SOUNDARARAJ Vs. DEVASAHAYAM

JUDGEMENT

(1.) This appeal by special leave is directed against an order of the learned single Judge of the Madras High Court, made in C. M. P. No. 1368 of 1983, reviewing his judgment in 'Second Appeal No. 86 of 1978 which he dismissed on 24-7-1981, confirming the judgment in Appeal Suit No. 135 of 1974 of the learned Subordinate Judge, Padmanabhapuram who in turn confirmed the judgment of the learned Principal District Munsif, Padmanabhapuram in Original Suit No. 365 of 1973. The appellant Soundararaj filed the suit for demarcating the boundaries of his A schedule property bearing Survey No. 3199 on which his building stands from the respondent's B schedule property bearing Survey No. 3153 on which their buildings stand and for a mandatory injunction directing the respondents to remove the eaves protruding on the northern side by reason of which the eaves water was falling into his property.

(2.) The respondents denied that they encroached upon any portion of the appellant's property and contended that he had with ulterior motives removed the survey stones on the north-eastern and north-western sides of Survey No. 3153 belonging to them and that after encroaching upon some portion of road poromboke he is claiming that the actual area of Survey No, 3199 belonging to him is more than the area as per the settlement. They contended that the eaves water falls only on their own land and that the appellant's claim for mandatory injunction is not sustainable in law. They further contended that even if it is found that the eaves water from their buildings falls on the appellant's property he has no right to object to it because they have acquired the right by prescription to allow the eaves water from their roof to fall into the property on which it is now falling.

(3.) The parties did not produce their respective title deeds. The appellant produced the Government Survey Plan Exhibit - A-3. The Advocate-Commissioner who was directed to make a local inspection and file a report, filed his report Ext. C-1 and Plans Exhibits C-2 and C-3 which were drawn to scale of 1 inch to 40 links. The respondents did not file any objection to the Commissioner's report and Plans, while the appellant filed his objections to them. The appellant contended before the trial Court that the Plan Ext. C-2 should be accepted for deciding the question of the boundary of his property whereas the respondents contended that the Plan Ext. C-3 should be accepted as, the basis for determination of the boundary. The trial Court accepted the appellant's contention that the correct measurement of the diagnol line JC in the Government Plan Exhibit A-3 is 119 links and that the measurement given in it as 113 links is wrong. The learned District Munsif took his own measurements by using a scale and was convinced on an inspection of the plans that the Plan Ext. C-2 is the correct basis for determining the boundary line and that the demarcating line for Survey No. 3153 belonging to the respondents is JR and not JD on the north and ZI and IJ on the other side, in Ext. C-2. As regards the eaves the learned District Munsif found that the northern and western eaves of the respondent's building protruding into the appellant's property as indicated in the Plan Ext. C-2 should be shortened as indicated in Ext. C-2 and that the respondents have not perfected any right of easement by prescription. In this view, the learned District Munsif passed a decree for demarcation, of the appellant's property by putting up a boundary wall to a height of 7 feet immediately west of ZI and on IJ and JR within the appellant's property and for a mandatory injunction directing the removal of portions of the eaves of the respondent's buildings west of ZI and IJ and north of JR.