R S MUTHUSWAMI GOUNDER Vs. A ANNAMALAI

JUDGEMENT

(1.) The first defendant R. S. Muthuswami Gounder, who has lost in both the Courts below, is the appellant in this second appeal. The plaintiff A. Annamalai filed the suit for a declaration of his title to the suit property and for recovering vacant possession of the same and also for a mandatory injunction directing the demolition of the superstructure put up on the, property by the first defendant and for damages of Rs. 200 for use and occupation of the property by the first defendant at Rs. 100 per mensem from the middle of January 1972.

(2.) The suit property is a vacant site measuring 42 ft. east to west and 136 ft. north to south on the west and 126 ft. north to south on the east, in T. S. No. 907/2 in Erode Municipal town, stated to be in three plots. According to the plaint, T. S. No. 907/2 belonged to defendants 5 to 7 and some other cosharers. Defendants 5 to 7 got for their share in the partition effected under Ex. A. 1, dated 6th May 1967, the portion marked A, B, C, D in the plaint plan measuring 270-1/2 ft. east to west on the south. 225-1/2 ft east to west on the north, 162-1/2 ft. north to south on the west and 115-1/2 ft. north to south of the east. These defendants 5 to 7 sold under Exs. A. 3, A. 4 and A. 5 all dated 19th July 1967 three plots marked 1 to 3 in the plaint plan to the plaintiff, the third defendant and the fourth defendant respectively. Defendants 5 to 7 sold the plot marked No. 4 in the plaint plan to the tenth defendant under Ex. A. 6, dated 20th November 1967. They sold the plot marked No. 5 in the plaint plan to the second defendant under Exhibit A-7 dated 10-3-1969, and on the same day they sold the plot marked No. 6 in the plaint plan to the first defendant under Exhibit A-9, and the plot marked No. 7 in the plaint plan to defendants 1 and 2 under Exhibit A-9. Defendants 1 and 2 entered into an exchange transaction under Exhibit A-10, dated 17-8-1970, whereby the first defendant became entitled to the plot marked No. 7 in the plaint plan situate immediately east of the suit property marked No. 3 in the plaint plan. According to the plaint, the plaintiff was not aware until January 1972, of any construction having been put up on the suit property. In January, 1972, when the plaintiff measured his property he discovered that the first defendant had encroached upon a portion of the suit property. The first defendant has put up a tiled roofing for putting up looms, a small room with sara palagai facing the 40 feet east to west road and a small tiled house with 2 or 3 rooms for his residence behind that room. After the first defendant declined to comply with the plaintiff's request to remove the encroachment, the plaintiff sent the notice, Exhibit A-11, dated 2-2-1972, for which the first defendant sent the reply notice, Exhibit A-12, dated 15-3-1972 with false allegations and exaggerated value of the constructions put up by him on the suit property. The plaintiff flied the suit in those circumstances for the aforesaid relief's.

(3.) The first defendant alone contested the suit. His defence was that he is a bona fide purchaser for value of the property lying east of the suit property and he raised the construction on the suit property first in 1970. The plaintiff did not raise any objection until February 1972. The first defendant has put up constructions at a cost of Rs. 25,000/- under the bona fide belief that the suit property belongs to him. Nearly 21/2 years have elapsed after the construction of the buildings by the first defendant and the plaintiff raised no objection. The conduct of the plaintiff would clearly show that he has acquiesced in the acts of the first defendant. In those circumstances, though there may be a mistake on the part of the first defendant, the plaintiff is not justified in asking for delivery of vacant possession of the land and he would be entitled to receive only, compensation at the prevailing market rate.