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V.E.R. Subbaraya Chettiar and ors. Vs. Sellamuthu Asari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad184
AppellantV.E.R. Subbaraya Chettiar and ors.
RespondentSellamuthu Asari
Cases ReferredNalupuratatol Ibraine v. Parmeswara Bavanavar
Excerpt:
- .....upon an oral admission made by the defendant in, the course of the trial. it is objected that this record of an admission contained in a judgment is not admissible as evidence of it. i am unable to agree. the case cited to me as authority for this position, saradamba v. pattabhiramayya a.i.r. 1931 mad 207, to which i was a party, only decided that where a deposition of a witness had been recorded in the ordinary way that record, and not an abstract of the evidence in the judgment was the proper evidence to give of the statement.2. here if the court acted upon an oral admission and recorded it in its judgment, which constitutes the only official record of it, i think it would be admissible in evidence under section 35, evidence act. this was the view taken in thama v. kondon (1892) 15 mad.....
Judgment:

Curgenven, J.

1. This second appeal is taken upon three points. The first is whether the room A (2) is the exclusive property of the plaintiff or is common to him and the defendants. The lower Courts have relied upon an admission by defendant 1 in O.S. No. 877 of 1924. That was a suit brought by the plaintiff for an injunction to include amongst other things the use of this room. It is true that the admission is not to be found in the written statement filed in that suit but it is recorded in the judgment, and the only inference which I can draw is that the record is based upon an oral admission made by the defendant in, the course of the trial. It is objected that this record of an admission contained in a judgment is not admissible as evidence of it. I am unable to agree. The case cited to me as authority for this position, Saradamba v. Pattabhiramayya A.I.R. 1931 Mad 207, to which I was a party, only decided that where a deposition of a witness had been recorded in the ordinary way that record, and not an abstract of the evidence in the judgment was the proper evidence to give of the statement.

2. Here if the Court acted upon an oral admission and recorded it in its judgment, which constitutes the only official record of it, I think it would be admissible in evidence under Section 35, Evidence Act. This was the view taken in Thama v. Kondon (1892) 15 Mad 378. The Full Bench case Seethapathi Rao v. Venkanna Dora AIR1922 Mad 71 related to judgments not inter partes, and as has been observed by Madhavan Nair, J., in Nalupuratatol Ibraine v. Parmeswara Bavanavar : AIR1925Mad1019 the observations with regard to recitals in judgments inter partes to be found in the judgment in that case are mere obiter dicta. In the case last cited, Madhavan Nair, J., held that a judgment inter partes, which contains a recital of the pleadings, is admissible in a subsequent suit to prove an acknowledgment, and on the same principle it appears to me that the recital here of defendant l's admission is equally evidence of it. It can hardly, I think, be disputed that proof may be adduced of the oral admission made in the prior suit, and if the only official record is not to afford means of proof it is difficult to see how it can be proved. It would be absurd to prefer to such a record the oral evidence of some person who heard what was said. I think there is no substance in this objection. I should also be prepared to hold with the learned Subordinate Judge that the finding in the previous suit operates as res judicata. It is clear that the Court decided the issue upon the defendant's admission and in view of that admission refrained from giving the plaintiff an injunction but dismissed his suit. It is surely not open to defendant now to re agitate that issue.

3. The second point relates to the door D. The lower Courts consider that the plaintiff is entitled to a mandatory injunction directing the defendant to remove this door. It has been found that part of the lane south of the cross-wall TU is the property of the plaintiff. The learned District Munsif admits that this finding would not in itself afford sufficient ground for an injunction because there is no such right to privacy as would justify it, but he thinks that the terms of the razinama contemplated that such privacy should be ensured. I cannot find anything in this razinama beyond the stipulations that the cross-wall shall be shifted to a point further south and that the defendants shall only be allowed to enter the lane for the purpose of executing repairs. It does not in fact take the matter further than the finding with regard to the plaintiff's title to the lower portion of the lane and I cannot hold that it deprives the defendant of his natural right to put door or windows in his wall, although it may restrict his use of them. The learned Subordinate Judge thinks that an injunction should follow from the agreement that, except for purposes of repair and then only by entry from the north end of the lane, the plaintiff is to have the exclusive benefit of the lane. It is not clear how the mere act of placing a door in the defendant's wall would run counter to this right although different questions will of course arise the moment he endeavours to take advantage of the door as a means of access to the lane. I think therefore that the fourth term in the decree 'that defendants do remove the doorway at the point D in the wall FE at their cost' must be expunged.

4. The third point relates to the wall NX (2). The plan shows that this wall is built upon the plaintiff's property and that must be the ground upon which the decree directs its removal at the defendants' cost. There is no reason to interfere with this direction. I allow the second appeal in part and in other respects dismiss it. The parties will pay and receive proportionate costs.


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