Dr. Mythrayi and others v. Rajendran Nair and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934 ## **R.S.A.No.226 of 2005** ----------------------- [AGAINST THE DECREE AND JUDGMENT DATED 4.11.2003 IN A.S.35/2001 OF THE COURT OF THE SUBORDINATE JUDGE, THODUPUZHA] (O.S.No.159/1995 OF THE COURT OF THE MUNSIFF, THODUPUZHA). -------------------------- ## **APPELLANTS** /APPELLANTS/PLAINTIFF NO.2 & ADDL.PLAINTIFFS 3 TO 5:- - -------------------------------------------------------------------------------------------------------- 1. DR.MYTHRAYI, W/O.LATE C.S.RAVEENDRAN, VRINDAVAN HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE. 2. R. PRIYA LAKSHMI, D/O. LATE C.S. RAVEENDRAN, - VRINDAVAN HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE. 3. PRAMOD. R., S/O. LATE C.S. RAVEENDRAN, VRINDAVAN HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE. 4. MRS.LAKSHMIKUTTIYAMMA, MOTHER OF LATE C.S. RAVEENDRAN, VRINDAVAN HOUSE, THODUPUZHA HARA, THODUPUZHA VILLAGE. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.T.I.ABDUL SALAM SRI.C.K.VIDYASAGAR ## **RESPONDENTS/** RESPONDENTS/DEFENDANTS:- ---------------------------------------------------------------------- 1. RAJENDRAN NAIR - USHUS, THODUPUZHA KARA, THODUPUZHA VILLAGE. 2. RAJASEKHARAN NAIR, - USHUS, THODUPUZHA KARA, THODUPUZHA VILLAGE. 3. USHA DEVI, W/O. RAJENDRAN, - THODUPUZHA KARA, THODUPUZHA VILLAGE. BY ADVS. SRI.R.T.PRADEEP SRI.K.SUNILKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON 13-09-2012 DELIVERED THE FOLLOWING:- ## K. Vinod Chandran, J - - - - - - - - - - - -- - - - - - - - - - - R.S.A.No.226 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of September, 2012 ## JUDGMENT Neighbours, up in arms against each other, are the parties to the above appeal. The dispute is with respect to the raising of a compound wall, obviously due to relationships falling sour. Almost two decades since the dispute arose and one of the parties having disappeared beyond the veil of time; settlement is nowhere in sight. Mediation, attempted even before litigation commenced, had failed. Introspection often is the best form of mediation. This Court would exhort the parties to make such introspection and draw upon the well of consideration to one's fellow beings and reach out to each other so as to pull down the fences erected in their minds and if they do so; to read no further. 2. The proceedings before the trial Court were initiated by the 1[st] appellant and her deceased husband as plaintiffs 1 and 2. The defendants - husband, wife and the father of the wife - are neighbours on the northern side of the plaintiffs' residential property. The entire northern boundary of the plaintiffs is bounded by a compound wall, having a height of 4.5 feet to the western side and 3.5 to the eastern side. The plaintiffs, for alleged reason of preventing theft and pet dogs R.S.A.No.226 of 2005 - 2 - jumping over the wall; attempted to raise the height of the wall by building on it with bricks and then erecting grills over it, on their side. Allegedly this was done with the permission of the defendants, which permission was obtained in the course of mediation. On the defendants obstructing the construction being carried on, the plaintiffs approached the Munsiff's Court, Thodupuzha with the suit for declaration and perpetual injunction. 3. The plaint 'A' schedule property, wherein the plaintiffs were residing, was purchased by three documents, Exhibits A1 to A3, respectively having an extent of 16, 3 and 4 cents lying contiguously from east to west. The northern compound wall, having a total length of 167 feet, was more fully described in the plaint as 'B' and 'C' schedules. The western portion having a length of 55 feet was described as plaint 'B' schedule and eastern portion having length of 112 feet was described as plaint 'C' schedule. The declaration sought for in the plaint is as to the title over plaint 'B' schedule being the granite foundation and wall on the western portion and over the granite foundation of plaint 'C' schedule wall. Injunction was sought, to restrain the defendants from causing any obstruction to the raising of the wall as also to restrain them from carrying out any construction on the southern side of plaint 'C' R.S.A.No.226 of 2005 - 3 - schedule, i.e., on the defendants' side of the wall. 4. The defendants appeared and filed Written Statement, raising counter claim. The defendants contended that the granite foundation and the laterite compound wall on their southern boundary, was constructed by the 1[st] defendant and the predecessor-in-interest of the plaintiffs, in the year 1985 by sharing the