SANTHAKUMARAN Vs. VIVEKANANDAN

JUDGEMENT

(1.) These second appeals arise from A.S.Nos.97 and 98 of 2010 on the file of the District Court, Palakkad. A.S.No.97 of 2010 was an appeal preferred against the decision in O.S.No.261 of 2008 and A.S.No.98 of 2010 was an appeal preferred against the decision in O.S.No.410 of 2008. The aforesaid suits on the file of the Munsiff court, Chittur were tried together, treating O.S.No.410 of 2008 as the lead case. As such, I am referring to the parties in this judgment as they appear in O.S.No.410 of 2008.

(2.) O.S.No.410 of 2008 was a suit for mandatory injunction. The plaintiff is the brother of the defendant. The plaint schedule property is part of a larger extent of property held by the parents of the parties, viz., Dharmandi and Dakshayani. As per Ext.A4, they assigned the property situated on the north of the plaint schedule property and the rice mill therein to the defendant. While transferring the said property, the plaint schedule property was retained for access to the said property as also to the remaining property of the vendors situated on the east of the plaint schedule property from the southern public road. Since the plaint schedule property was intended for access to the property given to the defendant, he was given one half undivided right over the same also as per Ext.A4 sale deed. The remaining property of the vendors of the defendant situated on the east of the plaint schedule property as referred to above was their residential property. As such, in view of the existence of the rice mill in the property given to the defendant, a few covenants were imposed on the defendant as per Ext.A4 sale deed itself to prevent the possible nuisance on account of the functioning of the rice mill. The said covenants obligate the defendant, among others, to construct a compound wall at a height of 8 feet separating the properties given to the defendant and retained by the vendors; to keep a gate opening to the plaint schedule property for entry to the rice mill on the western extremity of the compound wall directed to be constructed; to construct a compound wall on the western boundary of the plaint schedule property and to maintain the gate at the southern boundary of the plaint schedule property for the use of the defendant as also the vendors by keeping one of its key with him and giving one key to the vendors. It is beyond dispute that the defendant was enjoying the property pursuant to Ext.A 4 sale deed after complying with the covenants imposed on him. Later, the plaintiff purchased the residential property retained by the vendors of the defendant as per Ext.B1 document. After the death of the vendors of the parties, the remaining one half right in the plaint schedule property devolved on both the plaintiff and defendant. The case of the plaintiff is that the defendant has demolished the compound wall on the western boundary and the gate installed on the southern boundary of the plaint shedule property on 29.3.2008. He, therefore, sought a decree of mandatory injunction directing the defendant to restore the compound wall on the western boundary of the plaint schedule property as also to erect and maintain the gate on its southern boundary. In the meanwhile, the defendant has filed O.S.NO.261 of 2008 seeking a decree of permanent prohibitory injunction restraining the plaintiff from causing obstructions to the user of the plaint schedule property as access to the property covered by Ext.A4 sale deed. As noticed above, the suits were tried together. By a common judgment, the trial court decreed O.S.No.410 of 2008 and dismissed O.S.No.261 of 2008. The defendant challenged the decision of the trial court in appeal. The appellate court, on a re-appraisal of the evidence on record, confirmed the decision of the trial court. Hence these second appeals by the defendant.

(3.) Heard the learned Senior Counsel on either side.