion that this Second Appeal does not merit even

for admission and the same deserves to be dismissed.

In the result, the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. However there shall be no

order as to costs, as the Second Appeal is dismissed, at the admission stage itself.