SA/362/2003 of MARIA LOURDAMMAL FERNANDO(DI Vs RAJENDRAN BOOPALARAYAR on 1 September 2026

COMMON JUDGMENT

SA No.362 of 2003 is preferred against the judgment and decree, dated 27/09/2002 and made in AS No.89 of 1992 on the file of the Sub Court, Tuticorin, reversing the judgment and decree, dated 24/03/1992 and made in OS No.563 of 1990 on the file of the Additional District Munsif, Tuticorin. Whereas SA No.652 of 2004 is directed against the judgment and decree, dated 27/09/2002 and made in AS No.217 of 1992 on the file of the Sub Court, Tuticorin, confirming the judgment and decree, dated 24/03/1992 and made in OS No.523 of 1989 on the file of the Additional District Munsif, Tuticorin.

2. Originally, a suit in OS No.523 of 1989 has been filed by the appellants (Rajendran Boopalayayar and Tharasil Ammal) in SA No.652 of 2004 as plaintiffs against the first appellant (Maria Lourdammal Fernando) in SA No.362 of 2003 for declaration, injunction and for mandatory injunction declaring that the plaintiffs are entitled to easement right of air and light to the I schedule property through the II Schedule property through the windows in the eastern wall of the I schedule property and also from the space over and above the III schedule property and consequently for permanent injunction restraining the defendant from constructing any structure over II schedule western wall of the defendant's building or by raising a separate wall over the existing building by brick and mortar, directing the defendant to remove and close the two new windows in the III schedule western wall with the measurement of 47” x 25”. O.S No.563 of 1990 has been filed by the 1st respondent (Maria Lourdammal Fernando) in SA No.652 of 2004 seeking a mandatory injunction regarding the removal of the III schedule wall.

3. The brief facts in OS No.523 of 1989 are as follows:- The plaintiffs claimed that the suit II schedule property bearing Door Nos.90 and 91 are their absolute property. According to the plaintiffs, a vacant land lies in front of the I schedule property. II schedule property is the western wall of the defendant. The II schedule property namely the vacant site is a part and parcel of the I schedule property, which is mentioned as 'ABCDEF' in the plan annexed with the plaint. The western wall of the defendant's building mentioned in the III schedule property lies beyond the boundaries of the II schedule property. The wall runs from north to south upto the wall of the plaintiffs is marked as 'CD' in the plaint. Already a suit was filed by the defendant (Maria Lourthammal Fernando) in OS No.6 of 1983 against the plaintiffs praying that the defendant is entitled to white-wash and repair her western wall described in the III schedule by using the II schedule property of the plaintiffs. That suit was dismissed holding that the defendant is not entitled to use the II schedule property for whitewashing and repairing the western wall of the defendant's building. Against which, an appeal was filed by the defendant and the same was allowed and the aggrieved party namely the plaintiffs filed a second appeal before the High Court. The defendant also filed another suit in OS No.197 of 1982 for a declaration that the defendant is entitled to the easement right of air and light from II schedule property and also for a permanent injunction restraining the plaintiffs from closing the window on the western wall of the defendant's building. The said suit was allowed in favour of the defendant. An appeal filed against the said judgement also confirmed the lower court's decision. The plaintiffs filed a second appeal before the High Court and while the same was pending, the defendant put up a structure over the III schedule wall of the defendant to prevent air and light from reaching the plaintiffs. There are no windows on the plaintiff's house on the southern and northern walls. The plaintiffs' house bearing Nos.90 and 91 receive the air and light from the vacant space of the II schedule property and from the space above the III schedule property. The defendant also put up further construction over the existing building by raising the III schedule western wall. If they do so, the plaintiffs will be deprived of their easementary right of air and light and the defendant has now put up two windows in the III schedule western wall to the measurement of 47” x 43”, after removing the earlier windows with the measurement of 24” x 25”, for which she is not entitled.

4. The defendant disputed the same and filed a written statement by contending that the plaintiffs are not entitled to the III schedule property and further contended that since the III schedule property was very old and in a dilapidated condition, the defendant demolished the III schedule wall and put up a new wall to the original height from the original basement. The defendant has every right to put up a construction in her house. The plaintiffs have no right to prevent the defendant from putting up construction on the III schedule wall. It is further stated that during the pendency of the second appeal, the plaintiffs also constructed a wall adjoining the wall constructed by the defendant. Therefore, she also filed a suit in OS No.563 of 1990 for a mandatory injunction praying to demolish the same.

