REKANTI CHINNA GOVINDA CHETTYAR Vs. SVARADAPPA CHETTYAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the appellants for a declaration of their title to the wall existing between their house and the house belonging to the respondents and for an injunction restraining the respondents from letting the water from the terrace of their house into the appellants property.

(2.) The trial Court dismissed the suit and on appeal the parties filed a joint memo, agreeing to a certain arrangement regarding the disposal of the water falling from the terrace of the respondents house and this arrangement was directed to be incorporated in the decree and no question now arises as to that part of the case. As regards the wall in dispute, the learned Subordinate Judge found that it belonged to the appellants and accordingly decreed that part of the appellants claim. This was on the 23 September, 1935. After the judgment was signed and the decree also was issued in accordance with the judgment, the respondents filed I.A. No. 63 of 1935 on the 15 of October, 1935, in which they prayed for a re-hearing of the appeal. The ground of the prayer was that though the trial Court had found that the wall belonged to the respondents, their advocate represented to the Court that they would have no objection to the wall being held to be a common wall and that under the impression that the Court would, in consequence of this concession, give a finding accordingly, he did not meet the points mentioned by the appellants advocate, though he had arguments to urge in support of the finding of the trial Court. The respondents having denied the allegations in the appellants affidavit in support of the prayer for re-hearing, the lower appellate Court apparently called for a statement from the Counsel on both sides as to what exactly happened at the previous hearing and a joint statement was filed on the 30 of October, 1935, and this was supplemented by a further explanatory statement by the respondents Counsel. Thereupon, the Court below passed the following order on I. A. No. 68 of 1935 on the 31 of October, 1935: In view of the joint statement filed by the learned Advocates that appeared for the parties and of the explanatory statement filed by the learned Advocate for the applicant, I think it fair and just that he should be given an opportunity to argue his case fully. The appeal will therefore be posted for re-hearing on 21st November.

(3.) The appeal was thus re-heard and the learned Subordinate Judge came to the conclusion that the wall in dispute was a common wall belonging to both the parties and passed a decree accordingly in supersession of his earlier decree.