expenditure. The granite foundation of the said wall was constructed on both the properties taking 9 inch width from each of the properties. The plaintiffs had absolutely no right to put up any structure on the compound wall and the concrete structures erected thereon and iron grills installed over it hamper free passage of light and air to the ground floor of the defendants' residential building. This is so, since the defendants' property is at a lower level than the plaintiffs' property. The defendants in their counter claim sought for a declaration that the 1[st] defendant and the plaintiffs are tenants-in-common with respect to plaint 'B' and 'C' schedule compound walls and their granite foundations. The defendants also sought for a mandatory injunction to remove the structures constructed on the plaint 'C' schedule compound wall beyond the height of 5 layers of laterite stones from beneath and to restore it to its original condition. The defendants also sought for a perpetual R.S.A.No.226 of 2005 - 4 - injunction from causing any alteration to plaint 'B' and 'C' schedule compound wall without consent from the 1[st] defendant in writing. 5. During the pendency of the suit the 1[st] plaintiff having expired, the legal heirs were impleaded. The parties went to trial on the above pleadings. The trial Court considered the issues of ownership of plaint 'B' and 'C' schedules and the entitlement for declaration and injunction of both parties, as prayed for in the plaint and counter claim, together. The declaration of title sought for by the plaintiffs was declined. The declaration sought for in the counter claim was granted, declaring the plaintiffs and defendants to be tenants-in-common of the compound wall. The trial Court granted the injunction sought for by the plaintiffs from obstructing the raising of the wall by the plaintiffs. No finding was entered with respect to the injunction sought against the defendants from making construction on the southern side of plaint 'C' schedule. The plaintiffs are seen to have never raised the issue later too. The mandatory injunction sought for by the defendants was declined. 6. The plaintiffs and defendants were before the first appellate Court in three separate appeals. A.S.No.35 of 2001 was filed by the plaintiffs against the denial of their prayer for declaration as sought for in the plaint. A.S.No.72 of 2000 was filed by the R.S.A.No.226 of 2005 - 5 - defendants against the order of injunction restraining them from causing any obstruction to the raising of plaint 'B' schedule wall. A.S.No.72 of 2001 was also filed by the defendants against the denial of mandatory injunction sought for by the defendants in their counter claim. The appeals were heard together by the first appellate Court. The first appellate Court while confirming the declaration that the plaintiffs and defendants are tenants-in-common of the compound wall, issued a mandatory injunction directing that the plaint 'C' schedule wall on the south of the residential building of the defendants will be restored as it was originally constructed and _status-quo ante_ maintained. The mandatory injunction sought for with respect to pulling down the construction made by the plaintiffs on the balance portion of the wall, i.e., except with respect to the wall running parallel to the residential building of the defendants, was declined. The injunction granted against the defendants restraining them from obstructing the constructions on the wall by the plaintiffs, necessarily, was also modified only with respect to the extent to which mandatory injunction was granted. The defendants rested contend; the plaintiffs are in second appeal, assailing the orders of the first appellate Court raising various questions of law in the memorandum of appeal. A learned Single Judge of this Court, while R.S.A.No.226 of 2005 - 6 - admitting the Second Appeal, issued notice on the following questions of law for consideration and decision: - i) Have the courts below acted in accordance with law in appreciating the evidence on record? ii) What is the right, if any, in law of the plaintiff over the wall in question? Needless to say, the questions of law in the above Second Appeal is confined to that on which notice has been issued by this Court. 7. I have heard Sri.S.V.Balakrishna Iyer, Senior Counsel, for the appellants and Sri.R.T.Pradeep, appearing for the respondents. 