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Judgment
P.R. Shivakumar, J.—The plaintiff in the original suit is the appellant in the second appeal. O.S. No. 59 of 1988 filed by the appellant herein
on the file of the learned Additional District Munsif, Tuticorin was decreed by a judgment and decree of the said trial Court dated 13.12.1991. On
appeal, the said judgment and decree was set aside and reversed by the learned lower appellate Judge, namely the learned Additional District
Judge, Tuticorin, by its judgment in A.S.No. 33 of 1996 on the file of the said Court dated 28.08.1996. Hence, the appellant/plaintiff has brought
forth this second appeal.
The original suit in O.S. No. 59 of 1988 had been filed on the file of the learned Additional District Munsif, Tuticorin, by the appellant herein
against the respondents herein for permanent injunction in respect of the suit third schedule property, for a mandatory injunction directing removal
of the rafters put up on the third schedule property, for a mandatory injunction directing removal of the superstructures put up by the respondents
over the suit second schedule property and for a permanent injunction in respect of the suit second schedule property.
The averments found in the plaint, in brief, are as follows:
(i) The appellant/plaintiff purchased the property described as plaint first schedule property marked as ''ABCD'' in Ex. A.4 plaint plan under two
sale deeds dated 28.11.1979 and 13.12.1979, certified copies of which have been marked as Exs. A.1 and A.2 respectively. The first
respondent/first defendant is the owner of the adjoining land on the east. After purchase, the appellant/plaintiff constructed the compound wall on
the east of the first schedule property. While so, the appellant/plaintiff entered into an agreement with the first respondent/first defendant, and as
per the agreement, each one should leave a space of 3/4 feet for common use. The appellant/plaintiff put up a compound wall on the eastern
border of his property leaving space having a width of 3/4 feet on the east of the compound wall. The said compound wall is shown as ""A1G1''
and is described as the plaint third schedule property, whereas 3/4 feet space left by the plaintiff on the east of the compound wall marked in the
plaint plan as ''AA1G1G'' is described as the plaint second schedule property. When the appellant/plaintiff wanted to construct a compound wall in
the year 1980, he approached the then Secretary of the first respondent/first defendant and suggested for constructing a common compound wall
occupying equal space on either side of the dividing line, but the latter expressed his idea against construction of a common wall. On the other
hand, he asked the appellant/plaintiff to construct a separate wall for himself leaving a space of 3/4 feet and promised that the first respondent/first
defendant would also leave an equal space on their side. Thus the appellant/plaintiff was constrained to put up the compound wall described as
plaint third schedule property and marked as ''A1G1'' in Ex. A.4 plaint plan, leaving a space of 3/4 feet on the east of the compound wall. The
vacant space left by the appellant on the east of the compound wall marked in the plaint plan as ''AA1G1G'' is the plaint second schedule property.
The plaint first schedule property is larger property of which the second and third schedule properties form part and parcel.
(ii) While so, the second respondent/second defendant who got the eastern property from the first respondent/first defendant on lease for running a
vegetable market, met the appellant/plaintiff on 28.01.1988 and sought his permission to fix rafters on the ''A1G1'' wall (third schedule property),
to put up sheds on the east of the said wall. Despite the fact that the appellant refused to grant such permission, the second respondent, with the
active connivance of the first respondent, proclaimed that they would fix rafters on the above said wall to provide support for the roof of the
structures to be constructed on the east of the said wall by trespassing into the second schedule vacant space. In the said circumstances, the suit
was filed originally for permanent injunction not to cause disturbance to the peaceful possession and enjoyment of the second and third schedule
properties. During the pendency of the suit, the second respondent put up a shed on the east of the plaintiff''s ''A1G1'' wall. Hence, the plaint was
amended for mandatory injunction for the removal of the encroachment made on plaint second schedule property and for the removal of rafter
placed on the plaintiff''s wall.
The second respondent/second defendant did not contest the suit and remained exparte. The first respondent/first defendant alone resisted the
suit by filing written statement. Besides denying the plaint allegations regarding the oral agreement to leave 3/4 feet on either side of the border for
the common use of the appellant/plaintiff and the first respondent/first defendant, it was contended therein that the former did not leave any space
on the east of his compound wall and on the other hand, the wall was constructed encroaching upon the property of the first respondent/first
defendant by 2 feet and hence the suit should be dismissed.