5. The Commissioner visited the property in OS No.523 of 1989 and filed a report stating that a new construction was put up by the defendant as well as the plaintiffs. But he admitted that the wall which was demolished by the defendant is an old limestone building and was also found damage in some places. He further stated that the plaintiffs also constructed a new wall annexed to the defendant's property and there is only a smaller space of 2 inch between the two walls. It is very difficult for one to lay even his hands. The trial Court, on the premise that the defendant had constructed a building, held that she was not entitled to an easementary right.

6. The Trial Court, after perusing the plaint and the written statement filed by the parties, has framed the following issues in OS No.523 of 1989:-

1. Whether the plaintiffs are entitled to the relief as prayed for?

2. Whether the plaintiffs are entitled to prohibit the defendant from building a wall on the property in the III schedule property?

3. Whether the plaintiffs are enjoying easement rights over the III schedule property? Is the defendant entitled to the III schedule property by pointing at the wall?

4. To what other reliefs, the plaintiffs are entitled to?

7. After hearing both sides, the Trial Court has framed the following issues in OS No.563 of 1990:-

1. Whether the plaintiff is entitled to injunction as prayed for?

2. Whether the defendants raised wall in the III schedule property without the permission of the judgment?

3. To what other reliefs, the plaintiffs are entitled to?

8. Both the suits were tried together and the witnesses were recorded in OS No.523 of 1989. On the side of the plaintiffs, PW1 and PW2 were

examined and documents Exs.P1 to P18 were marked. On the side of the defendant, she herself was examined as DW1 and documents Exs.B1 to B13 were marked. The Commissioner's report and plan were marked as Exs.C1 and C2.

9. After hearing both sides, the trial Court allowed the suit filed by the defendant namely Maria Lourthammal Fernando in O.S.No.563/1990 and dismissed the suit OS No.523 of 1989 filed by the plaintiffs namely Rajendra Poobalarayar and Tharasil Ammal.

10. Against the dismissal of the suit in OS No.523 of 1989, the plaintiffs filed AS No.217 of 1992, and another AS No.89 of 1992 has been filed by the plaintiffs against the decree and judgment of the trial Court passed in OS No.563 of 1990. Both the appeals were jointly heard by the Sub Judge, Tuticorin, and dismissed the appeal filed in AS No.89 of 1992 and allowed the appeal filed in AS No.217 of 1992, by a common judgment, dated 27/09/2002.

11. Against which, these separate second appeals were preferred by respective parties.

12. At the time of admitting SA No.362 of 2003, the following substantial questions of law were framed:-

1. Whether the Lower Appellate Court was correct in allowing A.S No.89 of 1992 reversing the well-considered judgment and decree in O.S No.563 of 1990?

2. Whether the Lower Appellate Court is correct in holding that by putting up a new wall in the same place of the old wall to the same height, the appellant has lost her easementary right?

3. Whether the Lower Appellate Court erred in holding that by putting up two new windows the easementary right of the Appellant to get air and light is destroyed?

4. Whether the Lower Appellate Court erred in holding that by putting up two big windows more burden is thrusted on the respondents?

5. Whether the Lower Appellate Court erred in holding that the respondents had legal right to put up a new wall especially without getting permission from the Municipality?

6. Whether the Lower Appellate Court failed to note that by putting up a new wall by the respondents, the easementary right of the appellant to maintain her wall is destroyed?

13. At the time of admitting SA No.652 of 2004, the following substantial questions of law were framed:- i)Whether the findings of the Courts below are vitiated by its failure to consider the evidence of PW.1 and PW.2, corroborated by documentary evidence Exs.A.1 to A.3 and the admission of PW1? ii)Whether the lower appellate Court is right in not granting the relief as prayed for, after having found that the respondent is not entitled to the relief in O.S No.563 of 1990 by a common judgment?

iii)Whether the Courts below are right in not considering the claim of the appellants for easement of light and air which the appellants were enjoying for more than the statutory period and acquired a prescriptive right by virtue of Section 15 of the Indian Easement Act?

