High Court · 2025

S.A.No.1212 of 2012IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.04.2025CORAM:THE HONOURABLE MRS. JUSTICE R.KALAIMATHIS.A.No.1212 of 2012and M.P.No.1 of 2012 ... Appellant/ DefendantA.PonnusamyVs.A.Kulandaivelu ... Respondent/PlaintiffPRAYER: This Second Appeal is filed under Section 100 of C.P.C.against the Judgment and Decree dated 25.08.2012 in A.S.No.21 of 2011 passed by the Subordinate Court, Rasipuram by confirming the Judgment and Decree dated 27.04.2011 in O.S.No.60 of 2009 on the file of the District Munsifr Court, Rasipuram.For Appellant : Mr.P.Valliyappan Senior Counsel for M/s.SMS.Sriram NarayananFor Respondent : Mr.C.Jagdish JUDGMENTThis Second Appeal has been preferred by the defendant against the Judgment and Decree dated 25.08.2012 passed by the Sub Court, Rasipuram in A.S.No.21 of 2011 against his elder brother A.Kulandaivelu. Page 1 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 2012 2. The parties are indicated herein as per their litigative status and ranking before the Trial Court.3. According to the plaintiff, suit property is belonging to the plaintiff as per Partition Deed dated 02.05.1983. The plaintiff has been in possession and enjoyment of the suit property without any interference. The suit property is a tiled house with mud wall and roof are put up by country wood and country tiles measuring about 30 sq.mt, situated in S.Nos.16/1B1/ Door No.14/129A, Service Connection No.298. The defendant is his own brother. The plaintiff has been residing in the suit property ( house) . He has also been paying house tax for the suit property. 3.1. When he was attending to the maintenance work of southern and eastern side wall of the suit property on 27.05.2009, at about 8.30 a.m, the plaintiff and his men were prevented from attending to the maintenance work and the construction materials were damaged. Hence, the suit is filed for the relief of permanent injunction not interfere with. 4. After the partition is effected, survey number of the plaintiff's property is S.No.16/1B1 and defendant's property is S.No.16/1B2 Common Wall is Page 2 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 2012situated in S.No.16/1B1. In the patta granted to the plaintiff, the defendant's name is also mentioned. 5. Contending contra, the defendant has averred that the plaintiff has demolished the old tiled house and they have jointly constructed the house 60 years ago up on the suit property. As constructed his house without leaving any set back and within the 'athu' he has raised the wall in the eastern and southern side to the height of 15 ft ( wall with cement mortar), he constructed his house. For maintenance of southern wall, the plaintiff has to climb upon the roof of plaintiff's tiled house and effected repair or whitewash work of the wall. There is no easmentary right granted to the plaintiff to undertake the aforesaid work. If the plaintiff or his men are permitted to climb upon his tile, roof, there is a possibility of all the tiles put upon the house would break and would damaged get . The roof and the rafters are in damaged condition and it is about to fall down.6. Based on the divergent pleadings, the trial Court framed the following issues:-i)Whether the contention of the plaintiff that the defendant prevented the plaintiff from maintaining the suit wall is correct?ii)Whether the plaintiff is entitled to the relief of permanent injunction?Page 3 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 2012iii)To what other relief, the plaintiff is entitled to ?7. During trial, to substantiate the plaint details, on the plaintiff's side, two witnesses were examined and five documents were marked. On the side of the defendant, 1st defendant was examined as D.W.1 and one Tr.K.Rajendran was examined as DW2 and two documents were marked.8. Upon consideration of the oral and documentary evidence of both sides and after hearing the arguments advanced by either side, the trial Court decreed the suit in favour of the plaintiff on certain conditions.9. Aggrieved by the same, the defendant had preferred appeal in A.S.No.21 of 2011 before the Subordinate Court, Rasipuram. Upon consideration of the Trial Court records and after hearing the arguments of both sides, Appeal Suit was dismissed with additional condition to the effect that if any damage is caused to the defendant's property despite due care and caution, the same has to be rectified by the plaintiff at his own cost.10. On perusal of the records, it would explicate that the plaintiff and