in S.A.(MD) No.637 of 2005 ... Defendants / Appellants / Appellants in S.A.(MD) No.638 of 2005 ... Respondents / Appellants in Cross.Obj.
(MD) No.4 of 2008
-vs-
Asir Chellappah ... Plaintiff / Appellant / Respondent in S.A.(MD) No.637 of 2005 ... Plaintiff / Respondent / Respondent in S.A.(MD) No.638 of 2005 ... Cross Objector in Cross.Obj.(MD) No.4 of 2008 PRAYER (S.A.No.637 of 2005): Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree, dated 26.10.2004, passed in A.S.No.68 of 2002 on the file of the learned II Additional Subordinate Judge, Nagercoil, modifying the Judgment and Decree, dated 10.10.2002, made in O.S.No.115 of 1992, on the file of the learned Additional District Munsiff, Nagercoil.
PRAYER (S.A.No.638 of 2005): Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree, dated 26.10.2004, passed in A.S.No.59 of 2003 on the file of the learned II Additional Subordinate Judge, Kanyakumari at Nagercoil, confirming the Judgment and Decree, dated 10.10.2002, made in O.S.No.115 of 1992, on the file of the learned Additional District Munsiff, Nagercoil.
PRAYER (Cross.Obj.(MD) No.4 of 2008): Cross Objection is filed under Order 41 Rule 22 C.P.C., against the Judgment and Decree, dated 26.10.2004, made in A.S.No.59 of 2003, on the file of the II Additional Subordinate Judge, Nagercoil.
Since the reliefs sought for in both the second appeals as well as the cross objection are arising from the same decree. They were clubbed together, heard together and are being disposed of by this common Judgment.
2. The plaintiff filed the suit in O.S.No.115 of 1992, before the learned Additional District Munsif, Nagercoil, seeking the relief of declaration, permanent injunction and mandatory injunction. After contest, the learned Additional District Munsif, Nagercoil, by Judgment and Decree, dated 10.10.2002, decreed the suit partly in respect of the relief regarding declaration and dismissed the suit in respect of the other reliefs.
3. After contest, the learned II Additional Subordinate Judge, Nagercoil, by a common Judgment and Decree, dated 26.10.2004, allowed the appeal in A.S.No.68 of 2002 in part by the plaintiff and dismissed the appeal in A.S.No.59 of 2003 by the defendants.
4. Challenging the correctness of the Judgment and Decree passed by the learned II Additional Subordinate Judge, Nagercoil, as stated supra, the respective parties have preferred the present second appeals and cross objection.
5. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The suit property was originally belonged to the plaintiff's mother, namely, Deivayee and she died intestate. After her demise, the suit property was inherited by the plaintiff and her other legalheirs. As per a Release Deed, dated 25.01.1989, the plaintiff became the absolute owner of the suit property. The defendants are husband and wife. Their property is situated on the northern side of the suit property. The suit property is to an extent of 2 7/8 Cents with a roof building thereon. The northern wall of the suit property is exclusively belonged to the plaintiff and on this wall alone, the roof is allowed to be rested. The suit property is an aged property. The rain water caves from the roof of the plaintiff's property is falling towards northern side in the defendants' property for more than 40 years. The defendants wanted to put up a wall on the northern wall of the plaintiff's house. Therefore, they cut and removed the rafters of the plaintiff's house. More than 100 tiles were destroyed. The defendants have no right to occupy the northern wall of the plaintiff. The right of easement allowing the rain water to fall in the defendants' property, which was continued for more than 40 years, had been restrained. Already, the defendants, taking advantage of the absence of the plaintiff, have encroached upon the suit property and made construction for 12 feet height. The defendants proposed to extent the construction on the northern wall of the plaintiff. Therefore, the defendants have to be restrained from making further construction by resting their construction on the northern wall of the plaintiff and the construction made by way of cutting and removing the rafters and damaging the tiles used to restore the original position. Hence, the suit.