14. Heard the learned counsel appearing on either side and perused the materials on record. Answer to the substantial questions of law:-

15. The learned Senior Counsel appearing for the appellants in S.A No.362 of 2003 placed reliance upon the judgment reported in 1921 Indian Law Reports (Vol. XLVI) 448, in Ratanlal Bholaram and others Vs. Gulam Husen Abdulalli, wherein, while considering acquisition of an easement by prescription under Section 15 of the Easements Act, it was held that the destruction of a building during the period of acquisition by prescription, followed by reconstruction of the building, would not, by itself, interrupt the continuity of enjoyment of the easement. The enjoyment of an easementary right may continue notwithstanding such intervening circumstances, provided the essential continuity of user is otherwise established.

16. The dispute in the present case relates to the alleged easementary rights claimed by the respective parties in respect of the use of windows situated on the western wall, namely W1 and W2, in Door No.93, and the right to enter upon and use the vacant space situated between Door Nos.93, 90 and 91 for the purpose of whitewashing and carrying out repairs.

17. The parties are admittedly neighbours. The house bearing Door Nos.90 and 91 is situated on the western side and is described as the first schedule property. The house bearing Door No.93 is situated on the eastern side thereof and is described as the third schedule property. In between the said properties, there is a small vacant space/courtyard (mutram), which is described as the second schedule property and marked as 'ABCDEF' in the plan annexed to the plaint in O.S.No.523 of 1989.

18. Earlier, Smt.Maria Lourdammal Fernando instituted O.S.No.197 of 1982 against Rajendra Boobalarayar seeking a declaration that she was entitled to use the windows W1 and W2 situated in her property for obtaining air and light and for a consequential injunction restraining the defendants from interfering with such user. The said suit was decreed in her favour. She had also instituted O.S.No.6 of 1983 against Rajendra Boobalarayar and another, seeking a declaration of her right to use the second schedule property for the limited purpose of whitewashing and carrying out repairs to her building and for a consequential injunction restraining the defendants from interfering with such user. The said suit was initially dismissed. Aggrieved by the judgment and decree in O.S.No. 197 of 1982, Rajendra Boobalarayar preferred A.S.No.134 of 1986, while Smt.Maria Lourdammal Fernando preferred A.S.No.89 of 1986 against the judgment in O.S.No.6 of 1983 before the learned Subordinate Judge. A.S.No.134 of 1986 was dismissed, whereas A.S.No.89 of 1986 was allowed.

19. Challenging the said judgments, S.A.No.1633 of 1989 was preferred by Rajendra Boobalarayar and S.A.No.1232 of 1987 was preferred by Smt.Maria Lourdammal Fernando. In the said second appeals, the decree relating to O.S.No.197 of 1986 was confirmed. In respect of O.S.No.6 of 1983, this Court held that the vacant space, being used as a courtyard, could not be completely closed to Smt.Maria Lourdammal

Fernando and that she could not be prevented from entering the said space for the purpose of whitewashing and repairing her wall, though such user was restricted to once in a year.

20. Subsequently, Rajendra Boobalarayar along with his wife namely Tharasil Ammal instituted O.S.No.523 of 1989 against Smt.Maria Lourdammal Fernando, contending that she had attempted to put up a wall on the western side of her property described as the third schedule property, after removing the existing window and had further attempted to install a larger window therein. They consequently sought a declaration of their easementary right to receive air and light through the said window and a consequential permanent injunction restraining her from putting up any construction over and above the existing third schedule wall.

21. Smt.Maria Lourdammal Fernando, in turn, instituted O.S.No.563 of 1990 against Rajendra Boobalarayar and his wife seeking a mandatory injunction. Her case was that the defendants had put up a construction on the western side of her wall, leaving only about two inches of space, thereby obstructing the free flow of air and light through windows W1 and W2 and preventing her from accessing the intervening space for carrying out whitewashing and repairs.

22. Both the suits were disposed of by a common judgment, dated 24.03.1992 by the learned Additional District Munsif, Tuticorin. O.S.No. 523 of 1989 was dismissed, while a direction was issued for demolition of the construction put up in the space which was the subject matter of O.S.No.563 of 1990. Aggrieved by the said judgment, Rajendra Boobalarayar preferred A.S.No.217 of 1992 before the learned Subordinate Judge, Tuticorin, which was dismissed. Thereafter, A.S.No.89 of 1992 was preferred and the same was allowed. Challenging the said judgment, Smt.Maria Lourdammal Fernando has preferred S.A.No.362 of 2003 against the judgment passed in AS No.89 of 1990, whereas Rajendra Boobalarayar and another has preferred S.A.No.652 of 2004 against the judgment in A.S.No.217 of 1992.

