Ramalingam Pillai vs Ammani Ammal and Others

P.R. Shivakumar, J.—This second appeal is directed against the judgment and decree of the learned II Additional District Judge,

Tiruchirappalli, dated 20.07.1994 made in A.S. No. 296 of 1991 reversing the judgment and decree of the trial Court, namely Court of District

Munsif, Thuraiyur, dated 22.02.1991, in O.S. No. 222 of 1985.

One Narayanasamy Pillai, the deceased first plaintiff filed the Original suit on the file of the District Munsif, Thuraiyur for the relief of mandatory

injunction and damages. During the pendency of the suit, the said Narayanasamy Pillai died and hence the respondents 1 to 5 herein were

impleaded as plaintiffs 2 to 6 in the suit.

The suit was filed based on the contention that the suit property shown as ""A A1 A2 A3 C C1"" in the plaint plan was purchased by the

deceased first plaintiff, when the same was a thatched house, under a sale deed dated 16.11.1963; that the east-west measurement of the suit

property was 12 feet; that the appellant/defendant was the owner of the property lying on the west of the north south wall marked as ""AC"" in the

plaint plan; the said wall was initially claimed by the deceased first plaintiff in a former suit (O.S. No. 17 of 1977) to be a common wall belonging

to him and the appellant/defendant; that the said suit was dismissed upholding the contention of the appellant/ defendant that the said wall

exclusively belonged to him; and that however in the said former suit there was a clear admission made by the appellant/defendant that he had no

right over the property lying on the east of ''AC'' wall.

It was the further contention raised in the plaint that out of vendetta because of the former suit, the appellant/defendant demolished a portion of

the wall marked as ''AA1'' in the plaint plan to a width of 1 feet 6 inches in the east-west; that he also demolished the construction at point C1 and

removed the door and door frame fixed in between points C1 and A7 as per the plaint plan; that by the said high-handed act of the

appellant/defendant, the plaintiffs suffered a loss to the tune of Rs. 1,000/- and that hence the appellant/defendant should be directed to restore the

demolished wall and fix the wooden door frame and should also be directed to pay a compensation of Rs. 1,000/-.

The suit was resisted by the appellant/defendant by filing a written statement denying the plaint allegations regarding the alleged demolition made

and loss caused to the respondents/plaintiffs by the appellant/defendant. It was also contended therein that, after the deceased first plaintiff failed to

succeed in the former suit, namely O.S. No. 17 of 1977 in which the ''AC'' wall was claimed to be a common wall belonging to the

appellant/defendant and the deceased first plaintiff, he preferred an appeal and the same was also dismissed and that when the appellant/defendant

levied execution for recovery of cost awarded in the former suit, the deceased first plaintiff himself demolished a portion of the construction in his

house and filed the present suit at the instigation of his wife.

After framing necessary issues the suit was tried. One witness was examined as PW1 and 11 documents were marked as Ex.A1 to Ex.A12 on

the side of the respondents/plaintiffs. Two witnesses were examined as DW1 and DW2 and six documents were marked as Ex.B1 to Ex.B6 on

the side of the appellant/defendant. After considering the oral and documentary evidence in the light of the arguments advanced on either side, the

learned District Munsif, Thuraiyur came to the conclusion that the appellant/defendant had neither demolished any wall nor removed the door frame

as contended by the plaintiffs and that the demolition of the construction and the removal of the door frame were made by the deceased first

plaintiff. Arriving at the said conclusion, the learned District Munsif, Thuraiyur dismissed the suit with costs.

Aggrieved by the said judgment and decree of the trial Court dated 22.02.1991, the respondents/plaintiffs preferred an appeal on the file of the

learned II Additional District Judge, Tiruchirapalli in A.S. No. 296 of 1991. The learned II Additional District Judge, Tiruchirapalli allowed the

appeal, set aside the judgment and decree of the trial Court and decreed the suit as prayed for with costs by a judgement dated 20.07.1994.

Challenging the said judgement and decree of the learned II Additional District Judge, Tiruchirapalli, the present Second Appeal has been brought

forth by the appellant herein/defendant.

At the time of admission of the second appeal, the following substantial questions of law were framed;-

1) Is not the learned II Additional District Judge wrong in granting a decree for mandatory injunction as prayed for without even deciding the rights

and interests of both parties with reference to the disputed property?

2) Is not the learned II Additional District Judge wrong in reversing the judgment of the trial Court contrary to the principles laid down in Sarju

Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, ?

