KARUPPASAMY Vs. GOVINDAN

JUDGEMENT

(1.) The plaintiff in O.S. No. 358 of 2005 on the file of the Principal District Munsif Court, Sankarankovil is the appellant in this second appeal.

(2.) The suit was filed for declaration that the suit second schedule absolutely belongs to the plaintiff. The consequential reliefs of permanent injunction and mandatory injunction were also sought. According to the plaintiff, the defendant had committed encroachment on a portion of the 2nd schedule. The encroached portion was described as suit 3rd schedule. While mandatory injunction for removing the offending construction in the 3rd schedule was sought, permanent injunction was sought in respect of the remaining portion of the 2nd schedule. The defendant filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial court framed the necessary issues. The plaintiff Karuppasamy examined himself as P.W. 1. One Madasamy was examined as P.W. 2. Ex. A1 to Ex. A5 were marked. The defendant examined himself as D.W. 1. Ex. B1 to Ex. B5 were marked. An Advocate Commissioner was appointed and his report and plan were marked as court exhibits 1 and 2. The surveyor's sketch was marked as court exhibit 3. After consideration of the evidence on record, the trial court by judgment and decree dtd. 28/6/2007 granted declaration that the suit 2nd schedule excepting the encroached portion belongs absolutely to the plaintiff. Permanent injunction was granted in respect of the remaining portion of the 2nd schedule. Instead of ordering demolition, the defendant was directed to pay a sum of Rs.6,000.00 as compensation in lieu of mandatory injunction. The plaintiff did not question the said decree. The defendant on the other hand filed A.S. No. 61 of 2008 before the Sub Court, Sankarankoil. By the impugned judgment and decree dtd. 22/7/2009, the decision of the trial court was reversed and the appeal was allowed and the suit came to be dismissed. Challenging the same, this second appeal came to be filed by the plaintiff.

(3.) The second appeal was admitted on the following substantial questions of law:-