MOHAMED YACOOB Vs. SHAJADHI BEGUM

JUDGEMENT

(1.) THE defendants in O.S.No.631 of 1980 on the file of District Munsif Court, Tanjore have preferred the present second appeal aggrieved against the judgment and decree made in A.S.No.19 of 1987 on the file of Sub Court, Tanjore reversing the judgment and decree of the trial Court dated 23.4.1985.

(2.) THE case in brief is as follows: THE plaintiff filed a suit for declaration that she is the owner of the suit property marked as A, B, C, D in the plaint plan and for permanent injunction and to pass a decree for mandatory injunction directing the defendants to demolish the construction made on the suit property. THE property bearing T.S.No.160 in Samandampalayam Muslim Street, Thanjavur was settled in favour of the plaintiff by her mother on 26.9.1957 under a registered settlement deed. Ever since the date, she is in possession of the property. She had constructed a house with the approval of the Municipality in 1973. THE defendants are the owners of the property situated on the north of the plaintiff's house and it is in T.S.No.159. THE plaintiff owns 39 feet on the western side of the property in the north-south line whereas the defendant own 35 feet north-south on the western side. THE defendants while constructing in T.S.No.159 attempted to encroach the portion marked as A, B, C in the plaint plan. THE plaintiff also approached the Municipality to survey the boundaries of the property and on measurement, survey stones were also fixed. But the defendants are bent upon encroaching 2 1/2 feet in a rectangular space on the western side of the property marked as A, B, C. THE defendants are making trenches on the line marked A, B, C and as they have completed the construction, relief of mandatory injunction is claimed. Hence, the suit.

(3.) THE suit property is marked as A, B, C in the plaint plan measuring 15 feet east-west and 1 foot 9 inches north-south on the west (rectangle) and tapering towards east. According to the plaintiff, the suit property forms part of T.S.No.160. It is admitted that T.S.No.159 is situated on the north of T.S.No.160. THE house of the plaintiff is in T.S.No.160 whereas the house of the defendants is in T.S.No.159. Admittedly, there is a lane portion in between the property of the plaintiff and now the plaintiff claims that this lane portion is forming part of T.S.No.160 whereas the defendants claim that it is in T.S.No.159. According to the plaintiff, the defendants while putting up construction in the property had encroached the area marked as A, B, C in the plaint plan and therefore, the plaintiff was constrained to file a suit for declaration and injunction; but, however, during the pendency the construction was completed and therefore, the plaint was amended claiming the relief of mandatory injunction.