After hearing arguments, the following question has been framed as 3rd substantial question of law:

3) Whether the finding of the lower appellate Court regarding the plaint allegations that the wall was demolished and the door frame was removed

by the appellant/defendant on 02.06.1985 is perverse?

This Court heard the submissions made by the learned Counsel for the appellant as well as the respondents. The materials available on record

were also perused.

Advancing arguments on behalf of the appellant, Mr. T.R.Rajaraman, the learned Counsel for the appellant, submitted that a decree for

mandatory injunction has been granted as prayed for without even deciding the title of both the parties with reference to the disputed property; that

the lower appellate Court allowed the appeal and decreed the suit merely on surmises and conjectures, when the respondents/plaintiffs had not

even discharged their initial burden of proving the actual demolition of the structure by the appellant/defendant; that the lower appellate Court

committed an error in reversing the judgment of the trial court contrary to the principles laid down by the Honourable Supreme Court in Sarju

Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, ; that the learned II Additional District Judge should have drawn adverse inference

against the plaintiffs for non-examination of an important independent witness to prove their case; that the lower appellate Court committed an

error of law in rejecting the documentary evidence in Ex.B5 in the absence of any contrary evidence; that the learned lower appellate Judge

without appreciating the fact that the plaintiffs had not produced any evidence regarding the details of loss caused to them, directed payment of

compensation of Rs. 1,000/- on surmises; that the well considered judgment of the trial court should not have been disturbed and reversed by the

lower appellate Court; that viewed from any angle, it shall be patent that the lower appellate Court had given a perverse finding and that hence the

judgment and decree of the lower appellate Court should be set aside and the judgment and decree of the trial Court should be restored.

Per contra, the learned Counsel for the respondents contended that the lower appellate Court had assigned valid reasons for the conclusion

arrived at in the appeal; that the lower appellate Court being the final court of appeal on facts, was duty bound to re-apprise the evidence and in

fact it did so and only after doing so, it came to the conclusion that the demolition of the construction and removal of the door-frame were made by

the appellant herein/defendant as contended by the plaintiffs; that the said finding of fact by the lower appellate Court, by no stretch of imagination,

could be termed perverse and that hence, this Court could not interfere with the same in this second appeal.

The first and foremost contention of the appellant/defendant is that the prayer for mandatory injunction should not have been granted by the

lower appellate court for the restoration of the demolished wall and door-frame to their original position without even deciding the question of title

and right of parties regarding the land over which the wall and door-frame had been erected before their removal. Hence the first substantial

question of law has been framed. Even though, the appellant/defendant seems to have taken a stand that the respondents/plaintiffs were not entitled

to an east-west measurement of 12 feet on the east of ''AC'' wall exclusively belonging to the appellant/defendant, there is clear evidence to the

effect that the appellant/defendant had admitted in the former suit that he had no claim over the area lying on the east of ''AC'' wall. This has been

referred to in the judgement of the lower appellate Court. It is not the case of the appellant/ defendant that the wall allegedly demolished by the

appellant/defendant did not belong to respondents /plaintiffs. Question of title regarding the land on which such a wall had been erected before

demolition was not an issue raised in the suit. It is also not the case of the appellant/defendant that he removed the said wall because the same had

been put up by the respondents/plaintiffs over the property belonging to the appellant/defendant. Therefore, there was no occasion or necessity to

decide the question of title regarding the land over which the demolished wall had been erected. Further more, as pointed out supra, there is an

admission made by the appellant/defendant in the previous suit that he did not claim any right on the east of ''AC'' wall. Therefore, the challenge

made to the judgement of the lower appellate Court, based on which the above mentioned first substantial question of law has been framed, cannot

be countenanced. Accordingly, the said substantial question of law is answered against the appellant/defendant.

The learned Counsel for the appellant drew the attention of the Court to the observations made by the Honourable Supreme Court in Sarju

Pershad v. Jwaleswari AIR (1951) SCC 120 regarding the circumstances under which an appellate Court can interfere with the finding of the trial

Court, when the finding is based on oral evidence and there seems to be a conflict between the oral evidence of the parties. The following are the

observations made by the Honourable Supreme in the above said judgment:

The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in

the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses

before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the

appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is- and it is nothing more than a rule of practice-

that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then

unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient

balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial

Judge on a question of fact.