8. The learned Senior Counsel would painstakingly take me through the schedules of Exhibits A1 to A3 and A6. It is the contention of the appellants that though Exhibit A1 specifically spoke of one-half of the share over the compound wall, the schedules in Exhibits A2 and A3 show the rights of the entire wall being conveyed to the plaintiffs. It is in the context of the one-half share specified in Exhibit A1, it is submitted, that, while the plaintiffs claimed declaration of title over the granite foundation and wall shown as plaint 'B' schedule, declaration was sought for only in respect of the granite foundation of the wall described in plaint 'C' schedule. No declaration was sought for with respect to the wall over plaint 'C' schedule in view R.S.A.No.226 of 2005 - 7 - of the specific terms in Exhibit A1. The mere fact that Exhibit A1 specifically conveys only one-half rights over the wall cannot lead to a conclusion that the plaintiffs had only one-half rights over the entire wall comprised in plaint 'B' and 'C' schedule compound walls. The learned Senior Counsel would rely on the decisions reported in _**S.B.Kapadia v. N.B.Kapadia**_ , AIR 1967 Gujarat 87, and _**Sardari Lal Gupta v. Siri Krishan Aggarwal**_ , AIR 1984 P&H 439, to contend that even if the parties are tenants-in-common as found by the lower appellate Court, the defendants cannot obstruct the raising of the wall as long as no damage is caused to the defendants. 9. The learned counsel for the respondents, per contra, would rely on the decision of this Court in _**Ambujakshi Amma v. Gopi,**_ 1990(1) KLT 184, to contend that when there is a common wall between the neighbours of two properties, a co-owner cannot assert exclusive right over the compound wall and any encroachment or infringement on the other owner's right would entitle the other owner to seek restitution of the compound wall to its original position by mandatory injunction. Exhibit A1 having specifically conveyed only one-half right and the wall on the northern boundary of the entire plaint 'A' schedule property having been constructed prior to the purchase by the plaintiffs, that too by the 1[st] defendant and the R.S.A.No.226 of 2005 - 8 - predecessor in interest of the plaintiffs, the plaintiffs cannot claim any exclusive right over the wall. 10. The trial Court found that when the plaintiffs purchased the plaint 'A' schedule property as per Exhibits A1 to A3 sale deeds, compound wall on their northern boundary was in existence. Exhibits A1 to A3 though in their respective schedules contained specific mention of the wall on the northern boundary; it does not speak about the foundation at all. Exhibits A1 to A3, as noticed above, are respectively sale deeds conveying title over 16, 3 and 4 cents of property, together comprising plaint 'A' schedule. The trial Court noticed that Exhibit A1 title deed with respect to 16 cents of property specifically conveyed only one-half right over the compound wall. At the instance of the plaintiffs, Commission was taken out and the Advocate Commissioner filed Exhibit C2 Commission Report and Exhibit C2(a) survey plan. Considering the discrepancy in the actual area of the property located in Exhibit C2(a) plan and what is recorded in the Commissioner's report, the trial Court found that the northern boundary of plaint 'A' schedule property is not as shown in Exhibit C2(a) plan. This fact was held to shake the foundations of the case set up by the plaintiffs and relying on the recital in Exhibit A1 deed regarding one-half interest in the compound R.S.A.No.226 of 2005 - 9 - wall, the contention of the defendants in the counter claim was upheld. The plaintiffs and defendants were declared as tenants-in-common. However, finding that no injury or damage is caused to the defendants by raising of the compound wall, mandatory injunction sought for by the defendants was refused. The plaintiffs were granted a perpetual injunction against the defendants from causing any obstruction in making construction on the plaint 'B' and 'C' schedules. The suit, hence, was decreed in part. 11. The first appellate Court considered the three appeals together. The first appellate Court also relied on Exhibit A6 document by which one M.N.Narendranathan sold, 11 cents of property coming within the 16 cents, to the plaintiffs. The first appellate Court found that though the said document shows that the predecessor in interest of the plaintiffs had absolute right on the northern wall, what was conveyed by Exhibit A1 was only one-half rights over the said wall. The vendor in Exhibit A6 document also was examined as D.W.3 and his evidence was to the effect that the compound wall on the northern boundary was constructed jointly by him and the 1[st] defendant and that the foundation was built on the land belonging to both parties. The Court relied on the evidence of D.W.3, fully corroborating the evidence of D.W.1, the 2[nd] defendant; the father-in-law of the 1[st] R.S.A.No.226 of 2005 - 10 - defendant **,** who was managing the property when the 1[st] defendant was working abroad. The first appellate Court found that the action of the trial Court in discarding the evidence of P.W.3, who is said to have led a mediation, and placing reliance on the evidence of D.W.1 and D.W.3 was perfectly legal. The evidence of D.W.1 and D.W.3 also was in consonance with the recitals in Exhibit A6 and Exhibit A1. 