The trial Court framed necessary issues and conducted trial. At the conclusion of trial, after considering the evidence both oral and documentary
adduced on either side, the trial Court held that the plaint third schedule property shown as ''A1G1'' in the plaint plan was constructed within the
property of the appellant; that the appellant/plaintiff had left just 1/2 feet space on the east of the said wall at the northern extremity and that the
said wall was constructed just on the border of the property of the appellant and the first respondent, without leaving any space on the southern
extremity. The trial Court also held that the appellant/plaintiff had only left a triangular space in between the points ''AA1G1''. By necessary
implication, the trial Court has held that the portion comprised in the triangle ''A,G1G'' comes within the boundary of the first respondent/first
defendant. Based on the said findings, the trial Court allowed the suit and granted the reliefs as prayed for but with a qualifying observation that the
suit second schedule property is triangular in shape.
On appeal, the learned Additional District Judge, Tuticorin reversed the said findings, set aside the judgment and decree of the trial Court and
dismissed the suit in its entirety with cost by its judgment dated 28.08.1996. Hence the second appeal.
This Court heard the submissions made by Mr. K. Srinivasan, learned counsel appearing for the appellant and also by Mr. M.A. Abdulwahab,
learned counsel appearing for the respondents. The materials available on record including the judgments of both the Courts have been perused.
According to the title deeds of the appellant/plaintiff, the east-west measurement of his property comprised in Survey No. 2913 on the north is
244 feet and the east-west measurement on the south is 257 1/2 feet. The east-west measurement gradually increases from north to south. The
appellant/plaintiff claims to have constructed the wall described as the third schedule property and marked as ''A1G1'' in Ex. A.4 plaint plan,
leaving a space of 3/4 feet on its east. Thus the appellant/plaintiff claims title also to the property shown as ''AA1GG1'' in the plaint plan measuring
3/4 feet x 162 feet described as the second schedule property. Referring to the measurements found in the Commissioner''s reports and plans
marked as Exs. C.1 to C.4, the learned trial Judge held that the property of the appellant/plaintiff includes the triangular portion ''AA1G1'' and
excludes the triangular portion ''AG1G'' with reference to Ex. A.4 plaint plan. According to the Commissioner''s second plan marked as Ex. C.3,
the distance between points B and C measured 256 feet and if the thickness of the eastern wall is added, the total east-west measurement of the
appellant''s/plaintiff''s property on its southern extremity will come to 257 1/2 feet. Taking note of such measurement the learned trial Judge has
held that the southern end of suit third schedule was constructed just on the border line without leaving any space on the east of it. The learned
lower appellate Judge concurred with the view expressed by the learned trial Judge that the wall shown as the suit third schedule property was
constructed on the border of the properties of the appellant and the first respondent at the point of southern end of suit third schedule wall. The
learned lower appellate Judge has also observed that the first defendant''s property extended upto the point ''D1'' as the north-south measurement
of the first defendant''s property, in between the points ''D1'' and ''I'' happened to be 135 feet. As a necessary corollary the lower appellate Court
has held that the appellant has not left any space of the east of his wall even at its northern tip. In view of the said observation, the learned lower
appellate Judge has come to the conclusion that the appellant/plaintiff has not left any space on the east of the suit wall shown as the third schedule
property and that hence, he was not entitled to any relief in respect of the portion shown as suit second schedule property and marked as
''AA1G1G'' in Ex. A.4 plaint plan.
The learned counsel for the appellant contended that the learned lower appellate Judge, without assigning proper and convincing reasons and
without properly considering the Commissioner''s reports and plans marked as Exs. C.1 to C.4, had come to an erroneous conclusion that there
was no space left on the east of the wall shown as ''A1G1'' in the plaint plan and that the well considered finding of the trial Court that the triangular
portion comprised within the points ''AA1G1'' belongs to the appellant/plaintiff should not have been disturbed. On the other hand, the learned
counsel for the contesting respondent contended that the finding of fact recorded by the lower appellate Court, after reappraising the evidence,
could not be interfered with in the second appeal, unless the said finding could be termed perverse; that the finding of the lower appellate Court
regarding the suit second schedule property was supported by tangible evidence; that the preponderance of evidence supported only the said
finding and that the said finding could not be termed erroneous, much less perverse.