The Supreme Court also made the following observation:

Here was a case where the controversy related to a pure question of fact which had to be determined by weighing and appraising of conflicting

oral testimony adduced by the parties. It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the

witnesses, has an advantage which the appellate court does not possess. The High Court was wrong in thinking that it would detract from the value

to be attached to a trial Judge''s finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the

demeanour of witnesses. The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the

conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of

the court, outweighs such finding.

When the judgment of the lower appellate Court is considered in the light of the above said observations made by the Honourable Supreme

Court, it can be found that the lower appellate Court has not followed the law laid down in the above said judgment of the Honourable Supreme

Court. In fact, the learned lower appellate Judge has not assigned any valid reason for the rejection of the evidence of DW1 and DW2 and the

reasons assigned are not sound. Apart from the fact that the lower appellate Court has chosen to interfere with the finding of the fact recorded by

the Court below on appreciation of demeanour of witness. There are some materials in this case to improbablise the case of the

respondents/plaintiffs which the lower appellate Court had failed to consider.

It is the case of the respondents herein/plaintiff, that the appellant herein/defendant after the disposal of the former suit in O.S. No. 17 of 1977

and the appeal preferred therefrom in his favour, taking advantage of the same, demolished the construction and removed the door frame in the

portion of the respondents herein/plaintiffs as detailed in the plaint and the plaint plan. The plan annexed to the plaint has been marked on the side

of the plaintiff as Ex.A1. On the contrary, the appellant''s/defendant''s contention is that the deceased first plaintiff himself, at the instigation of his

wife who is the first respondent herein/second plaintiff, demolished the small structure and removed the door frame to trade a charge against the

appellant/defendant as if the demolition and removal of door frame were made by the appellant/defendant. This, according to the contention of the

appellant herein/defendant, was done when he took steps to levy execution for the recovery of costs awarded for him in the earlier suit as well as

the appeal preferred there from.

The present suit has been filed for a specific plea that a wall marked as ""AA1"" and a cross wall at point ""C"" had been in existence touching the

exclusive wall belonging to the appellant/defendant marked as ''AC'' in the plaint plan and that a portion of ""AA1"" wall and the cross (buttress) wall

at point ""C"" were demolished and the door frame that was in existence in between points C1 and A7 marked in the plaint plan was also removed

by the appellant/defendant. The said contention was stoutly denied by the appellant/defendant. Therefore, the burden of proving the plaint

allegations regarding the demolition of the said wall and removal of the door-frame lies heavily on the respondents/plaintiffs. In this regard, except

the interested testimony of PW1, the first respondent/second plaintiff - there is no other evidence adduced on the side of the respondents/plaintiffs.

As already pointed out, Ex.A1 is the plaint plan submitted by the deceased first plaintiff along with the plaint. Ex.A2 is the certified copy of the sale

deed under which the property of the plaintiff which lies on the east of the exclusive wall of appellant/defendant, (marked as ''AC'' in the plaint

plan) was purchased. Ex.A3 to Ex.A11 are documents relating to the former suit filed by the deceased first plaintiff claiming the above said ''AC''

wall to be the common wall of the deceased first plaintiff and the appellant/defendant. Admittedly, the said suit as well as the appeal filed thereon

ended in favour of the appellant herein/defendant and the ''AC'' wall was held to be exclusively belonging to the appellant/defendant. The

respondents/plaintiffs have produced Ex.A10 and Ex.A11 to show that the appellant herein/defendant did not claim any right on the east beyond

''AC'' wall in the said former suit. Of course, in the present suit, the appellant/defendant has also contended that as per the document by which the

vendor of the deceased first plaintiff purchased his property, he was entitled to an east-west measurement of 10 feet alone; that in Ex.A2-sale

deed, the said measurement has been wrongly noted as 12 feet and that taking advantage of the said wrong statement found in Ex.A2, the plaintiffs

were taking steps to claim more than what they were entitled to. The mere fact that the appellant herein/defendant has denied the entitlement of

plaintiffs to an east-west measurement of 12 feet will not be enough to come to a conclusion that the appellant herein/defendant should have

demolished the plaintiff''s wall in between ''AC'' wall and point C1 as per the plaint plan and removed the door-frame that was in existence

between the points C1 and A7. The appellant/defendant, besides denying the plaint allegations that he demolished the plaintiff''s wall and removed

the door-frame, has contended that the wall was actually removed by the deceased first plaintiff at the instigation of PW1/second plaintiff.

