R PANDIAN Vs. NAGAMMAL

JUDGEMENT

(1.) THE plaintiff in O.S.Nos.68 of 1978. First Additional District Munsif 's Court, Tiruchy, is the appellant in this second appeal. THE appellant is the absolute owner of door No.65, Bishop Road, Puthur, Tiruchy. THE respondents, related as mother and son, are the owners of door No.64, Bishop Road, Puthur, Tiruchy, situate immediately to the east of the house belonging to the appellant. THE appellant claimed that the eastern wall of his house belonged absolutely to him as exclusive owner thereof and also by continuous possession and enjoyment and acquisition of prescriptive title thereto. According to the appellant, an ancient window existed in his eastern wall at a height of 12' and through that window, his predecessors -in-title and himself have been getting free air and light without any obstruction whatsoever for over the statutory period, that the respondents attempted to construct a building in their site and in that process, a wall close to the eastern wall of the appellant was about to be raised without any regard for the rights of the appellant and the respondents had also scooped about 9" inside the wall on the eastern side for about a length of 20' and were hurrying with the construction with a view to obstruct the window in the eastern wall of the appellant. It was under those circumstances, the appellant instituted the suit praying for a declaration that he is the exclusive owner of the eastern wall of his house and that he had prescribed to an easementary right of free light and air through the window that existed in that wall and for a permanent injunction restraining the respondents from interfering with his possession and enjoyment of the wall as well as the window therein and for recovery of a sum of Rs.50 for trespass and damage caused to the wall.

(2.) IN the written statement filed by the respondents, they contended that door No.64 and Door No.65 originally belonged to one Parimanam Pillai having been purchased by him under a sale deed dated 29.11.1980 from one Appavu Pillai and pursuant to the partition between parimanam pillai and his younger brother Naga Pillai (grand father of the 2nd respondent), the premises bearing door No.64 corresponding to old Door Nos.16 and 17 had been in the possession and enjoyment of the father of the 2nd respondent Ponnusami Pillai and from the year 1898 onwards, the wall had been enjoyed only as a common wall. Even the partition deed, according to the respondents, referred to the wall as a common wall and as such, the claim of the appellant that he is the exclusive owner of the wall was unsustainable. The respondents claimed that in the common wall, their forefathers have erected tiled structure and terraced portion by inserting rafters and beams and as the appellant is not the exclusive owner of the suit wall, he is not entitled to any of the reliefs prayed for in the suit. The window in question, according to the respondents, was put up recently and the appellant had other windows for getting light and air on the south, west and north and therefore, the appellant really no cause for complaint. The respondents reiterated their right to put up the building within their own limits and disputed the claim of the appellant for recovery of damages.

(3.) INITIALLY no doubt the appellant came forward with the case that the wall in dispute belonged to him absolutely. However, on the basis of the recitals in the partition deed Ex.B.1, it has been earlier held that the wall in dispute is the common wall of the appellant and the respondents. The relief of exclusive title to the wall in dispute prayed for by the appellant originally is a larger relief and when it is found by the court that the wall in question is not the exclusive wall of the appellant, but the common wall of the appellant and the respondents, there is no jurisdiction to deprive the appellant of the lesser relief with reference to the disputed wall. To begin with, the appellant put forth his exclusive right to the wall in dispute but if such a right is not made out on the evidence, it is difficult to deny the appellant even such rights in the disputed wall as have been made out on the evidence. The finding of the lower appellate court, accepted by this court, is that the wall in dispute is a common wall and the ends of justice require, consistent with that finding, the rights of parties should also be declared, as otherwise, their rights in the wall would continue to be left in a nebulous state, despite a finding to the effect that the wall in dispute is a common wall. There is no inconsistency in the claim for relief put forth by the appellant initially with reference to the wall in dispute and on the basis of the finding now arrived at. A larger relief had been prayed for by the appellant and when it is found that the appellant is entitled to a lesser relief, there could be no objection to the grant of the lesser relief to the appellant on the finding arrived at by the court. The ends of justice also require that relief on the basis of such rights, as have been established, should be given, though larger rights had initially been asked for, but had not been made out. The decision relied on Elumalai Chetty v.Naina Mudali, 99 L.W.703 by the learned counsel for the respondents does not compel the refusal of the lesser relief to which a party may be found entitled, though initially he had prayed for a larger relief. Therefore, there can be no impediment in granting a declaration that the wall in question, along with the window therein, is common to the appellant and the respondents.