6. The brief averments of the written statement filed by the defendants that are necessary to decide this appeal are as follows:
Out of 5 Cents of land, the eastern half portion is belonged to the defendants. The plaintiff's mother got 1 + share out of the 5 Cents of land. With an ulterior motive, a portion of the defendants' property had been included in the suit property. It seems that the plaintiff has got release deed from his brothers and sisters. The description made in the release deed is incorrect. The plaintiff is not entitled to the exclusive half portion of the southern side. Therefore, the plaintiff is entitled to only 2 + Cents, but not 2 7/8 Cents. There is no northern wall in the suit property and there is no easement right to the plaintiff. The first defendant purchased a portion of the suit property and constructed a building thereon and residing therein. The northern wall belongs to the first defendant. The plaintiff's property as well the defendants' property were measured by Surveyor. The first defendant was allotted the land in Survey No.18/110, which is situated on the eastern side of the suit property. It covers northern half portion out of 05 Cents of land. This was originally belonged to Aseerwatham and purchased by the first defendant under two separate Sale Deeds, dated 29.06.1976 and 20.12.1978. By that time, the measurement as per lie was lesser than 2.5 Cents. The first defendant is actually entitled to 2 + Cents on the northern side. Prior to seven years, the old building was demolished and a new building was constructed. By that time, northern wall was not destroyed. That situates on the northern side of the plaint schedule property. The first defendant constructed the new building and the wall was on the southern end. A concrete pillar was constructed from the ground level. After construction of the ground floor, the defendants were residing therein. By the said construction, the plaintiff is not aggrieved. Adjacent to this wall alone to an extent of 18 Feet a construction was made by defendants. This construction is within their area. It is incorrect to state that tiles were damaged and rafters were removed. No ventilators or windows were fixed as stated in the plaint. Because of the construction, the plaintiff got envied with the defendants and the plaintiff is not entitled for any decree as prayed for. There is no cause of action for the suit. The suit property was not properly described and the court fee paid is incorrect. The plaintiff has been estopped from raising any claim from the defendants. Therefore, the suit is liable to be dismissed.
7. The brief averments of the additional written statement filed by the defendants that are necessary to decide this appeal are as follows: The plaintiff is not entitled to question the resurvey proceedings. That has been finalized. The first defendant is entitled to entire extent as per Re- survey No.18/110. The suit wall comes within this area. Therefore, the plaintiff is not entitled to any decree.
8. Based upon the above pleadings, the Trial Court had framed two issues for consideration.
9. The plaintiff, in order to substantiate his plea, had examined himself as P.W.1 and marked Exs.A1 to A19 and on the side of the defendants, the second defendant was examined himself as D.W.1 and marked Exs.1 to 16, besides Exs.C1 and C2.
10. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court decreed the suit partly in respect of the relief regarding declaration and dismissed the suit in respect of the other reliefs.
11. Aggrieved by the Judgment and Decree of the learned Additional District Munsif, Nagercoil, both the plaintiff and the defendants preferred appeals in A.S.Nos.68 of 2002 and 59 of 2003, respectively, before the learned II Additional Subordinate Judge, Nagercoil.
12. After contest, the learned learned First Appellate Judge allowed the appeal in A.S.No.68 of 2002 in part and dismissed the appeal in A.S.No.59 of 2003.
13. Challenging the correctness of the Judgment and Decree of the First Appellate Court, as stated above, the respective parties have filed the present second appeals and cross objection.
14. At the time of admission of the appeals, the following substantial questions of law were framed for consideration:
(i) Whether the plaintiff is entitled to claim demolition of the constructions, which are admittedly made by the defendants in their property in different re-survey numbers, when it is not included in the plaint schedule?
(ii) Whether the lower appellate court can grant relief of declaration that measurements of re-survey plan is null and void, when it is not sought for by the plaintiff and also when the plaintiff admits that re-survey measurements are correct? And
(iii) Whether a co-owner can file a suit for declaration of title that he is the absolute owner of the property without impleading the other co-owners against the principles of law laid down in 1999 (1) CTC 231.
15. In view of the two appeal, one by the plaintiff and another by the defendant against the two A.S filed against the decree and judgment in O.S.No.115 of 1992, dated 10.10.2002 for the sake of clarity parties are referred to as per the ranking in A.S.No.68 of 2002 which was preferred by the plaintiff and before this Court it is S.A.(MD)No.638 of 2005.
16. The respondent/plaintiff filed the O.S.No.115 of 1992 for declaration of his title over the suit wall and for permanent injunction restraining the appellant/defendant from making any alteration in the wall and for mandatory injunction to remove the additional structure put up by the defendant on the suit wall. After trial, the suit was partly decreed in respect of declaration of title to a limited extent that the suit wall is a common wall and in respect of other reliefs it was negatived.