12. The reliance placed by the plaintiffs on the Commission Report also was rejected in view of the oral testimony of D.W.4, the Surveyor, and the lack of necessary details in the report to find out the actual extent of the property. On the above findings, it was held that the trial Court was right in holding that the parties are tenants-in-common of the compound wall on the northern boundary of plaint 'A' schedule property and that the said wall is a party-wall. The Commission Report showed that height of plaint 'B' schedule wall was raised by placing 1 to 5 rows of laterite stones and that the plaint 'C' schedule wall was raised by 4 rows of laterite stones. Concrete beams were found to have been erected touching the southern side of the plaint 'C' schedule wall and iron grills were found fixed on the said beams. The additional construction made by the plaintiffs as revealed in the Commission Report was not disputed by either parties. On a consideration of the totality of the circumstances, R.S.A.No.226 of 2005 - 11 - including Exhibit A5 photographs, the first appellate Court found that one of the parties had every right to build on the compound wall, provided it does not cause any detriment or damage to the other. Considering the grievance of the defendants as also the fact that the defendants' land lies at a lower level, it was found that the said grievance of the defendants can be redressed if the constructions made over the plaint 'C' schedule wall running parallel to the residential building of the defendants are restored to the previous position. To that extent, _status-quo ante_ was directed and mandatory injunction issued for restoration of the said wall by pulling down any additional constructions made by the plaintiffs. The plaintiffs' rights with respect to raising of the wall in the balance portion remained confirmed. As noticed above, the defendants have not filed any appeal from the order of the first appellate Court. 13. Exhibits A1 to A3, as noticed by the trial Court, were the documents by which plaint 'A' schedule property came into the ownership and possession of the plaintiffs. The existence of the wall on the northern boundary even before the plaint 'A' schedule property coming to the possession of the plaintiffs is not disputed. Whether by Exhibits A2 and A3 the plaintiffs obtained exclusive rights over the wall is the specific question agitated herein based on the specific R.S.A.No.226 of 2005 - 12 - recitals in Exhibits A2 and A3. 14. Exhibit A6 is a sale deed by which one Neelakanta Raju acquired 11 cents of property from D.W.3. The recitals of the document would show that when the said property was sold, there was a partially constructed building in the said property. This is in consonance with the evidence of D.W.1 and D.W.3. D.W.3, the vendor in Exhibit A6 document, would also speak of construction of the wall in the boundary of the common property of D.W.3 and the 1[st] defendant as also the sharing of expenses for such construction. Exhibit A1 is a sale deed executed by Neelakanta Raju, the vendee in Exhibit A6, to the plaintiffs. Exhibit A1 conveys 16 cents of property on the eastern side of plaint 'A' schedule property as against 11 cents conveyed by Exhibit A6. How the 5 cents came into the possession of Neelakanta Raju remains in the dark and the plaintiffs have set up no case with respect to that. Evidently, the entire 16 cents conveyed by Exhibit A1 was bounded on the north by a wall and only one-half share of such compound wall was conveyed by Exhibit A1 document. Though the wall on the northern boundary of plaint 'A' schedule property has been described in two different schedules and described as being constructed with separate heights, there is nothing to show that it does not lie as a single wall, going through the R.S.A.No.226 of 2005 - 13 - entire northern boundary of the plaint 'A' schedule property. 