Arasappan Karayalar and Subbiah Karayalar vs Subramania Karayalar

V. Bakthavatsalu, J.—The plaintiffs are the appellants. The Plaintiffs filed the suit for permanent injunction. The case of the plaintiffs is as

follows:

The suit property belonged to the mother of the plaintiff by virtue of sale deed dated 7.12.54 wherein the defendant has signed as a witness. The

mother of the plaintiffs died in the year 1972 leaving behind her the plaintiffs and their sister as legal heirs. From the date of purchase till her death,

the mother of the plaintiffs was in enjoyment of the properties. The first schedule property forms part of second schedule property. After the death

of the mother, a partition took place on 20.11.74 and in the said partition, the southern portion of the second schedule was allotted to the first

plaintiff and the northern portion of the second plaintiff.

The first schedule property is an exclusive lane of the plaintiffs'' meant and used as a pathway lane of the plaintiffs'' and the same is described in the

plan as ESDF. The second schedule lies west of the first schedule, and it is described as ABCD. In between the first schedule and vacant site of

the defendant on the east, there is a common wall belonging to both plaintiff and defendant and it is described as BD in the plan. The defendant has

no right of title in the suit property. There is a wall of the plaintiff on the west of their exclusive lane i.e., first schedule property. The Defendant has

replaced his old roof on his property that lies east of the common wail BD. In doing so, he has put up roof as to project it into the first schedule

lane because of that water has fallen from the roof on the first schedule lane. On 19.11.78 the defendant has also planted pegs on the first schedule

property. The plaintiffs objected to the same and sent notice on 27.1.79 asking the defendant to remove the projection. The defendant on receipt

of the notice has removed both the roof and pegs. On 25.8.80, the defendant has tried to put up a new roof into the first schedule property. The

defendant has not respect for law. Therefore, the suit is filed for injunction.

The case of the defendant is as follows:

The plaint plan is not correct. The mother of the plaintiffs was entitled to 2-3/4 cents on the west of the defendant''s property. There is no pathway

to the east of the property purchased by the plaintiffs'' mother. The defendant purchased the property an extent of 75 feet north south and 30 feet

on the south of east west and 20 feet on the north i.e., extent of 4-3/4 cents. After purchase, he has put up a mud wall on the north south. The

defendant is entitled to 224/2 feet on the west of the said mud wall. The above vacant site was intended for draining the roof water of the

defendant''s house. The plaintiffs attempted to put up wall on the west and thereafter, in the presence of panchayatars Pegs were installed and it

was decided that the plaintiff has to keep the wall put up by the plaintiffs on the north of that property as common wall. The plaintiff is entitled to

the property only on the west of ESDF shown in the plaint plan. The common wall lies only on EF. The plaintiffs are entitled to 2-3/4 cents only on

the west of the said wall. The defendant has been in enjoyment of the property EBDF and that he also perfected title by adverse possession.

On the above pleadings, the trial Court has framed 10 issues. On a consideration of oral and documentary evidence, the trial Court dismissed

the suit. The plaintiffs preferred an appeal in EX. A.S. No. 64/83. The learned Subordinate Judge. Tenkasi by judgment dated 17.7.85 dismissed

the appeal. The plaintiffs who lost in both the Courts have come forward with this Second Appeal.

The following substantial question of law was formulated while admitting this Second Appeal.

Whether the Courts below are right in holding that the suit for a mere injunction is not maintainable without a prayer for declaration on the facts and

in the circumstances of this case.

The plaintiffs have filed this suit for injunction in respect of A schedule property which is shown as ESDF in the plaint plan. According to the

plaintiffs, the said A schedule forms part of B schedule. B schedule property in the property purchased by the mother of the plaintiffs under Ex. A-

In the plaint plan, which is marked an Ex. A-2 the suit property is shown as EBDF. On the west of EF are the houses of the first plaintiff and

second plaintiff. On the east of the line BD is the house of the defendant and his cattle shed. It is the case of the plaintiffs that they are entitled to the

entire property shown as ABCD including ESDF. The defendant contend, that the plaintiffs are entitled to property only on the west of EF and not

on the east of EF. The plaintiffs contend that the line BD shown in the plan is common wall of both plaintiffs and defendant and that the plaintiffs are

entitled to the property upto the line BD.