17. As against the disallowed portion, the plaintiff preferred A.S.No.68 of 2002.While, in respect of decree of declaration of title, the defendant preferred 59 of 2003 and after contest, the learned Sub-Judge,lower Appellate Court was dismissed A.S.No.59 of 2003 and allowed the A.S.No.68 of 2002 in part and hence, two Second Appeals have been preferred by the defendant.
18. The plaint proceeds on the basis that the entire suit property originally belonged to the mother of the plaintiff and thereafter, he inherited on the northern side of the property. The defendant have purchased the property from the common ancestor of the predecessor in-title of the plaintiff. According to plaint, the plaint schedule is above 2 7/8 cent with a building thereon. The description of the plaint schedule property indicates that on the northern wall of the property, the roof of the plaintiff's house rested upon the northern portion of the property and their rain water comes from the roof on the wall and drains out on the either side through terrace of the plaintiff. The defendant cut and removed the refter of the plaintiff's house and caused damaged to the roof tiles. While, defendant have no right to occupy the northern wall of the plaintiff thereby the right of easement to allow the rain water in the defendant property which was enjoyed for more than 40 years has been restrained by the action of the defendant and further on the wall, the defendant have encroached and constructed 12 feet height and hence, sought for permanent injunction and also for mandatory injunction.
19. The sum and substance of the written statement is that out of 5 cents, eastern half portion belongs to the defendant and plaintiff mother has got only 1,1/2 share out of 5 cents and description in the suit property is not clear and plaintiff is entitled to only 2 1/2 cents but not 2 7/8 cent. Further, on factual position, there is no northern wall in the plaint schedule property on the northern side of the suit schedule property, the claim of easementary right has been denied.
20. According to the defendant, he had constructed house and building in door no.28/8-42 and the Survey No. has been duly assigned and for the portion occupied of the defendant is in the Survey No is 18/110 and he has not encroached upon any area belonged to the plaintiff.
21. As stated supra, the trial Court has decreed the suit only in-part by granting declaration that the suit wall is a common wall instead declaration that was sought for by in the plaintiff viz declaration of his exclusive title over the suit wall and other reliefs have been rejected and hence, two appeals as stated supra.
22. The admitted factual matrix of the case are that both the plaintiff and defendants property are rested on the common wall (suit property). The southern of portion out of 5 cents belongs to the plaintiff. While, the northern of portion out of 5 cents belongs to the defendant. Though, as per lay, there is 5 cents however on ground, it appears to be more than 5 cents are available. It is that excess portion comes within the property of the plaintiff or within the northern wall of the plaintiff namely, the suit wall is the question that has to be resolved into.
23. Admittedly, though, both claims that the wall comes within the area,there is no positive evidence is available on record as to who has constructed the suit wall. It appears at the time of purchase, the wall was in existence. As stated supra, the defendant purchased the property from the common ancestors of the plaintiff. According to the pleadings, and their evidence, at the time of re-survey, the suit wall is included in S.No.18/100 which belongs to the defendant.
24. As stated supra, though the entire extent of the properties of the plaintiff and the defendant as per their deeds only 5 cents. Interestingly, both the parties are having more or less 2 1/2 cents each and the walls was constructed in between the two houses and both the parties claims it is their exclusive property.
25. To resolve the factual dispute and to arrive at the actual position where the wall is situated, an Advocate Commissioner was appointed to note down the physical features and accordingly, after conducting the survey of the suit property, he has filed Ex.C.1-Report and Ex.C.2-Map.
26. The salient features of the Advocate Commissioner report Ex.C1 are as follows:-(As observed by him)
a) As per the measurement, the northern wall of the plaintiffs' house does not come within the area of the plaintiffs.
b) The defendants' property was measured as per the resurvey plan and the same has been shown as the plan Ex.C2
c) The defendants constructed a new construction just touching the northern wall of the plaintiffs. But the construction is within the area of the defendants as per the resurvey plan.
d) Some rafter and 25 tiles have been damaged on the portion of the plaintiffs' house and rafters have been cut and removed.
e) There is no encroachment committed by the defendants over the plaintiffs' property and it could not find out who has committed the damage.
f) The northern wall of the plaintiffs' building forms part of the plaintiffs' building and it holds the roof of the plaintiffs' house on the northern side. The northern wall of the plaintiffs' building holds on north east corner as well as north west corner and the thickness of the wall is 1 feet and the age of the northern wall is 8 years old. The age of the building put up by the defendants at the time of the Advocate Commissioner's visit is approximately five years.
g) There is no aerial encroachment as the construction made by the defendants is seen over by the plaintiffs' house. The entire construction made by the defendants is well within the area as per the survey plan.
h) As against the Advocate Commissioner's report-Ex.C.1 and the plan- Ex.C.2, the plaintiffs have not filed any objection nor filed any application to call the advocate commissioner for cross-examination assumes significance.
