Periaswamy Pandaram vs Thangammal

S. Tamilvanan, J.—The second appeal is preferred against the judgment and decree, dated 22.02.1999 passed in A.S. No. 106 of 1996 on the file of the Subordinate Court, Tenkasi reversing the judgment and decree, dated 05.07.1996 made in O.S. No. 4 of 1994 on the file of the District Munsif Court, Shencottai.

The appellant herein was the defendant in the suit. The respondent, as plaintiff had filed the suit against the appellant herein seeking the relief of declaration of title, permanent injunction and also mandatory injunction. According to the respondent/plaintiff, the suit property is the absolute property of the respondent, in view of the sale deed dated 19.06.1986 executed by one Lakshmiammal and others in respect of the first item of the suit property and the sale deed, dated 05.12.1988 executed by one Chokalinga Devar in respect of the second item of the property.

The trial court, considering the oral and documentary evidence and also the arguments advanced by both sides, dismissed the suit filed in O.S.

No. 4 of 1994 and O.S. No. 120 of 1994 by a common judgement, dated 05.07.1996. Aggrieved by which, appeals in A.S. No. 106 of 1996 and A.S. No. 4 of 1997 were preferred. The first appellate Court allowed the appeal in A.S. No. 106 of 1996 and set aside the judgment and decree in O.S. No. 4 of 1994. However, the appeal in A.S. No. 4 of 1997 was dismissed, confirming the judgment and decree passed in O.S.

No. 120 of 1994. The second appeal has been preferred against the judgment and decree passed in A.S. No. 106 of 1996 on the file of the Court below.

At the time of admission of the second appeal, this Court has framed the following substantial questions of law:

Whether the first appellate court erred in law and mis-directed itself in reversing the judgment of the trial court overlooking the oral and documentary evidence?

Whether the lower appellate court erred in assuming that wall in question is the exclusive wall of the respondent?

Mr. K. Srinivasan, learned Counsel appearing for the appellant submitted that the respondent/plaintiff has not established her case. According to him though an Advocate-Commissioner was appointed, he has not taken any measurement while inspecting the property and further as per Exs.A1 and A2, sale deeds relating to the respondent/plaintiff, the disputed wall has not been stated as exclusive wall belongs to the respondent herein.

Per Contra, Mr. A. Sankarasubramanian, learned Counsel appearing for the respondent submitted that there is a specific averments in the sale

deeds. As per the document the western boundary of the respondent's property is stated as vacant site and therefore, the appellant cannot claim any right over the wall. According to the learned Counsel for the respondent the western side of the respondent's property was only a vacant site.

In support of his contention, the learned Counsel relied on the documents Exs.A1 and A2. It is not in dispute that the appellant/defendant was not a party to said documents and therefore, the averments in the documents, as contended by the learned Counsel for the appellant/defendant would not bind the respondent herein. Further, the learned Counsel drew the attention of this Court to the schedule of property, to Ex.A1 wherein, the western boundary is stated as house site, belongs to one Shanmuga Pandaram. The appellant/defendant is the only son of the said Shanmuga Pandaram.

The learned Counsel further drew the attention of this Court to the Commissioner's report and plan, Exs.C1 and C2 wherein, the Commissioner has not specifically stated the extent by measuring the property. However, in the sketch Ex.C2, he has stated that a portion of the appellant's property rest on the common-wall on the north side of the respondent's property. According to the learned Counsel from the evidence, it is clear that there is no supporting document for the respondent/plaintiff to establish that the disputed wall is an exclusive property belongs to the respondent. However, the appellant/ defendant has stated that it is a common wall. Even the case of the appellant/defendant is accepted, in a common wall no one can put up any further construction as contended by the learned Counsel for the respondent. In such circumstances, considering the oral and documentary evidence, the trial Court has given a finding that "EB" North-South wall is a common wall of the plaintiff and the defendant. The first appellate Court has held that it is an exclusive wall belongs to the respondent/plaintiff. Hence, both the Courts have held that the respondent herein has got right in the wall, either as a common wall or exclusive wall of the respondent. As contended by the learned Counsel for the respondent, even if it is a common wall, the appellant has no right to put up further construction in the existing old wall. When there is no possible evidence to establish that the disputed wall is an exclusive wall belongs to the respondent/plaintiff, based on the available evidence.

On the record, the courts below could have declared that it is a common-wall belongs to both the parties,to the appeal/suit. Accordingly, the prayer relief of declaration could be modified based on the Advocate Commissioner's report Ex.C1 and the sketch Ex.C2, supported by the other evidence. It is clear that on the eastern side, the house of the respondent/plaintiff is situated and on the western side as per the evidence there is a super-structure put up recently by the appellant/defendant. As it has been a common-wall belongs to the respondent/plaintiff and the appellant/defendant, one party namely the appellant is not entitled to put up any further construction on the common-wall detrimental to the interest of the other. Putting up further construction on the old common-wall would endanger human life. In such circumstances, I am of the view to confirm the relief granted by the court below and only in respect of granting permanent injunction and mandatory injunction. With a modification in respect of the declaration of title, holding that it is a common wall, belongs to both the parties to the appeal.

As far as the substantial questions of law are concerned, based on the evidence available on record, this Court is of the view that the disputed north-south wall, on the west of the respondent/plaintiff's property is only a common wall and therefore, the finding of the court below that it is an exclusive wall belongs to the respondent is not sustainable in law. Accordingly, the substantial questions of law 1 and 2 are answered.

In the result, the second appeal is partly allowed declaring that the disputed north-south wall is a common-wall belongs to the respondent/plaintiff and the appellant/defendant and not an exclusive wall belongs to the respondent herein.

As it is a common wall, the appellant/defendant cannot put up further construction on the common-wall, detrimental to the rights of the respondent, hence, the judgment and decree granting mandatory injunction and prohibitory injunction are to be confirmed and the appeal has to be dismissed. In the result with the modification in respect of declaration of title, the appeal is dismissed. The appellant/defendant is directed to remove the super-structure put up by him on the common wall, within two months from the date of receipt of a copy of this order. The second appeal is disposed of accordingly. No order as to costs.