THANGAMARIAMMAL Vs. PADMAVATHI; SUKUMARAN; PRIYA; HEMA

JUDGEMENT

(1.) The defendant in the suit in O.S.No.244 of 1994 on the file of the District Munsif Court, Nilakottai, is the appellant in this Second Appeal. The first respondent in this Second Appeal is the second plaintiff in O.S.No.244 of 1994. The first plaintiff is her husband. Since the first plaintiff died during the pendency of the suit, the respondents 2 to 4 herein were impleaded as plaintiffs 3 to 5 in the suit. The suit in O.S.No.244 of 1994 is for a declaration that the suit 'AB' wall exclusively belongs to the plaintiffs and consequently, for permanent injunction restraining the appellant herein namely the defendant in the suit from in any way causing obstruction to the construction of plaintiffs' houses. The suit is also for a permanent injunction restraining the defendant from in any manner putting up any construction in the 2 feet space just on the southern side of the house property of the plaintiffs.

(2.) The case of the respondents/plaintiffs was that the suit 'AB' wall (East-West), having a length of 54+ and width of 1, feet situate in between the houses of the respondents / plaintiffs and the appellant / defendant, is the exclusive wall of the plaintiffs and that the 2 feet lane on the further south of the exclusive wall of the plaintiffs is a common lane. The common lane is only a portion marked as 'CDEF' in the plaint plan.

(3.) Though the decree of the trial Court alone was confirmed in the appeal, the decree of the appeal shows that the respondents / plaintiffs were also granted a decree for permanent injunction restraining the appellant / defendant from putting up any construction in the common lane that was pointed out by the respondents / plaintiffs in the plaint plan as 'CDEF', namely, suit second item. Hence, the learned counsel for the appellant / defendant Mr.S.Kadarkarai, pointed out this error and submitted that the decree of the appellate Court is therefore not supported by any finding. It was the further submission of the learned counsel for the appellant / defendant that the respondents / plaintiffs have not preferred any appeal as against the judgment and decree of the trial Court dismissing the suit in respect of the second item with a prayer for permanent injunction and hence, the decree of the appellate Court cannot be sustained.