The defendant is the appellant herein. The plaintiffs have also filed cross objection.
2.The plaintiffs who are the respondents herein filed a suit for declaration of title over the eastern wall of their house described in the plaint schedule and also for permanent injunction restraining the defendant from in any manner demolishing the said eastern wall of the plaintiffs house.
3.The second plaintiff Krishtapa Nayakkar, who is the son of Thayee Ammal, is the husband of the first plaintiff Athilakshmi Ammal. Originally the suit property belonged to Thayee Ammal, the mother of the second plaintiff. It is the contention of the plaintiff's that the said Thayee Ammal, who purchased the suit property under the Registered Sale Deed dated 29.03.1935, settled the same in the year 1966 in favour of her daughter-in-laws one Athilakshmi Ammal, Lakshmi Ammal @ Kullammal and Patchiyammal. The settlement deed was accepted and acted upon.
4.The second plaintiff would claim 2/3 share in the plaint schedule property under two Registered Sale Deeds executed by Kullammal and Patchiyammal in respect of their one-third share each they got under the settlement deed executed by their mother. It is alleged that the defendant, who has no manner of right or title over the suit property is making attempts to encroach upon the plaintiffs property. Hence, the suit for declaration of title over the eastern wall and also for permanent injunction.
5.The defendant has contended in her written statement that the disputed wall which is the western wall of the defendant which belongs to her and the said wall is not the eastern wall of the plaintiffs. It is false to state that the said wall is situated within the limits of the plaintiff's property. In fact, the said wall lies within the limits of the defendant's property. Even during the pendency of the suit, in the presence of mediator, it was agreed that the plaintiffs should withdraw the suit. In pursuance of the compromise, the defendant offered a sum of Rs.1750/- for which the plaintiff evaded to pass a receipt. Therefore, the plaintiffs are not entitled to continue the suit. With the aforesaid pleadings, the defendant prays for dismissal of the suit.
6.The Trial Court, having observed that neither Exs.A1 to A6 the documents which deal with the property of the plaintiffs nor the property tax receipts Exs.A6 to A10 refer to the right and title of the plaintiffs over the disputed wall and that the plaintiffs failed to establish that the wall which is located on the east of his property is their exclusive wall, dismissed the suit.
7.The first Appellate Court, having adverted to the report of the Advocate Commissioner Ex.C1 and the plan, Ex.C2 in the background of the evidence of the defendant, arrived at a decision that the suit wall is a common wall of both the parties. Therefore, the first Appellate Court, having declared that the disputed wall is a common wall, granted only a relief of permanent injunction in favour of the plaintiffs.
8.The defendant, aggrieved by the Judgment of the first Appellate Court, preferred the present second appeal and the plaintiffs aggrieved by the declaration made by the first Appellate Court that the suit wall is a common wall, chose to file the cross objection.
9. The following substantial question of law was framed for determination at the time of admission of the second appeal:-
"Whether the judgment and decree of the first appellate court that the suit wall is a common wall is legally sustainable in view of Ex.B1 wherein the respondents conceded the ownership of the appellant regarding the suit wall"
10. Learned counsel appearing for the defendant/appellant would submit that none of the documents filed on the side of the plaintiffs/respondents refers to the disputed wall as that of the exclusive wall of the plaintiffs. The wrong measurement given by the Advocate Commissioner was banked on by the first appellate court. It is his further submission that Ex.B1 Compromise Muchalika was not at all considered in the proper perspective by the first appellate court. It is his legal submission that the plaintiffs, having compromised the dispute arisen between themselves and the defendant before the mediators, cannot pursue the suit filed by them.