The learned counsel for the respondent/plaintiff relied on the decision reported in i) AIR 1956 Tra-C 57(V.43 C.19 Feb) (M.P.Philip V.Chinna Subba Iyer Annaswamy Iyer) ii) AIR 1959 MYSORE 244(V 46C 96) Balvant Yadneshwar V.Srinivas Appaji Kulkarni.
In trite in law, in respect of common wall and to right in use and the grant of mandatory injunction, it is to be stated that , it is a common wall "in respect of the right for the use of common wall the parties have to be deemed to be co-owners. It is settled law that any one of such co-owners cannot build upon such a party wall so as to make exclusive use of the wall for himself without the consent of the other co-owner. If any such unauthorized construction removed.
The act of one co-owner in raising the height of the party wall to suit his own convenience without the consent of the other co-owner will constitute trespass in the eye of law. The other party is therefore entitled to a mandatory injunction so that the unauthorized construction over the wall is removed and the position of the wall is restored to the situation in which it existed prior to such unauthorized construction".
The ordinary meaning and legally accepted notion of the term 'Party-wall' is that it is a wall iin between the properties of two adjoining owners and that these owners are tenants in common in respect of that wall. A party-wall much like any other tenancy in common has to be used by the co-tenant for the common benefit or for the convenience of both the co-tenants. At the same time, neither of the two co-tenants is entitled to do any act which is likely to interfere with the enjoyment of the wall by the other. If the height of a party is raised by putting some more construction on it or is lowered by removing a part of it, it is no longer the same wall as before. It is considered that the right of making use of the top of the wall by the said act. It is considered to be an exclusion of one party by the other from the use of the wall as before. It is on this basis that no party is entitled either to raise the wall or to lower it without the consent of the other.
Hence, in the case of a party-wall, the increasing or lowering its height amounts not only an interference with the right of use of the other, but it amounts to an exclusion. It is on this principle the party aggrieved is entitled by means of a mandatory injunction to have the wall brought back to the original position.
It is not necessary that the plaintiff need prove any particular injury or loss or damage caused to him. Hence the question of compensation does not arise. Thus the only remedy that is available to the plaintiff is a mandatory injunction.
27. From the Advocate Commissioner's report Ex.C1 and Ex.C2,
a) it is seen that the thickness of the wall is 1 feet and 9 feet height and running to 108 feet lying in between the two houses.
b) As per the Advocate Commissioner's plan, the front length of the plaintiff's house is 21/2 feet as per the survey records and lay excluding the 9 feet height and 1 feet width of the wall and shown in blue coloured wall. As per lay, the tiled roof of the house is 1 feet protected towards defendants' property in the northern side.
c) In respect of defendants' house, the front length of the defendants' house is 16 feet as per the survey records and lay including 9 feet height and 1 feet width of the blue coloured wall shown in the picture.
d) In view of the admission by P.W.1 in the cross-examination that the wall in question lies within the survey number 18/110 which belongs to the defendants and also a specific physical features note down to the effect that 9 feet height and 1 feet width of the wall is well within the survey number of the defendants assumes significance and therefore, I find that the Lower Appellate Court has not properly appreciated the physical features note down by the Advocate Commissioner's report-Ex.C.1 and Plan-Ex.C.2 for which, the plaintiffs have not filed any objection nor filed any application for cross- examination of the advocate commissioner has committed an error in setting aside the well considered finding of the trial Court.
e) It is no doubt true that the Civil Court while dealing with the question of title can give a declaration as to the validity survey proceedings however, in the absence of any material to hold that the plaintiffs are having a lessor extent as per the title deed or the wall comes within the area of the plaintiffs, the Lower Appellate Court has travelled too far in arising fact not found in records and erred in decreeing the suit in entirety by treating it as a common wall. It remains to be stated that as per the pleadings and the evidence of the defendants and coupled with Ex.C.1 and C.2, the Advocate Commissioner's report and plan and admission in the cross-examination of P.W.1, the trial Court seems to have come to a correct conclusion that the wall in dispute is well within the survey number of the defendants and accordingly, the trial Court refused to grant declaration title for the plaintiffs for the wall is considered to be the well merited and well considered and contra finding recorded by the Lower Appellate Court which is not supported by any evidenciary value or any document is liable to be set aside and the finding of the trial Court is to be restored.
