V R VARADARAJULU CHETTIAR Vs. MUTHUKANNU AMMAL

JUDGEMENT

(1.) THE plaintiff who has lost in both the courts below in the suit filed by him for a declaration that a strip of land should be kept vacant as a common lane for repairs and for consequential relief of mandatory injunction for the removal of a staircase which had been built thereon and of a trough, some iron hooks, etc, is the appellant in this second appeal. There was also a prayer for a declaration of the plaintiff's ownership of a wall shown as A B C in the plaint plan. So far as the ownership of the wall is concerned, there was no serious contest about it and the courts below have upheld the plaintiff's claim in respect of the wall. This second appeal relates only to the other reliefs claimed by the plaintiff with reference to rights over the site A B C, C1, B1, A1 in the plaint plan.

(2.) A perusal of the judgment of the courts below shows that the plaintiff has put forward a case for reliefs to a larger extent than the easements rights he may be legally entitled to and appears to have asserted more or less a claim of ownership in the site in question. This has been negatived by the courts below. The structures in question have been found to be existing for over 15 to 20 years. A wall B B1 was contended to be an encroachment and certain iron hooks and wooden releases were urged to be hindrances to the enjoyment of the site as a common lane. Relief for the removal of all these things was refused by the courts below and learned counsel for the appellant has not been able to make out a case for differing from the conclusions of the courts below in regard to these.

(3.) THE plaintiff had purchased the property shown as A C D E F H in the plan under Ex. A-1 on 15-9-1936. By Ex. A-2 dated 1-10-1936 he sold the eastern portion of this property demarcated as A C F H to Ponnammal, predecessor in title of the defendants. A reference to Exs. A-1 and A-2 shows that there is a provision for retaining an extent of property about 1 1/2 ft. wide on the southern side of A. C. FH of the length of 16 ft. north to south, that is, the strip marked A B C C1, B1, A1 in the plaint plan as a vacant site for purposes of carrying out repairs to the property south and west of the property conveyed under Ex. A-2. Subsequent to the sale under Ex. A-2, whereby the provision was shown for retaining this strip as a vacant site for carrying out repairs to the adjoining property, there was a suit o. S. 711 of 1937 on the file of the District Munsif, Tiruchirapalli between plaintiff and Ponnammal, the vendee under Ex. A-2. That suit was compromised and a perusal of the compromise decree shows that the rights provided for access over the site A A1 C1 C for repairs had become extinguished with reference to the suit c D E F of which the plaintiff was then owner. In view of the walls put up under the terms of the compromise, the right had become impossible of enjoyment. Subsequently the plaintiff became the purchaser of the property south of A. C. F. H, that is the property ALKJ under the sale deed Ex. A3 dated 21-5-1956. The plaintiff claims now that even though he might have lost his right for use of the strip of land A C C1 A1 with reference to the property CDEF, he could as owner of alkj claim to go over the said right. It is in pursuance of this to go over the strip of land for repairs to the southern property, the right has been asserted in these proceedings and a mandatory injunction claimed for removal of the structures and fixtures, which would be an obstruction to the free enjoyment of the said right.