11. Learned counsel appearing for the respondents/plaintiffs would contend that though the documents produced on the side of the plaintiffs do not refer to the wall in dispute, the report of the Advocate Commissioner, Ex.C1 and Plan, Ex.C2 filed by the Advocate Commissioner would go to show that the defendant/appellant is in possession of the total extent of 36.11 feet whereas, as per the documents filed by her, she is entitled only to 32 feet. It is his further submission that only if the 9 inch wall is added to the constructed portion of the plaintiffs, the east-west measurement of the plaintiffs' property comes to 34-1/2 feet. The plaintiffs have established by producing Exs.A1 to A6 that they are entitled to an extent of 34-1/2 feet east-west. It is his further submission that Ex.B1 Compromise Muchalika was not acted upon. Referring to the evidence of DW1, he would submit that DW1 categorically admits that she agreed to pay compensation for the wall as the wall belongs to the plaintiffs. Therefore, he would submit that the disputed wall may be declared as the exclusive wall of the plaintiffs.
12. The plaintiffs, who have come forward with a suit for declaration of title with respect to the eastern wall are bound to establish that they are the exclusive owners of the disputed wall. As rightly pointed out by the learned counsel appearing for the defendant, neither Exs.A1 to A6, the title deeds and the mortgage deed nor Exs.A7 to A9 property tax receipts would refer to the exclusive right of the plaintiffs over the wall in dispute. The plaintiffs, have not produced any document of title to establish that they are the exclusive owners of the wall which is located on the eastern side of their properties.
13. The plaintiffs heavily bank on the report of the advocate commissioner, Ex.C1 and the plan, Ex.C2 filed by him. True it is that the defendant has not filed any objection to the advocate commissioner's report. But, the fact remains that the advocate commissioner has not measured the suit property with the assistance of any qualified surveyor. Therefore, the measurement done by the advocate commissioner is only an approximate one.
14. The title deeds produced by the plaintiffs would go to show that they are entitled to 34-1/2 feet on the east-west and the defendant is entitled to 32 feet on the east-west. The advocate commissioner, having measured the portion of the plaintiffs, filed a report with plan that the plaintiffs' constructed portion measures 33.7 feet and the wall measures 9 inches breadth whereas the defendant has constructed a house with the measurement of 28 feet on the east-west. There is a vacant space on the east by 5.2 feet and west by 3.9 feet apart from the wall in dispute. The advocate commissioner's report and plan would suggest that the defendants have been in possession and enjoyment of 36.11 feet apart from the wall in dispute.
15. As already observed by this court, the measurement had not been done by the advocate commissioner with the assistance of a qualified surveyor. Secondly, the documents produced on either side would establish that the plaintiffs are the owners of the property measuring 34-1.2 feet on the east-west and the defendant is entitled to only 32 feet on the east-west. The measurement of the property of the defendants done by the advocate commissioner is found to be patently wrong. Therefore, based on the report of the advocate commissioner in the background of the plan filed by him, the court cannot jump to a conclusion that the wall portion belongs to the plaintiffs more especially when the plaintiffs have not let in independently any evidence to indicate that they are the exclusive owners of the wall in dispute.
16. Very strangely the first appellate court arrived at a decision that the wall in dispute is a common wall belonging to both the plaintiffs and the defendant. It is to be noted that it is nobody's case that the suit wall is a common wall of both the parties. Such a finding rendered by the first appellate court against the pleadings of the parties and the evidence let in by them has given scope for appeal and cross appeal as both the parties are aggrieved by the judgment of the first appellate court.
17. The court is not supposed to introduce a new finding without any foundation to arrive at such a finding. When the parties before the court are fighting with each other claiming exclusive title over the wall in dispute, the court cannot arrive at a decision that both the parties are entitled to the disputed portion.
18. In the absence of any document of title to clinch the issue as to who actually is the absolute owner of the wall in dispute, the court will have to go into the physical features of the properties. There is no dispute to the fact that the disputed wall does not abruptly stop with the property of the plaintiffs. The wall in dispute is extended further to cover the entire property of the defendants. If the disputed wall is the exclusive wall of the plaintiffs, the said wall would not have been extended further to cover the property of the defendant. Therefore, the physical features noted down by the advocate commissioner would indicate that the wall is not an exclusive one of the plaintiffs.