the defendant are brothers. The fact that the family properties were partitioned as per the Partition Deed dated 02.05.1983 and 'C' schedule property fell to the Page 4 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 2012share of the plaintiff and “B” schedule property fell to the share of the defendant is not in dispute.11. The defendant's strong contention is that his house and the southern side wall of the plaintiff's house are situated contiguously without any gap and the plaintiff had raised his southern side wall to a further height of 5 ft. in order to carry out the repairs, the plaintiff has to climb on the tiled roof of the defendant's house, he is permitted so, then there is possibility of total damage to the roof and rafters of the defendant and he will be put to great hardship.12. The Advocate Commissioner was appointed and he has filed his report with plan. Ex.A1 is the Partition Deed dated 02.05.1983. As per the report of the Advocate Commissioner, the house of the plaintiff and defendant are situated contiguously on the land. Both the parties were allotted plot with the house to an extent of 30 sq.mt.13. It is very strong contention of the defendant that the plaintiff has raised wall on the eastern side of the suit property to the height of 15 ft. as per the Commissioner's Report and Sketch. It is pellucid that the plaintiff has constructed a new wall over and above the existing mud wall. The plaintiff has converted his tiled house with RCC roof into building. The southern side Page 5 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 2012outer wall portion of the wall remains unplastered. Therefore, contention of the defendant that he had been obstructed by the plaintiff, while renovating the suit wall is totally incorrect.14. On perusal of the Partition Deed– Ex.A1 dated 02.05.1983, the right perfected on the plaintiff is very well found in Ex.A-1 Partition deed. The relevant portion of the said partition deed – Ex.A1 dated 02.05.1983 reads as follows:- rp ghfj;jpy; cs;s tPl;il kuhkj;J bra;a[k; fhyj;jpy;“” 4-k; yf;fkpl;l gp ghf!;jhpd; ghfj;jpd; gpghf!;jUf;F“”“” gphpe;Js;s tPl;od; gf;;fkhf te;J nkw;go rp ghf!;jh;“” tPl;il kuhkj;J bra;J bfhs;s 5-k;; yf;fkpl;ltUf;F chpik cz;L/ ,ij 4-k;; ,yf;fkpl;lth; ve;jtpj Kfhe;jpuj;ija[k; bfhz;L ve;j Ml;nrgiza[k; jila[k; bra;af;TlhJ/”15. In Ex.A1 – Partition Deed, 'B' and 'C' schedule are allotted to the defendant and the plaintiff respectively. As per the clause found in Ex.A.1 - Partition Deed, the plaintiff has given the absolute right of maintenance and repair by entering through the defendant's house also and the defendant on any circumstances is not permitted to raise objection against the plaintiff.Page 6 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 201216. As the plaintiff has further constructed wall on the southern side wall over and above exceeding mud wall there is no possibility for him to leave any space for maintenance and repair work of his southern side wall. It cannot be denied that while carrying out the maintenance work, the suit wall will have necessarily, the plaintiff or his men have to climb over roof of the defendant's tiled house. The said details have been thoroughly gone into by the First Appellate Court and while confirming the Judgment of the trial Court, the First Appellate Court has imposed further conditions to the plaintiff that if any damage is caused to the plaintiff's house he has to compensate it. Therefore, the trial Court has itself considered the objection of the defendant's and decreed the suit with conditions. The First Appellate Court has also dealt with these aspects and imposed the other conditions to the plaintiff and dismissed the appeal preferred by the defendant.17. This Court does not find any valid reason to upset the findings of the First Appellate Court and this Court also does not find any infirmity or perversity in the findings of the First Appellate Court.18. In such view of the matter, no substantial questions of law arise for consideration. Based on the aforesaid observations and discussions, this Page 7 of 8 https://www.mhc.tn.gov.in/judis S.A.No.1212 of 2012R.KALAIMATHI,J.kkdsecond appeal stands dismissed. Sequel to this, the Judgment and decree granted by the First Appellate Court in A.S.No.21 of 2011 dated 25.08.2012 stands confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.24.04.2025Internet:YesIndex:Yes/NoSpeaking/Non speaking orderkkdTo1. The Subordinate Court, Rasipuram 2. The District Munsif Court, Rasipuram.S.A.No.1212 of 2012Page 8 of 8