N.P.ALAGIRI AMBALAM Vs. KAILASAM

JUDGEMENT

(1.) The defendants in O.S. No. 322 of 2004 on the file of the Principal District Munsif, Karaikudi, filed this second appeal.

(2.) During the pendency of the appeal, they passed away and the son of the first appellant has been brought on record. The respondent herein, namely, Kailasam filed the said suit seeking the relief of declaration that the suit property is absolutely belonging to him and for directing the defendants to remove the encroachment committed over 352 sq. ft. of the suit property and for permanent injunction. The defendants filed written statement not only controverting the plaint averments but also questioning the very maintainability of the suit. Based on the divergent pleadings, the trial Court framed the necessary issues. The plaintiff examined himself as P.W. 1 and three other witnesses were examined on his side. Ex. A.1 to Ex. A.7 were marked. On the side of the defendants, three witnesses were examined. Ex. B.1 to Ex. B.7 were marked. An Advocate Commissioner was appointed and his report and plan were marked as Ex. C.1 and Ex. C.2. After consideration of the evidence on record, by judgment and decree dtd. 9/1/2009, the suit was dismissed. Challenging the same, the plaintiff filed A.S. No. 12 of 2009 before the Sub Court, Devakottai. By the impugned judgment and decree dtd. 30/11/2009, the decision of the trial Court was reversed and appeal was allowed and the suit came to be decreed as prayed for. Questioning the same, this second appeal came to be filed.

(3.) The second appeal was admitted on 14/3/2022 on the following substantial questions of law:-