19. Coming to the legal submission made by the learned counsel appearing for the defendant, it is found that the plaintiffs, having already filed a suit on 3.5.1989, chose to compromise the matter by executing Muchalika, Ex.B1 on 7.5.1989. In the said Muchalika, the plaintiffs, having unambiguously admitted that the defendant is the owner of the wall in dispute agreed to receive a sum of Rs.1750/= towards the damage that may be caused to his house on account of demolition of the said wall by the defendant.
20. The defendant has set up a plea in the written statement specifically that the Compromise Muchalika, Ex.B1 dated 7.5.1989 was entered into between the parties at the intervention of the panchayatdars. PW1, during the course of evidence, has categorically admitted that in the presence of panchayatdars, the said Compromise Muchalika was executed by the parties. But, the fact remains that the plaintiffs refused to receive a sum of Rs.1750/= offered by the defendant. True it is that DW1 has deposed before the court that a sum of Rs.1750/= was directed to be paid by her to the plaintiffs as the wall was the property of the plaintiffs. Firstly, the said version of the defendant during the course of cross-examination cannot be truncated to decide the issue involved in this matter. It is the consistent case of the defendant that the wall belongs to her and the plaintiffs do not have any right over the disputed wall. If at all the wall belongs to the plaintiffs, there would not have been any necessity for the defendant to go in for any compromise as detailed in Ex.B1 before the panchayatdars.
21. It is relevant to refer to Order 23 Rule 3 of the Code of Civil Procedure which reads as follows:-
"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit."
22. The defendant has established before the court that during the pendency of the present suit, a panchayat was convened and in the said panchayat, the dispute with respect to the wall was referred and the parties agreed to compromise the dispute pending before the court and as a result of which the terms of compromise was reduced into writing in the form of a Muchalika. It is also not a case where the plaintiffs disagree with or dispute the terms of the Compromise Muchalika, Ex.B1 filed before the court.
23. It is submitted by the learned counsel appearing for the plaintiffs that the Muchalika does not refer to the said wall. On a careful perusal of Ex.B1, it is found that the wall in dispute between the parties was specifically referred to in Ex.B1. The pending suit was also referred in the Compromise Muchalika, Ex.B1 clinched by the parties. In fact, the plaintiffs had agreed to withdraw the suit in the aftermath of the compromise entered into between the parties.
24. It is in evidence that the defendant tendered a sum of Rs.1750/= to the plaintiffs, but, the plaintiffs admittedly refused to receive the said amount. Further, the said amount has been directed to be paid by the panchayatdars only towards the damage that may be caused to the structure of the plaintiffs on account of the demolition of the wall in dispute.
25. The entire dispute revolves around the wall which is situate on the east of the plaintiffs' property and west of the defendant's property. The said dispute was amicably settled between the parties and the same was reduced into writing under the form of a Muchalika. Both the parties also have signed therein in the presence of the panchayatdars. It has been established to the satisfaction of the court that the dispute between the parties with respect to the wall had been compromised immediately after filing of the suit by the plaintiffs. As the defendant has established that the dispute was already compromised between the parties and the same was reduced into writing as evidenced by Ex.B1, the court has no other option except to record the compromise under Order 23 Rule 3 of the Code of Civil Procedure. Therefore, the legal submission made by the learned counsel appearing for the defendant that the plaintiffs cannot prosecute the suit in the aftermath of the compromise of the dispute in the suit is well founded. It is held that the plaintiffs have no right to prosecute the suit after the entire dispute revolving around the wall has been compromised between them. The plaintiffs can receive only a sum of Rs.1750/= as compensation towards the damage that may be caused to their structure on account of demolition of the wall in dispute.
26. Factually, the plaintiffs failed to establish that they are the absolute owners of the wall in dispute. Legally, the plaintiffs are not entitled to prosecute the suit as a compromise was already entered into between the parties and the same was recorded. On both grounds, it is found that the plaintiffs are not entitled to any of the reliefs they have sought for.
27. In view of the above, setting aside the judgment of the first appellate court and sustaining the judgment of the Trial Court, the second appeal preferred by the defendant stands allowed and the cross objection stands dismissed. There is no order as to costs.
Ps/ssk To
1.The Subordinate Judge, Kancheepuram
2.The Principal District Munsif, Kancheepuram