According to the specific case of respondents/ plaintiffs, the appellant/defendant demolished the wall and removed the door-frame on

02.06.1985. PW1 has not furnished the date on which the appellant/defendant allegedly demolished the wall ""AA1"" in the plaint plan and removed

the door- frame that existed in between the points C1 and A7. She would state that family members of one Muthu and another Kesavan Achari,

one Pappathi and another person Venkatesan (teacher) were the witnesses for the occurrence, in which the appellant/defendant demolished the

wall belonging to the respondents/plaintiffs. She has also admitted that there was no enmity or misunderstanding between the said persons and the

respondents/plaintiffs. However, the respondents/ plaintiffs have not chosen to examine any one of such witnesses. No reason whatsoever, has

been assigned for the non-examination of any one of such eye witnesses. On the other hand, the appellant/defendant has taken a definite stand that

the said portions of the wall was demolished and the door-frame was removed by the first plaintiff himself at the instigation of his wife

(PW1/second plaintiff) and out of ill will because the appellant/defendant levied execution for the collection of the cost awarded to him in the

previous suit and appeal and that the present suit was filed out of such ill-will for harassing him. He himself figured as DW1 and deposed in

conformity with the averments found in the written statement.

According to the case of the respondents/plaintiffs, soon after the demolition was made a complaint was lodged with the police and thereafter a

private complaint was preferred on the file of the jurisdictional Magistrate since the police did not take action. Admittedly, in the said complaint,

PW1 had alleged that the appellant/defendant demolished the wall on 02.06.1985 with the help of one Rengaraj, a mason by profession. No

person who is said to have seen the demolition was examined on the side of the respondents/plaintiffs. On the other hand, DW1 has stated that the

said Rengaraj is closely related to PW1 and that in relationship he is a brother to her. The said Rengaraj has been examined on the side of the

appellant/defendant as DW2. He has deposed in clear and unambiguous terms that demolition of the buttress wall was made by the deceased first

plaintiff himself. He has stoutly denied the contention of the respondents/plaintiffs that the said wall was demolished and removed by him on the

instructions of the appellant/defendant. The meticulous cross-examination made by the counsel for the respondents/plaintiffs did not yield any useful

result of eliciting any point favourable to the case of the respondents/plaintiffs. In addition to that, the defendant has also produced the judgment of

the criminal court in C.C. No. 3 of 1986 taken on file based on the private complaint of the first respondent/second plaintiff and marked it as

Ex.B5. It is noticed from Ex.B5 that the said complaint was ultimately dismissed and the appellant/ defendant as well as PW2 who were arraigned

as accused in the said criminal case were acquitted. As per the plaint allegations as well as the allegations made before the criminal Court, the act

of demolition of the wall and removal of the door-frame was committed on 02.06.1985. Ex.B1 is the certified copy of the decree in A.S. No. 309

of 1979. Ex.B2 is the copy of the complaint filed before the learned Judicial Magistrate No. II. Copy of the plaint in O.S. No. 17 of 1977,

certified copy of judgment in A.S. No. 305 of 1979, certified copy of the judgment in C.C. No. 3/1986 and certified copy of the suit register in

O.S. No. 17 of 1977 are marked as Ex.B3, Ex.B4, Ex.B5 and Ex.B6 respectively.

Admittedly, the former suit (O.S.17/1977) as well as the appeal preferred by the deceased first plaintiff were dismissed with costs. It has also

been admitted by PW1, that the appellant/defendant in the present case levied execution for the collection of the costs awarded in the former suit

and appeal. She would also state that her husband paid the costs and only thereafter the appellant/defendant demolished the wall and removed the

door-frame. According to her the demolition was made one or two months after payment of costs in the execution proceedings. The certified copy

of the suit register marked as Ex.B6 shows that execution petition for recovery of costs was filed in the year 1981 and on 12.01.1982 the

execution petition was terminated after recording full satisfaction. It is quite obvious from Ex.B6 that recovery of costs through execution Court

was made in January 1982. If the same is considered in conjunction with the evidence of PW1 that the alleged demolition was made by the

appellant/defendant within one or two months thereafter, the demolition as per the evidence of PW1 should have been made in the month of

February or March 1982. But the case put forward by the plaintiffs in the private complaint before the Magistrate and in the present suit is that the

alleged act of demolition of wall and removal of door-frame was committed by the appellant/defendant on 02.06.1985. The suit itself was filed on

11.06.1985. The same will show the unreliability of the above said evidence of PW1 apart from the falsify the case of the plaintiffs as found in the

plaint.