This Court has gone through the relevant evidence in the light of the rival submissions made by the learned counsel appearing on either side.
Upon such a consideration, this Court is of the view that the finding of the lower appellate Court to the effect that the appellant/plaintiff had not
proved to have left any space on the east of the wall described as suit third schedule property and marked as ''A1G1'' in plaint plan cannot be
assailed. As per the Commissioner''s second plan and report marked as Exs. C-3 and C-4, the east-west measurement of the
appellant''s/plaintiff''s land inclusive of the eastern wall marked as ''GG1F1F'' in Ex. C.3 on his southern border comes to 257 1/2 feet. The said
measurement agrees with the title deed of the appellant/plaintiff. The suit second schedule wall has been shown as ''A1G1'' in the plaint plan. The
same is found marked as ''DGG1D1'' in the Commissioner''s plan Ex. C.3. It shall be pertinent to notice that the east-west measurement of the
appellant''s/plaintiff''s property increases gradually from north to south (from 244 feet to 257 1/2 feet). Hence the distance between the
corresponding point on the western border and the point marked as ''G'' in the Commissioner''s plan Ex. C.3 shall definitely be larger than the
length of the northern border and lesser than the southern border. According to the Commissioner''s second report marked as Ex. C.4, the length
of the southern border excluding the eastern wall is 256 feet 10 inches. The same shall be the east-west measurement of the plaintiff''s property
taken from point ''G''. Therefore, it is quite obvious that the appellant/plaintiff has not left any space on the east of point ''G'' marked in Ex. C.3.
It is obvious from Ex. C.4-Commissioner''s report that the plaintiff has instructed the Commissioner not to measure the length of northern
boundary of his property. The distance between the points marked as ''I and D1'' in Ex. C.3 was found to be 135 feet by the Commissioner. The
said measurement tallies with the measurement of the first respondent''s/first defendant''s property. It transpires that the Commissioner was asked
to take the mid point of the wall lying on the eastern border of the first respondent''s/first defendant''s property and thus, the trial Court seems to
have come to a conclusion that there was an excess of 1/2 feet space and hence, the plaintiff should have left 1/2 feet on the east of the suit third
schedule wall on its northern end. Such approach made by the learned trial Judge seems to be erroneous.
The first respondent/first defendant has produced the sale deed dated 12.12.1961 concerning the property comprised in T.S. No. 2915 which
is lying on the east of the property of the first respondent''s/first defendant''s property. Clear evidence has been adduced by the first
respondent/first defendant to the effect that the compound wall lying on the east of the first respondent''s property which is shown as ''HOIQ'' in
Ex. C.3 exclusively belongs to the owner of the land that lies on the east of the first respondent''s property. The same has not been properly
contradicted. Therefore, the finding of the lower appellate Court to the effect that the first respondent had not left a space of 3/4 feet on the east of
the suit third schedule wall is based on sound reasons and hence, the said finding cannot be termed either defective or infirm. The same deserves to
be confirmed. This Court concurs with the finding of the learned lower appellate Judge that the appellant/plaintiff has not substantiated his case that
he is entitled to either the rectangular portion shown in Ex. A.4 plaint plan as ''AA1G1G'' as claimed by him. This Court also accepts the
correctness of the finding of the lower appellate Court that the trial Court erred in holding that the appellant/plaintiff was entitled to a triangular
space (AA1G1 as per Ex. A.4 plaint plan). The lower appellate Court was perfectly right in non-suiting the appellant/plaintiff for any relief claimed
in respect of the suit second schedule property. Hence the judgment and decree of the lower appellate Court, so far as the suit second schedule
property is concerned, have got to be confirmed.
So far as he reliefs claimed in respect of the suit third schedule property, namely the north-south wall of the plaintiff shown as ''A1G1'' in Ex.
