KADAMBAYAN Vs. ABDUL RAZAK

JUDGEMENT

(1.) The appeal has been directed against the decree and judgment in A.S. No. 135 of 1995, on the file of Court of Principal District Judge, Pudukottai. The defendant is the appellant herein. The plaintiff has filed a suit for mandatory injunction for removal of the wall between "A" and "B" schedule properties to the plaint.

(2.) The averments in the plaint in brief relevant for the purpose of deciding this appeal are as follows:

(3.) The defendant in his written statement would contend that the defendant as plaintiff, filed a suit in O.S. No. 117/78 on the file of the Court of District Munsif, Pudukottai. The said suit was filed for declaration of title to the plaint "A" schedule property and for easementary right over the plaint "B" schedule property. The adjacent owner of "A" schedule property, Ahamed Rowther, raised a compound wall 40 years back. This defendant put up the wall connecting the compound wall and the main wall of the building situate adjacent to "B" schedule property some 30 years back. There is a hole in the above wall to drain the water from "A" schedule property through "B" schedule property. There is an observation in the earlier judgment that the plaintiff has got right to effect the repairs to the northern wall to his building by entering in "A" schedule property. There is a passage on the eastern side of the building of this defendant, which provides entry to "A" schedule property. The plaintiff has effected repairs to the northern wall of the building after institution of the suit in O.S. No. 117/78. This defendant has not encroached upon the suit properties and raised a wall between "A" and "B" schedule properties during the pendency of the suit in O.S. No. 117/78. The said wall was raised 30 years ago. This was also noted by the learned Commissioner, who inspected the suit property. Since the said wall is in existence for more than 40 years, the plaintiff has no right of easement over the suit property. The claim of the plaintiff is against law and the principles of natural justice. The plaintiff never used the suit site to enter upon the "A" schedule property. Since the plaintiff has failed in his attempt to grab "A" schedule property, he has come forward with the present suit. There is no cause of action to file the suit. Hence, the suit is liable to be dismissed. On the above pleadings, the learned trial Judge has framed three issues for trial.