A. Yagappan vs A. Arockiasamy @ Thambi Arockiam

P.R. Shivakumar, J.—The Defendant in the original suit is the Appellant in the second appeal. O.S. No. 542 of 2002 was filed by the

Respondent herein against the Appellant herein for the relief of permanent injunction not to interfere with the Respondent''s/Plaintiff''s enjoyment of

the suit property shown as ''ABCD'' in the plaint plan.

A small stretch of land measuring North-South 5 feet and East-West 42 feet lying on the North of the Plaintiff''s residential house comprised in

old S. No. 520/1 (new S. No. 895/34) is shown as the suit property. The northern boundary of the suit property is shown to be the open space

belonging to the Appellant/ Defendant having a width of 1 foot and east-west length of 42 feet, beyond the north of which the house of the

Appellant/Defendant has been constructed.

The case of the Respondent/Plaintiff is that he had left a space on the North of his house measuring North-South width of 5 feet and East-West

length of 42 feet for the convenient enjoyment of his house and the Appellant/Defendant, instead of leaving sufficient space on the south of his

house, left a space to a width of one foot alone; that when the Appellant/ Defendant put up a doorway for his house on the South, the

Respondent/Plaintiff raised an objection to the same stating that the one foot space left by him would not be sufficient to have an entrance on the

Southern side of his house, whereupon the Appellant/Defendant informed that he would close the southern entrance and provide entrance on the

east; that pursuant to the same, the Respondent/Plaintiff put up a fence on the northern border of the open space left by him; that the

Appellant/Defendant tried to remove the fence made up of palmirah leaf stumps (Panaimattaigal) and attempted to use the space left by the

Respondent/Plaintiff as an access for reaching his house and that hence, the Respondent/Plaintiff was constrained to file the suit for the above said

relief.

The Appellant herein/Defendant filed a written statement denying the plaint averments and contending that the Respondent''s/Plaintiff''s property

was comprised in S. No. 895/34 whereas the S. No. 895/33 belonged to the Appellant/Defendant; that the Appellant /Defendant got his property

measured and its boundaries fixed by the revenue authorities; that the Appellant/ Defendant did not make any attempt to encroach upon the

property of the Respondent/Plaintiff as contended in the plaint; that on the other hand, the Respondent/Plaintiff was making attempts to encroach

upon the Appellant''s/Defendant''s land which was successfully prevented and that hence, the suit filed by the Respondent/Plaintiff for injunction

should be dismissed.

The trial court framed necessary issues and tried the suit. In the trial, four witnesses were examined as P. Ws 1 to 4 and ExS.A1 to A4 were

marked on the side of the Respondent herein/Plaintiff, Whereas, only one witness was examined as D.W.1 and three documents were marked as

Ex.B1 to Ex.B3 on the side of the Appellant herein/Defendant. One more document relating to the survey measurements taken for the property of

the Appellant/Defendant, which was summoned from the Tahsildar was marked as Ex.X1.

The learned trial Judge, on a consideration of evidence, decreed the suit and granted the relief of permanent injunction as prayed for without

costs. The judgment and decree of the trial court, dated 22.04.2003 were confirmed by the lower appellate court by its judgment and decree

dated 28.04.2006, pronounced in A.S. No. 106 of 2004, an appeal preferred by the Appellant/Defendant. As against the concurrent judgments of

the courts below, the present second appeal has been filed.

A Second Appeal against the decree of the appellate court shall lie to the High Court u/s 100 of CPC only on a substantial question of law.

Unless the Appellant is able to show that the Second Appeal involves a substantial question of law, the second appeal shall be dismissed at the

stage of admission itself without even issuing notice to the lower appellate court or to the Respondent. Question of fact cannot be agitated in the

Second Appeal, unless a question of fact gets elevated to the position of a substantial question of law. In this case, the suit has been decreed and

the defiance plea of the Appellant/Defendant has been rejected based on the findings of fact recorded on appreciation of evidence. None of the

findings of fact recorded by the trial court and confirmed by the lower appellate court on depreciation of evidence, is shown to be perverse.

The property of the Respondent/Plaintiff is with the measurement of North-South 18 feet and East-West 44 feet. The same is comprised in S.

No. 895/34 in Nochi Odaipatti, Kavanoothu Group, Dindigul Taluk. It is also an admitted case that North of the Respondent''s/ Plaintiff''s

property lays the property belonging to the Appellant/Defendant and the same also does have the very same measurements, namely North-South

18 feet and East-West 42 feet. The property of the Respondent/Plaintiff consists of the area over which their ancestral house was situated and the

area that was purchased subsequently from one Rasu Servai S/o. Daniel Servai. The area over which the ancestral house of Respondent/Plaintiff

was situated forms the Western part of the entire property of the Respondent/ Plaintiff and it measures 18 feet North South and 13 feet East-West.

The property that was lying on the East of the ancestral house of the Respondent/Plaintiff measures North-South 18 feet and East-West 29 feet

and the same was purchased by the Respondent/Plaintiff under Ex.A.1 - sale deed. Thus the Respondent/ Plaintiff became entitled to the total area

with a measurement of North-South 18 feet and East-West 42 feet. After the purchase of the Eastern part of his property, the Respondent/

Plaintiff demolished the old house and put up a new house. Similarly on the Northern part of the Plaintiff''s property belonging to the Appellant/

Defendant which also measures North-South 18 feet and East-West 42 feet, the Appellant/Defendant put up a construction. All these facts are

admitted and are not disputed.

