PHILIP Vs. ANNASWAMY IYER
HIGH COURT OF KERALA
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(1.) This is a Second Appeal by the defendant whose resistance to the plaintiffs suit proved unsuccessful in both the lower courts. The dispute between the parties relates to the right in respect of a wall standing between the properties owned by them. This wall is described in the B schedule attached to the plaint. The property described in the A schedule is the property to the plaintiff. The plaintiffs property is comprised in S.No. 977 while the defendants property is comprised in S. No. 976. According to the plaintiff the wall described in the B schedule is within S. No. 977. His complaint is that the defendant is unauthorisedly interfering with this wall by raising its height to suit his convenience in connection with the construction of the upper storey of his building situated in S. No. 976. Since the defendant was disregarding the protest made by the plaintiff and was bent upon proceeding with the work of raising the height of the wall the present suit was instituted for a declaration of the plaintiffs title to the wall and for an injunction to restrain the defendant from interfering with the wall in the manner already stated. Subsequent to the institution of the suit the defendant appears to have completed the work objected to by the plaintiff. Accordingly the plaint was amended by adding a prayer for a mandatory injunction to compel the defendant to remove the unauthorised construction over the wall in question. The defendant resisted the suit mainly on the plea that the site occupied by the wall was part of his own property comprised in S. No. 976 and that the plaintiff had no right to the wall. This contention was repelled by both the lower courts and it has been concurrently found that the wall in question is standing within the property comprised in S. No. 977, the title of which is with the plaintiff.
(2.) When this Second Appeal came up for hearing on a prior occasion this concurrent finding against the defendant appellant on the question of title to the property was not challenged. But the defendant took up the position that as per the terms of the agreement entered into between the original owners of the properties comprised in S.No. 977 and S. No. 976 from whom the plaintiff and the defendant have acquired their respective titles and which have been embodied in Ext. C the defendant has the right to put up the structure over the wall by raising its height to suit his own convenience. Since this question had not been separately considered by the Trial Court, a specific issue on this question was raised by this court and the case was remanded to the Trial Court for considering that issue and for recording a finding on that issue. That issue is to the following effect:-
Whether the defendant was entitled under Ext. C to raise the height of the wall and to use it to support the superstructure of his two-storied building.
On this issue the Trial Court found that the defendant is not entitled to raise the height of the wall and use it to support the super-structure of his two-storied building. The appellate court also concurred with this finding. The correctness of this finding has been challenged by the defendant appellant, when the Second Appeal came on for final hearing. In fact the only point that was pressed at that stage and which has to be decided in the Second Appeal is whether the Trial Courts finding on the additional issue is correct or not.
(3.) It is clear from Ext. C that the defendants predecessor-in-interest had sought for the permission of the plaintiffs predecessor-in-interest to put up a new wall on the northern portion of the latters property in place of a mud wall that was already in existence at that spot and that such permission had been granted as per the terms embodied in Ext.C. It was in token of the acceptance of those terms that the defendants predecessor gave the letter Ext.C to the plaintiffs predecessor-in-interest. Even in the opening clause in Ext.C an undertaking was made that the construction of the new wall will not be done in such a way as to cause any damage to the building that was already in existence in the southern property. In the penultimate clause in Ext. C there is an undertaking that at the place where the rafters of the building in the northern property meets the wall of the southern building the necessary cement works would be made to protect that wall against damage likely to be caused by the flow of water from the roof of the northern building. In the last clause of Ext. C it was stated that the owner of the southern property was at liberty to raise the roof of the western building in that property in a suitable manner and to have the rafters extending over the new wall. What is significant to note is that no such liberty was expressly reserved in Ext. C in favour of the defendant or his predecessor. Subject to the express reservation made in Ext. C it was mentioned in that document that the owner of the southern property had the liberty to make use of the new wall as he liked and to suit his convenience. Subsequent to the construction of the wall in pursuance of the authority derived under Ext. C the defendant is seen to have attempted to raise the level of the wall in connection with the construction of the upper storey of the building in his own property. The mahazar Ext. K prepared in this case clearly shows that the rights which had been reserved in favour of the owner of the southern property have all been violated by the manner in which the height of the wall was raised by the defendant. While raising the height of the wall a portion of the roof of the plaintiffs building had been tampered with and several tiles had been removed and the northern portion of the roof close to the wall that had been constructed as per the terms of Ext. C had been cut and removed to enable the raising of the height of the wall to suit the new venture embarked upon by the defendant. The description given in Ext. K about the new construction amply bears out the fact that the rights of the southern owner intended to be protected by the terms of Ext. C have all been tampered with. It is also clear that this was done not with the consent of the southern owner but against his will and in spite of the protest made by him.;
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