15. Exhibits A2 and A3 are executed by one P.V.Narayanan Nair and cover 4 cents and 3 cents respectively, as is noticed above. The contention of the learned Senior Counsel, on behalf of the appellants, is that the schedule in Exhibits A2 and A3 specifically speak of exclusive right over the northern boundary wall conveyed to the plaintiffs. Again, the prior deeds have not been produced. It is evident that the said Narayanan Nair acquired the said properties by purchase in the year 1985. The said Narayanan Nair, as can be discerned from the various documents, is the father of Neelakanta Raju, who executed Exhibit A1 document. The plaintiffs do not make any attempt to trace the title of properties covered by Exhibits A2 and A3 to the predecessor in interest of Narayanan Nair or identify the properties covered by Exhibits A1, A2 and A3 separately. This exercise, if done, would have helped the Court in finding out the extent of the walls abutting each of the said properties and also arrive at some conclusion as to when the wall was built. But for projecting a division of the property as 16, 4 and 3 cents, the plaintiffs have made no attempt to demarcate the same or to identify the extent of the wall on the northern boundary on each of the properties conveyed by Exhibits A1 to A3. Plaint 'B' and 'C' schedules R.S.A.No.226 of 2005 - 14 - also have not been identified with reference to the properties covered by Exhibits A1 to A3. In such circumstances, it cannot at all be said that the Courts below have not appreciated the evidence on record in accordance with law. The finding of the Courts below regarding the plaintiffs and the defendants being tenants-in-common of the compound wall in the northern boundary of plaint 'A' schedule property is one which emanates from the evidence on record. The finding of the trial Court, as confirmed by the first appellate Court, for reason of it being one on facts and also for reason of the said finding being one arrived at on a proper appreciation of evidence, cannot at all be interfered with and it has to be held that the right of the plaintiffs over the wall is confined to that declared by the trial Court and confirmed in first appeal. 16. The next issue would be regarding the mandatory injunction granted by the first appellate Court, reversing and modifying the total refusal of the relief by the trial Court. The learned Senior Counsel would place heavy reliance on the decisions in _**S.B.Kapadia's case**_ **(** _supra_ **)** and _**Sardari Lal Gupta's case**_ **(** _supra_ **)** to contend that there can be no question of acquiring easement of light and air over property jointly owned by person with others. _**S.B.Kapadia's case**_ ( _supra_ ) was one in which the defendant had R.S.A.No.226 of 2005 - 15 - attempted to put up a slab on his side of party-wall by inserting a bar of 4 inches within a length of 15-16 feet on the wall. The parties to the said case were siblings and the property held by their father was partitioned among them and other children. The party-wall separating the houses of the plaintiff and the defendant were also in existence from the time of their father. The Gujarat High Court in the said case held that where one of the owners of a party-wall in constructing his house inserts beams and pillars into his side of the wall, the other owner has a right to complaint only if the alleged acts amount to his ouster or to a destruction of the party-wall. It was also clearly observed that in the said case since there is no question of raising any party-wall and all that the defendant intended to do is to put up a slab in the wall, there is no question of any ouster or interference with the enjoyment of the said wall by the other side. It was only in that context and also specifically noticing that it was not an insistence of raising the party-wall that the Court found that no consent of the co-owner/tenant in common is required in the said case. The plaintiff had also taken up a contention that in the suit wall, there was an opening now belonging to the defendant, which the defendant intended to close, by putting up a new construction. This in effect was the nature of easement right sought to be enforced in the said case. R.S.A.No.226 of 2005 - 16 - It was held that the question of right of easement does not arise in respect of the door or opening in the particular wall, since both the properties belonged to one person originally, i.e., the father of the parties. It was in the context of the facts available that the claim was rejected by the Court. 