P. Thilagamani vs S. Sethuraman

R.S. Ramanathan, J.—The unsuccessful Plaintiff in both the courts below is the Appellant in this appeal.

The Appellant filed the suit for injunction restraining the Respondent/Defendant from demolishing the wall measuring 28-1/2 feet length and 1-1/2 feet width which is situate in between the Appellant''s and Respondent''s properties.

The case of the Appellant is that she purchased her property under a registered sale deed dated 2.10.1989 and the property purchased by her is having a total extent of 2365 sqft and out of that area, she has constructed a tiled house having an extent of 1496-1/4 sqft and on the southern side of her property, there is a wall having a length of 28-1/2 feet east-west and 1-1/2 feet north-south and the Respondent is having a house south of the said wall. It is her further case that the Respondent is also having a wall on his northern side and the Appellant''s southern side wall and the Respondent''s northern side wall are constructed adjacent to each other and there is no space between the two walls and the Respondent, while demolishing his property, attempted to demolish the Plaintiff''s wall which is situate on the southern side of her property and therefore, the suit was filed.

The Respondent disputed the claim of the Appellant stating that the disputed wall is situate within the area purchased by the Respondent and the Appellant has no right or title over the same. It is the further case of the Respondent that the disputed wall exclusively belongs to him and in his sale deed also, it has been clearly mentioned that the northern wall viz., the disputed wall belongs to him absolutely and originally both the properties were owned by one person and the Plaintiff purchased the property in the year 1989 and in the Plaintiff''s sale deed, it has not been mentioned that the southern wall is the exclusive wall of the Plaintiff and the Respondent purchased the property on the southern side from the same owner and in his sale deed, it was mentioned that the suit wall is the exclusive property of the Respondent. Therefore, the Respondent contended that the Appellant, without proving her title over the same, is not entitled to the claim of injunction.

The Trial Court framed three issues as follows:

i) Whether the suit wall is situate in the Plaintiff''s property.

ii) Whether the Plaintiff is entitled to the relief of permanent injunction.

iii) To what relief the Plaintiff is entitled.

The Trial Court, while deciding issues 1 and 2, disbelieved the report of the Commissioner, who inspected the property and held that the Plaintiff failed to prove that the southern wall lies within her boundary and during evidence, the Plaintiff admitted that the suit wall is a common wall, whereas in the pleadings, she claimed that the suit wall is her exclusive property and different story was introduced in evidence that the wall is having a thickness of 3 feet and each party is entitled to 1-1/2 feet and the Respondent/Defendant is attempting to demolish the Plaintiff''s 1-1/2 feet width wall and the Plaintiff has not proved her case viz., the wall is the exclusive wall or the wall is a common wall and the Plaintiff, without praying for a declaration that the wall is a common wall or exclusive wall, is not entitled to the relief of injunction.

The lower appellate court also independently appraised the oral and documentary evidence and concurred with the findings of the Trial Court and dismissed the appeal. Aggrieved by the same, the second appeal is filed.

The Appellant framed the following substantial questions of law in the second appeal:

"1) Whether the decision of the courts below is justified in terms of the legal effect and on the application of principle of law to the inference of fact from the recitals or contents of the document of title to the Plaintiff i.e., Ex.A1 on the basis of the material evidence and the report of the commissioner.

2) Whether the courts below have ignored the material evidence or misread the material evidence on the facts of the case with regard to the identification of the boundary of the Plaintiff''s property on the southern side in terms of the measurements as given in the document of title to the Plaintiff i.e., Ex.A1.

3) Whether the courts below have drawn wrong inference by applying the law erroneously when the material and relevant facts regarding the dispute with respect to the width of the southern wall of the Plaintiff''s property had been proved."

It is submitted by the learned Counsel for the Appellant that the Advocate Commissioner has clearly stated that the wall is a common wall having a width of 3 feet and the Defendant attempted to demolish the suit wall and without appreciating the same, both the courts below have erroneously held that the Plaintiff has not proved her case that the wall is her exclusive wall. The learned Counsel further submitted that even assuming that the wall is not the exclusive wall of the Plaintiff, having regard to the fact that the suit wall separates the properties of the Plaintiff and Defendant, it must be construed as a party wall and in that case, both the parties are entitled to have equal rights over the same and the Respondent/Defendant cannot demolish that party wall.

On the other hand, learned Counsel for the Respondent submitted that the Appellant/Plaintiff has come to court with a specific pleading that the suit wall is her exclusive wall and it is situate within her boundary. But, in the evidence she admitted to project a case that the suit wall is a common wall. But, the Plaintiff failed to prove through evidence that the suit wall is her exclusive wall or it is a common wall belonging to the Plaintiff and the Defendant. The learned Counsel further submitted that even according to the admission of the Plaintiff, the disputed wall is situate south of her wall, which is shown as ''MN'' in the rough plan and without proving that the disputed wall lies within her boundary, the Appellant/Plaintiff cannot ask for injunction and in her sale deed, Ex.A1 also, it has not been stated that the suit wall is the exclusive property of the Plaintiff or the common property of the Plaintiff and the Defendant. He, therefore, submitted that both the courts below have concurrently held that the suit wall is not the property of the Appellant/Plaintiff and the concurrent finding of fact cannot be interfered with in the second appeal.