f) The observations regarding the use of common wall and the legal position of party wall and the rights of the parties therein and the grant of relief of mandatory injunction narrated in the preceding paragraphs cannot be applied to the factual position of the present case for the simple reason that as per both pleadings and evidence of the defendants coupled with Ex.C.1 and C.2, when the wall in question is clearly well within the area of the defendants and the same cannot be declared as a common wall and hence, the finding of the Lower Appellate Court treating it as a common wall and also that declaration of the resurvey as null and void is erroneous in law and liable to be set aside.
28. Learned counsel for the respondents also relied upon the decision reported in 1997 AIHC 1340 [B.Kandasamy Vs. V.Shanmugam] for the proposition that the grant of mandatory injunction directing the co-owner and mandatory injunction to remove the construction made on a common party is held to be proper is not applicable to the facts and circumstances of the case, since the wall in question does not situated in the plaintiffs' land and the roof of the plaintiffs' house alone is rested and merely because the roof is vested on one portion of the wall of the defendants, the plaintiffs cannot be permitted to say it is a common wall especially, when the entire wall is situated well within the survey number of the defendants.
29. In view of the discussion above, this Court is of the considered view that the Lower Appellate Court has committed an error in granting the relief of declaration to the plaintiffs to claim the length of the construction which is admittedly made by the defendants in their property in the resurvey number which is not part of the plaint schedule is legally unsustainable and accordingly, the substantial question of law No.1 is answered in affirmative in favour of the appellants herein and the consequential finding rendered by the Lower Appellate Court in this regard is hereby vacated.
30. It appears from the discussion of the Lower Appellate Court judgment that the Lower Appellate Court has without properly appraising of the factual position as deposed by P.W.1 with regard to resurvey measurement and also with regard to the village map Ex.B.7, B.8 and B.9 and also the advocate Commissioner's report Exs.C.1 and plan-Ex.C.2 has erroneously rendered a finding that the resurvey proceedings are null and void and the same is unsustainable in law and accordingly, the said finding of the Lower Appellate Court in this regard is vacated and the same is unsustainable in law and substantial question of law No.2 is answered in affirmative in favour of the appellants herein and consequently, the Lower Appellate Court erred in granting the relief of declaration about the resurvey plan as null and void and especially, when the plaintiffs admitted the same is correct.
31. With regard to the third substantial question of law, in view of the discussion in the preceding paragraphs to the effect that the wall in question is situated within the survey number of the defendants and the wall cannot be termed as a common wall and consequently, the plaintiffs cannot be termed as a co-owner of the wall and in view of the finding in the substantial question of law No.1 and from the plaintiffs could not be claimed as a co-owner and thus, third substantial question of law does not arise for consideration.
32. In fine, based upon the discussion in the preceding paragraphs and the finding rendered, this Court finds that the disputed wall which is 1 feet width and 9 feet height situated between the plaintiffs' house and the defendants' house and also found to be situated well within the survey number and within the extent of the defendants' property and construction put up by the defendants which is 5 years old at the time of inspection is also well within the defendants' area cannot be interfered with and merely because the roof and rafter of the plaintiffs are resting on the wall which is situated to the north of the plaintiffs' property cannot make the wall as a common wall and the plaintiffs have not adduced any evidence to show that the wall is within area or survey number nor rafter is a common area. In this view of the matter, the finding of the Lower Appellate Court is erroneous and of the findings rendered by the Lower Appellate Court are hereby vacated and the decree granted in O.S.No.115 of 1992 on the file of the learned Additional District Munsif, Nagercoil, is hereby restored and that of the Lower Appellate Court is hereby vacated.
33. In the result, S.A.637 of 2005 filed by the defendants is allowed and S.A.No.638 of 2005 filed by the defendants in respect of the Lower Appellate Court to the limited extent of modification given by the Lower Appellate Court is also allowed and Judgment and Decree in A.S.No.68 of 2002 and A.S.No.59 of 2003 are set aside and Judgment and Decree in O.S.No.115 of 1992 is restored and Cross.Obj.(MD) No.4 of 2008 is dismissed.
To:
1.The II Additional Subordinate Judge, Kanyakumari at Nagercoil.
2.The Additional District Munsiff, Nagercoil.
.