17. In _**Sardari Lal Gupta's case**_ ( _supra_ ), the plaintiff had party-walls adjoining three houses on the three sides of his house. The defendant having attempted to make a construction on his side of the wall, the suit was filed _inter alia_ on the allegation that a ventilator in the said wall was attempted to be closed, thus blocking air passage through the said ventilator. The Division Bench of the Punjab & Haryana High Court considered the law as it existed in India and as it existed in England and drew a distinction in so far as the English law permitted one of the co-owners of a party-wall to remove any obstruction caused by another. In India, it was held, it was never intended that if a person is deprived of his right of property he should take law into his hands to redress his grievance. An individual if he could redress his grievance by his own act, definitely the Court could also get the same redressed. The finding of fact that the wall was a party-wall was not disturbed by the High Court. However, the contention that the ventilator shall not be closed was R.S.A.No.226 of 2005 - 17 - not accepted on the premise that the party-wall was ordinarily a solid wall throughout its entire extent and the co-owners of the wall does not have a right to open ventilators or windows or other openings in it except by an agreement with the other owner or under a statutory provision. 18. I am afraid, both the decisions do not apply to the facts of this case. In fact in _**Sardari Lal Gupta's case**_ ( _supra_ ), it was clearly held that the raising of the party-wall and using it by the co-owner without the consent of the other owner is permissible only if the respondent does not suffer any damage. The right to easement of light and air claimed by the plaintiff through the ventilator in the common wall was declined because ordinarily the wall did not contemplate a ventilator and there was no right to open ventilators or provide air passage through the wall, established in evidence in the said case. Moreover, in the said case what weighed with the Court was the fact that the defendant in the suit, though making a construction on the party wall, did not at all dispute the tenancy in common and conceded that whatever built upon the wall would belong to both parties. It was also the specific case of the defendant that no damage would be caused to the plaintiff and the nature and character of the wall remains the same. In the instant case, the R.S.A.No.226 of 2005 - 18 - plaintiffs claim the wall for themselves. The specific case set up by the plaintiffs is the ouster of the defendants even with respect to the original construction and also that subsequently made over the wall. _**S.B.Kapadia's case**_ ( _supra_ ) is also, as noticed above, distinguishable. This Court is of the opinion that the dictum laid down _**Ambujakshi Amma**_ ( _supra_ ) is more apposite to the facts of the above case. Even before the plaintiffs came into possession of the plaint 'A' schedule property, the wall was built by the then adjacent property owners over their common boundary taking land from each of their lands and also sharing the expenses. As noticed above, the plaintiffs have miserably failed to prove the absolute title to plaint 'B' and 'C' schedule properties. The party-wall is one in which the plaintiffs and defendants are tenants-in-common. The concurrent finding of fact by the Courts below cannot be interfered with as found above in second appeal. Looking at the evidence recorded before the trial Court, the grant of the prayer of mandatory injunction to the extent granted by the first appellate Court is perfectly in order. There is no justification for this Court to interfere with the same. It is to be noticed that it was on a consideration of the entire set of facts, the lie of the property and the fact that the defendants' residential building is situated at a lower level; that, the first appellate Court directed R.S.A.No.226 of 2005 - 19 - restoration of the wall and removal of any construction made over it; that too only over the length of the wall running parallel to the residential building of the defendants. Again the finding is one arrived at, after a proper appreciation of the evidence on record. The injury caused to the defendants was properly appreciated by the first appellate Court and restoration of the original height of the wall, as directed is necessary on facts, to redress the grievance of the defendants. The mandatory injunction granted by the first appellate Court modifying the decree and judgment of the trial Court also, hence, is not liable to be interfered with. In view of the findings rendered above and the questions of law framed by this Court being answered against the appellants and in favour of the respondents, the above Second Appeal has to be dismissed and I do so, with costs. Sd/- K. Vinod Chandran, Judge vku/- (true copy)