In this appeal, it is admitted that the Plaintiff''s property is on the northern side and the Defendant''s property is on the southern side. In the plaint, it has been stated by the Appellant/Plaintiff that ''ABCD'' shown in the rough plan of the property was purchased by her and in that property, she has constructed a building and that was shown as MAEFGBNHIJKL and on the southern side of MN, the wall covering 28-1/2 feet in length and 1-1/2 feet in breadth is situate within the area of land purchased by the Plaintiff from the earlier owner and adjacent to the Plaintiff''s house, on the southern side is the Defendant''s house and the wall of the Defendant''s house is situate on southern side of the Plaintiff''s house.

It is further stated that two walls measuring about 28-1/2 feet in length and 1-1/2 feet in width were constructed and there is no space between the two walls.

Therefore, a reading of the plaint would make it clear that the Plaintiff is entitled to have a wall south of her building MN and adjoining the same, the Defendant also constructed a wall and there is no space between the two walls. In evidence, the Plaintiff has stated that the disputed wall is situate south of her wall having a length of 28-1/2 feet east-west and 1-1/2 feet width and it is situate adjacent to her wall.

Therefore, it clear from the admission made by the Plaintiff that south of her constructed portion, the suit wall is situate and he claims ownership over the wall which fact is disputed by the Respondent/Defendant. The Plaintiff also admitted in evidence that after the filing of the suit, the Defendant demolished one of the two walls and the specific admission is that ",uz;L Rth; ,Ue;jjpy; tHf;fpw;F gpd;g[ xU Rtiu ,oj;Jtpl;lhh;fs". Therefore, the specific case of the Plaintiff was that there are two walls and the Plaintiff and the Defendant constructed each wall on their side and one wall was demolished by the Defendant after filing of the suit. He has not stated as to which wall was 9 demolished by the Defendant and we can presume from the evidence of the Plaintiff that according to the Plaintiff, the Defendant must have demolished the wall constructed by him which is situate on the southern side of the Plaintiff''s exclusive wall. Therefore, the Plaintiff has proceeded with the case that the suit wall is her exclusive wall.

Admittedly, the Plaintiff has not taken any steps to measure her property when he applied for appointment of the Commissioner to bring to the knowledge of the court that the disputed wall lies within her boundary. The Commissioner also did not measure the Plaintiff''s property to find out whether the disputed wall is situate within the Plaintiff''s property. On the other hand, the Commissioner has stated in his report that the wall on the southern side of the Plaintiff''s house and on the northern side of the Defendant''s house is a common wall and the width of the common wall is 3 feet. It is further stated by the Commissioner that the wall adjoining the Plaintiff''s common wall is having width of 1-1/2 feet and that wall was fully demolished. When the wall has been demolished when the Commissioner inspected the property, it is surprising to know how the Commissioner has stated in his report that the wall is having a width of 3 feet and it is a common wall.

Further, as per the Commissioner''s report, the disputed wall is adjoining the common wall of the Plaintiff''s house.

Taking into consideration of these facts, the Trial Court and the first appellate court rightly rejected the Commissioner''s report and held that even according to the Plaintiff, as per rough plan, Ex.A2, the disputed wall is situate on the southern side of the Plaintiff''s house shown as MN in the rough plan and therefore, without proving that the said wall lies within the area of the Plaintiff''s property, the Plaintiff cannot ask for injunction.

Further, the physical features found by the Commissioner viz., the existence of staircase adjoining the disputed wall on the southern side would also make it clear that the disputed wall cannot be the separate property of the Plaintiff. Further, as rightly held by the courts below that in the Defendant''s sale deed viz., Ex.B1, his northern wall has been described as his exclusive wall, whereas in the Plaintiff''s sale deed, Ex.A1, it has not been stated that he is the exclusive owner of the southern wall. Taking into consideration all these aspects, both the courts below have rightly dismissed the suit holding that the Plaintiff has not proved her title to the suit property and therefore, he is not entitled to an order of injunction and the courts below have also rightly held that the suit wall is the exclusive property of the Defendant.

The findings given by the courts below are pure findings of fact and according to me, there is no question of law much less a substantial question of law arises in the second appeal. The substantial questions of law as framed by the Appellants, in my opinion, cannot be brought under the category of substantial questions of law as held by the Honourable Supreme Court in the judgment reported in Santhosh Hazari v. Pursushottam Tiwari (AIR 2001 SC 965).

According to the Honourable Supreme Court, to be a question of law involved in a case, there must be a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the courts of facts and it must be necessary to decide that question of law for just and proper decision of the case.

Further, as held in Shankareppa M. Mutanki Vs. B.M. Mutanki, , the High Court should not interfere with the findings of the courts below unless substantial question of law is involved therein.

Therefore, in view of the above judgments of the Honourable Supreme Court, it is clear that no substantial question of law arises in this second appeal and the substantial questions of law framed by the Appellant cannot be termed a substantial questions of law as per Section 100 of the Code of Civil Procedure. Hence, I do not find any merit in the second appeal and it is dismissed.

No costs.

The connected miscellaneous petition is also dismissed.