A.4 plaint plan is concerned, it is quite clear that the appellant/plaintiff has not encroached upon any portion of the first respondent''s property and
that the said wall was constructed just on the demarcating line dividing the properties of the appellant/plaintiff and the first respondent/first
defendant. It is also not in dispute that the entire wall was constructed exclusively by the appellant/plaintiff. The first respondent/first defendant does
not claim that the said wall is a common wall belonging to both. On the other hand, the first respondent/first defendant has contended that the said
wall was constructed not within the boundaries of the appellant''s/plaintiff''s property but within the boundaries of the first respondent/first
defendant''s property by encroaching upon the same by 2 feet. The thickness of the wall, according to the Commissioner''s report, is 1 feet 4
inches. Therefore, the first respondent''s contentions seems to be that the first respondent is not only entitled to the entire portion on which the suit
third schedule property has been erected, but also to an extent of 8 inches on the west of the said wall. It is quite obvious from the Commissioner''s
report that the east-west measurement of the first respondent''s property on the north is 135 feet, if it is measured from the western edge of the
wall found on the east of the first respondent''s property. If the measurement is taken from the mid point of the said wall, then the measurement
shall be even more than the one noted in Ex. B.2. Under these circumstances, we can safely come to the conclusion that no portion of the first
respondent''s property has been encroached upon and that the entire wall of the appellant/plaintiff, shown as the suit third schedule property, lies
within the boundaries of the appellant''s/plaintiff''s land. Therefore, the first respondent or the second respondent who is the lessee of the property
of the first respondent cannot have any right to place rafters on the said wall of the appellant/plaintiff to rest the roof of the construction made on
the east of the said wall. It is not in dispute that the respondents have fixed rafters on the said wall to support the roof for the structure built on the
eastern side of the plaint third schedule wall. As such, this Court is of the considered view that the appellant/plaintiff shall be entitled to the relief of
injunction not to disturb his peaceful possession and enjoyment of the said wall and a mandatory injunction for the removal of the rafters kept
resting on the said wall to support the roof of the structure constructed on the east of the wall.
The learned lower appellate Judge, under a wrong impression that a suit for bare injunction or mandatory injunction cannot succeed, when the
title in respect of the subject matter of the suit is disputed by the opposite party. It is pertinent to note that u/s 34 of the Specific Relief Act, 1963
the relief of declaration cannot be granted, when further reliefs could have been asked for and the plaintiff fails to seek such further relief. On the
other hand, no such restriction is found anywhere in the Specific Relief Act or any other statutory provision that no injunction could be granted,
when the title of the plaintiff is disputed by the opposite party. It is trite law that a person who is in possession can maintain a suit for bare injunction
based on possession alone and the party who resists such a suit may be at liberty to show that no injunction could be granted as he happens to be
the real owner. There is no bar for the Courts dealing with a suit for bare injunction to go into the question of title incidentally. In this case, it has
been proved that the suit wall is confined within the border of the land belonging to the appellant/plaintiff. Therefore, this Court is of the considered
view that the lower appellate Court has committed an error in non-suiting the plaintiff, so far as the reliefs sought for in respect of the suit third
schedule property and that hence, this Court is definitely entitled to interfere with the same and set right the defect.
In view of the foregoing reasons, it is hereby concluded that the judgment and decree of the lower appellate Court reversing the judgment and
decree of the trial Court, so far as the suit second item is concerned, has got to be confirmed. So far as the suit third schedule property is
concerned, the lower appellate Court''s judgment and decree is bound to be interfered with, modified and reversed with the result that the
appellant/plaintiff shall be entitled to the reliefs of permanent injunction and mandatory injunction in respect of the suit third schedule property alone.
However this Court thinks fit to add the following clarification:
As it is found that the appellant/plaintiff has constructed the suit third schedule compound wall without leaving any space on its east, the
appellant/plaintiff cannot claim any right to use any portion lying on the east of the said wall either for repairing or whitewashing the said wall.
Similarly, the first respondent shall be at liberty to put up a wall touching the suit third schedule wall without leaving any space and provide support
for the roof of the structures of the respondents.
In the result, this Second Appeal is partly allowed and the judgment and decree of the lower appellate Court reversing the judgment and
decree of the trial Court, so far as the suit second item is concerned, is confirmed. So far as the suit third schedule property is concerned, the
lower appellate Court''s judgment and decree is modified and reversed with the result that the appellant/plaintiff shall be entitled to the reliefs of
permanent injunction and mandatory injunction in respect of the suit third schedule property alone. It is further clarified that the appellant/plaintiff
cannot claim any right to use any portion lying on the east of the said wall either for repairing or whitewashing the said wall. Similarly, the first
respondent shall be at liberty to put up a wall touching the suit third schedule wall without leaving any space and provide support for the roof of the
structures of the respondents. No costs. Consequently, the connected miscellaneous petition is closed.