The contention of the Respondent/Plaintiff is that while putting up the construction in his property some 25 years back, he left a space of one

foot on the West 2 feet on the South and 5 feet on the North for his convenient enjoyment of the house property. It is also the contention of the

Respondent/Plaintiff that the 5 feet space left on the North of his house was meant for his own use and on the Northern border of the said 5 feet

space, which is also the dividing line of the property of the Respondent/Plaintiff and the Appellant/Defendant, he had put up a fence using palmyrah

leaf stems.

It is the further contention of the Respondent/Plaintiff that while putting up construction in his property, the Appellant/Defendant left only a small

space measuring 1 foot on the South of his house and he wanted to open an entrance on the Southern wall of his house; that the same was

objected to by the Respondent/Plaintiff; that the Appellant/Defendant informed the Respondent/Plaintiff that he would have an opening on the

Eastern side of his house which faces the street; that subsequently the Appellant/Defendant tried to remove the fence and use the space left by the

Respondent/Plaintiff on the North of his house claiming the same to be the common lane and that hence, the Respondent/Plaintiff was constrained

to file the suit.

The space measuring East-West 42 feet North-South 5 feet, which situates on the North of the Respondent''s/Plaintiff''s house, is shown to be

the suit property. The same is shown as ABCD and red washed in the plan attached to the plaint. On the North of the suit property, there is a gap

of one foot North-South which alone is said to be the space left by the Appellant/Defendant in his property for his convenience. The crux of the

contention of the Appellant/Defendant is that the suit property come within S. No. 895/33 belonging to the Appellant/Defendant and it does not

come within S. No. 895/34 belonging to the Respondent/Plaintiff. However, all the witnesses examined on the side of the Respondent/Plaintiff have

categorically stated that out of the total extent measuring 36 feet North-South and 42 feet East-West, Northern half belonged to the

Appellant/Defendant and the Southern half belonged to the Respondent/Plaintiff and that when dispute arose for the space between the house of

the Appellant/Defendant and that of the Respondent/Plaintiff, a panchayat was held and pursuant to the decision taken by the panchayat, the total

extent of East-West 42 feet and North-South 36 feet was equally divided and the boundary between the Defendant''s property and the Plaintiff''s

property was fixed. Clear evidence has been adduced to the effect that the Defendant having left approximately 11/2 feet to 2 feet space alone

tried to have entrance on the Southern wall of his house; that when the attempt of the Appellant/Defendant was resisted by the

Respondent/Plaintiff, the Appellant/Defendant caused a panchayat to be convened and informed the panchayat dhars that he would have the

opening of his house on the East; that despite having given such undertaking he continued to make attempts to trespass into the suit property and

that hence, the Respondent/Plaintiff had to file the suit.

As against the said clear pleading and evidence on the side of the Respondent/Plaintiff, the Appellant/Defendant has not chosen to enter the

witness box and depose in support of his case and to show that the suit property either belonged to the Appellant/ Defendant or is a common

property belonging to both. On the other hand, an official from the revenue department has been examined as the sole witness on the side of the

Appellant/Defendant and through him the file relating to survey measurement of the Appellant''s/ Defendant''s property was marked as Ex.X.1. The

said evidence, no doubt shows that on the application of the Appellant/Defendant the property of the Appellant/ Defendant was measured and

boundary stones for his property were planted. But, both the Courts, after meticulously examining all the documents and the evidence of D.W.1,

came to the conclusion that the said document is of no help to the Appellant/Defendant to show that the suit property does not belong to the

Respondent/Plaintiff absolutely.

The Courts below have pointed out the fact that in Ex.X1 measurements have not been noted and that the survey was conducted only in

respect of S. No. 895/33 belonging to the Appellant/Defendant and not in respect of S. No. 895/34 belonging to the Respondent/Plaintiff. There is

also lack of evidence to show where lies the boundary stones fixed by the revenue authorities, who surveyed the land. When clear and cogent

evidence was adduced on the side of the Respondent/ Plaintiff that on the North of his house he had left a space of 5 feet for his use, which is

alone shown as the suit property, and that the mid line between the properties of the Respondent/Plaintiff and the Appellant/Defendant is on the

Northern border of the 5 feet space shown to be the suit property, the Defendant has not let in reliable evidence to show that his property includes

any portion of the suit property.

As pointed out supra, admittedly the North-South measurement of the Respondent''s/Plaintiff''s property is 18 feet and the North-South

measurement of the Appellant''s/Defendant''s property, which lies on the North of the Plaintiff''s property is also 18 feet. The Respondent/Plaintiff

has adduced clear evidence to show the North-South measurement of his property to be 18 feet and it extends up to the Northern border of the

suit property. There is no clear and contra evidence on the side of the Defendant as to what is the North-South measurement of the Defendant''s

property, which is available on the North of the suit property. All these aspects were properly considered by the Courts below and upon such

consideration, the Courts below have arrived at a correct and concurrent finding that the suit property exclusively belongs to the Respondent/

Plaintiff and that the Appellant/Defendant besides staking claim to it, also made an attempt to encroach upon the same. Based on the said findings

of fact, the Courts below have held that the Respondent/ Plaintiff is entitled to the relief of permanent injunction as sought for by the Respondent/

Plaintiff. There is no defect or infirmity, much less perversity in the findings of the Courts below. As pointed out supra, the Second Appeal is sought

to be filed on a question of fact, which is not even shown to be defective or infirm, much less perverse and not on a substantial question of law. No

substantial question of law is involved in this Second Appeal. Hence, this Second Appeal deserves to be dismissed at the stage of admission itself.

Accordingly, the Second Appeal is dismissed. Consequently, connected M.P.(MD) No. 1 of 2010 is also dismissed. However, there shall be

no order as to costs as the Second Appeal is dismissed at the admission stage itself.