23. This Court is of the considered view that the judgment and decree passed by the learned First Appellate Court in A.S.No.89 of 1992 cannot be sustained. The defendant, namely, Smt.Maria Lourdammal Fernando, had merely reconstructed the wall within the limits of her own property and provided an enlarged window therein. She had neither encroached upon the property of the plaintiffs nor altered the nature or extent of the plaintiffs’ property. There was, therefore, no legal impediment to her carrying out necessary alterations or reconstruction within her own property. It is also significant that the wall in question was admittedly an old wall and was in a damaged condition. The said fact was admitted by the plaintiffs themselves. During the pendency of the second appeals, the plaintiffs also filed Contempt Petition No.426 of 1989, alleging that the defendant had demolished the existing wall and constructed a new wall with new windows in violation of the order passed by this Court. The order passed in the said contempt proceedings assumes relevance for determining the nature and extent of the respective rights of the parties.

24. The mere reconstruction of the wall by the defendant within her own property cannot have the effect of extinguishing an easementary right which had already been acquired by prescription. The principle laid down in Ratanlal Bholaram and others v. Gulam Husen Abdulalli reported in 1921 Indian Law Reports (Vol.XLVI) 448 would, therefore, have application to the extent that a change or reconstruction of the dominant or servient structure, by itself, does not necessarily terminate an easement which has otherwise been validly acquired and continuously enjoyed.

25. At the same time, the rights of the parties have to be considered in the light of the findings already rendered in the earlier proceedings. In the earlier suit, O.S.No.6 of 1983, the right of Smt.Maria Lourdammal Fernando to enter upon the intervening vacant space for the limited purpose of whitewashing and repairing her wall had already been recognised. The plaintiffs were permitted to put up construction in their property subject to leaving a space of three feet so as to enable Smt.Maria Lourdammal Ferando to have access to the intervening space and to carry out the necessary whitewashing and repair work. Such right was subsequently affirmed in the appellate proceedings, with the further stipulation that the right to whitewash could be exercised once in a year.

26. However, the photographs produced before this Court disclose that Rajendra Boobalarayar had subsequently put up a construction without leaving the requisite three-foot space. The effect of such construction is to prevent Smt.Maria Lourdammal Fernando from accessing the intervening space and thereby to obstruct her recognised right to carry out whitewashing and repairs to her wall. Such construction is plainly contrary to the rights already declared in the earlier proceedings and cannot be permitted.

27. In view of the earlier judgments and the subsequent construction put up by the plaintiffs, Smt.Maria Lourdammal Fernando is entitled to a mandatory injunction. Accordingly, the plaintiffs namely Rajendra Poobalarayar and Tharsilammal are directed to demolish the construction put up on the eastern side of their property insofar as it obstructs the three- foot access space. They are, however, at liberty to reconstruct the wall within their own property, subject to leaving a clear space of three feet, as already directed by the competent Court, so as to enable the defendant to enter the said space for carrying out necessary repairs and whitewashing of her building.

28. The plaintiffs cannot, however, seek any declaration of easementary right contrary to or inconsistent with the rights already adjudicated upon in the earlier proceedings. To that extent, the claim for declaration of easementary right is liable to be rejected, the same having already been concluded by the earlier judgments.

29. Accordingly, all the substantial questions of law are answered.

30. In the result, SA No.362 of 2003 is allowed and the judgment and decree passed in AS No.89 of 1992 by the first appellate is hereby set aside and the judgment and decree passed in OS No.563 of 1990 by the Trial Court is restored. SA No.652 of 2004 is dismissed, confirming the judgment and decree passed by the Courts below. No costs. Consequently, connected Miscellaneous Petition is closed. 01.09.2026 Index : Yes/No Internet : Yes/No er

To

1. The Sub Court, Tuticorin.

2. The Additional District Munsif Court, Tuticorin. Copy to The Section Officer, ER/VR Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA, J. er Judgment in SA No.362 of 2003 and 652 of 2004 01/09/2026