It is also obvious that the suit for mandatory injunction and damages has been filed in the Court after a lapse of three years from the date of

demolition and removal of door-frame. The above said admission of PW1 that the demolition of the wall and removal of door-frame were made

within one or two months after payment of costs in the former suit, will corroborate the evidence of DW1 and DW2 that the demolition of wall and

the removal of door-frame were made in the year 1982 itself and that the case was filed by the plaintiffs by citing an imaginary occurrence as if the

wall was demolished and door-frame was removed by the appellant/defendant on 02.06.1985. The learned trial Judge properly analysed all the

above said aspects and came to the correct conclusion that the plaintiffs failed to prove their case. The well considered finding of fact recorded by

the trial Court has been interfered with and reversed by the lower appellate Court not on legally acceptable grounds but on surmises and

extraneous considerations. A bare reading of the judgment of the appellate Court will show the perversity in-built in it. No valid reason has been

assigned by the lower appellate Court in not believing the evidence of witness examined on the side of the defendant, especially the independent

witness DW2, who is admittedly a relative to both the plaintiffs and the defendant.

The lower appellate Court has simply brushed aside the fact that except the interested testimony of PW1 which is also discrepant as pointed

out supra, no other reliable evidence has been adduced to prove the case of the respondents/plaintiffs that it was the appellant/defendant who

demolished the wall and removed the door-frame on 02.06.1985. There was no ground whatsoever, to interfere with the well considered finding

of the trial Court that the admission made by PW1 to the effect that the wall was demolished one or two months after payment of cost in the

former suit was made, in conjunction with Ex.B6, would clearly show that the wall and door-frame were not in existence beyond the month of

March 1982 and that the case of the plaintiffs as if they were in existence in the month of June 1985 and were removed by the appellant/defendant

on 02.06.1985 could not be countenanced. The lower appellate court seems to have wrongly applied the principle of law regarding burden of

proof and held that the defendant had not proved his case that the appellant/defendant was not entitled to an east-west measurement of 12 feet and

that since the appellant/defendant had contended that the plaintiffs were entitled to 10 feet alone, he could have demolished the wall and removed

the door-frame as claimed by the respondents/plaintiffs. The very approach made by the lower appellate court is erroneous and legally

unsustainable. The lower appellate Court seems to have given a finding against the appellant/defendant on mere surmises and conjectures without

there being any reliable evidence in support of such a conclusion. The learned lower appellate Judge seems to have forgotten the well established

principle of law that the plaintiffs have to win or lose according to the strength of their case and that they cannot succeed in their case pointing out

the weakness or loopholes found in the defence case of the defendant.

The lower appellate court has also chosen to award damages to a sum of Rs. 1,000/- to the respondents/plaintiffs as claimed by them in the plaint.

There is absence of clear cut evidence regarding the extent of damage caused. On the other hand, there is the clear evidence of DW1 that the wall

at C1 that was allegedly removed could be reconstructed at a cost of Rs. 100/- if the removed old bricks were used and that a cost of Rs. 200/-

alone would be incurred for such construction using new bricks. This aspect was not at all appreciated by the lower appellate court.

For all the reasons stated above, this Court hereby comes to the conclusion that the finding of fact regarding the allegation of the plaintiffs that

appellant/defendant demolished the wall and removed the door-frame on 02.06.1985 can be termed definitely perverse, as the same is not

supported by any evidence and no reasonable person would have come to such a conclusion on the basis of the evidence available on record.

When a finding of fact is perverse, the same will assume the character of a substantial question of law- based on which, this Court (second

appellate court) is perfectly entitled to interfere with the judgment of the lower appellate Court. Therefore the 2nd substantial question of law and

the 3rd (additional) substantial question of law framed in this second appeal are answered in favour of the appellant. Accordingly the finding of the

lower appellate court regarding the alleged demolition of wall and removal of door-frame by the appellant/defendant is hereby held perverse and

discrepant.

Viewed from any angle, the judgment of the lower appellate Court cannot be sustained. The same deserves to be set aside restoring the

judgement and decree of the trial Court. Accordingly, the second appeal succeeds. The judgment and decree of the lower appellate Court made in

A.S. No. 296 of 1991 dated 20.07.1994 are set aside and the judgment and decree of the trial Court made in O.S. No. 222 of 1985 dated

22.02.1991 are restored. The appellant shall be entitled to recover his cost of litigation throughout from the respondents.