Ex-A-1 the sale deed in the name of the plaintiffs mother will show that the property measuring 18x76-1/2 cents was purchased. The total

extent purchased under Ex. A-1 is 2-3/4 cents. Ex. A-2 is the partition deed entered into between the plaintiffs dividing the above properties into

northern half and southern half. The trial Court has held that the disputed property is a vacant site and that in respect of vacant site possession,

follows title and that the plaintiffs have not filed suit for declaration of title and that the report of the Commissioner will not assist the case of the

plaintiffs and that the plaintiffs failed to establish that they were in possession of the suit property.

The appellate Court has held that the plaintiffs purchased the property only on the west of the suit property and that the commissioner''s plan will

show that larger extent is shown in possession of the plaintiffs that what was purchased under Ex. A-1 and that on the other hand, only lesser

extent is shown in the possession of the defendant than what was purchased by the defendant and that therefore, the plaintiffs are not entitled to

injunction. It is thus, seen that both Courts have concurrently held that the plaintiffs without establishing title to the property are not entitled to

injunction. I see no infirmity in the above concurrent findings of the Courts below.

Learned counsel for the appellants contended that the Courts below failed to take into consideration the survey stones noted by the

Commissioner and that the entire evidence of the plaintiffs will establish that the plaintiffs are entitled to the suit property. The plaintiffs also relies

upon the document Exs. A-7 to A-10. The above document would not establish the case of the plaintiffs that they are entitled to the property upto

the line BD. It cannot be disputed that the defendant is entitled to 4-3/4 cents on the west of the plaintiff''s property. Ex. A-13 the sale deed in

favour of the defendant will show that he is entitled to 30 feet east west and 75 feet north south. The Commissioner''s plan will show that the

defendant''s property lies within the extent of 27'' 6"" on the east of the line DL. Though, the plaintiffs are entitled to 18 feet east west, the

Commissioner''s plan will show that extent beyond point D is about 6 feet. Much reliance, cannot be placed upon the survey stones noted by the

Commissioner, since the extent on east west i.e. EED and FA will come to only 18 feet. If that is so, it is for the plaintiffs to establish that they are

entitled to the suit property which lies on the east of the line AD shown in the Commissioner''s plan. The recitals in the document that the property

of the plaintiffs is situate on the west of common wall and Subramania Karayalar will not show that the plaintiffs are entitled to their property up to

BD shown in the plaint plan. It is stated that the defendant has also filed suit challenging the resurvey and that it is pending. Therefore, neither the

boundaries shown in the plaintiffs document nor the Commissioner''s report will establish the case of the plaintiffs that the plaintiffs are entitled to

the property upto BD shown in the plaint plan Ex. A-2.

As rightly held by the trial Court, that in case of vacant site possession follows title. The plaintiffs cannot claim relief of injunction, unless it is

established that they have got title to the disputed property. It is no doubt true that in a suit for injunction, the question of title can be incidentally

gone into. But, in this case, it is established that the suit property is a vacant site. The entire lane shown in the Commissioner''s plan measure 6 feet.

If the above land is included in the defendant''s property, then the defendant be entitled to 30 feet east west as per the sale deed. It is, thus, seen

that the dispute between the plaintiffs and the defendant involves question of title. Therefore both courts have come to these correct conclusion in

holding that the suit without claiming the relief of declaration of title is not maintainable. On the basis of the documentary evidence produced by the

plaintiffs, it cannot be contended that the plaintiffs were in possession of the suit property on the date of the suit. I hold that the concurrent findings

of the Courts below do not suffer from any infirmity. I hold that then; are no merit in the appeal. In the result, the Second Appeal is dismissed. The

judgment and decree of the Courts below are confirmed. No costs.