S GNANASIGAMANI Vs. G BANGIRAS

JUDGEMENT

(1.) This second appeal has been brought forth from the judgment of the learned Subordinate Judge, Nagercoil, made in A.S.No.8/91 wherein the judgment of the trial Court namely the Court of Additional District Munsif, Nagercoil, was reversed by dismissing the suit.

(2.) The plaintiffs, who are the appellants herein, filed the suit seeking for a declaratory relief that the walls shown as ABCD and EFGH in the plaint Schedule are the common boundary walls of the plaintiffs and the second defendant on the one hand and the first defendant on the other and for consequential injunction restraining the first defendant from putting up any wall or constructions above the said ABCD and EFGH walls or to raise the walls with the following allegations: The suit property namely a wall, along ABCD and EFGH is the common boundary wall of the western 14 cents belonging to the father of the first defendant Gnanakkan Nadar and of the eastern 14 > cents from the west belonging to the father of the plaintiffs 1 and 2, the second defendant and the grandfather of the plaintiffs 3 and 4 Swamiyadian Nadar. In the family arrangement among the sons of Gnanakkan Nadar, the western half of the western 14 > cents was obtained by Thankiah, while the eastern half of the western 14 > was obtained by the first defendant. The first defendant put up a building in his property; but, the eastern wall of the house was put up abutting the common boundary of the western most 14 > cents and the eastern 14 > cents. The parties measured the properties and found out that the eastern wall of the house came on the common boundary line. As the parties are related, the sons of Swamiyadian Nadar never wanted to demolish the house wall of the first defendant. In the common intervening boundary, long before the construction made by the first defendant, Swamiyadian Nadar put up a wall on the northern side of the house wall and constructed a cattle shed. There was a partition in the year 1965 among the heirs of Swamiyadian Nadar, and the said eastern 14 > cents was divided into various plots. The said cattle shed was also removed by the parties at the time of partition. In the year 1980, the parties put up a common boundary wall along ABCD and DEFG portions. The suit walls along ABCD and EFGH was put up by the parties as common boundary walls. Neither the plaintiffs nor the first defendant is entitled to use the common boundary walls for their own use. While so, the first defendant attempted to raise the level of the walls, and thus, there arose a necessity for filing the suit for the above said reliefs.

(3.) The second defendant remained ex-parte. The suit was resisted by the first defendant with the following allegations: It is false to state that the wall at ABCD and EFGH is a common boundary wall. The first defendant's father Gnanakkan Nadar was allotted the western most plot measuring 15 cents, in the partition. The first defendant put up a house about 25 years ago in his eastern side, and the eastern wall of his house was built on his eastern most boundary. He also put up a mud wall upto south and north in line with the eastern wall of his house, and subsequently, a rubble wall was situated at BD about 2 years ago and at FH a year ago. This wall is well situated in his property alone, and it is not a common boundary wall. The cattle shed of Swamiyadian Nadar was in his own property and has nothing to do with the first defendant's property. The first defendant as full owner has ever right to use the wall or raise its level, etc. The plaintiffs have no right to question the same. When the first plaintiff and his friends attempted to demolish the wall on 19.8.1982 and demolished some portions of it, the first defendant gave a police complaint. The police admonished the plaintiffs. After that only, the plaintiffs have come forward with the false suit, and hence, the same was to be dismissed.