PERUMAL NAICKER Vs. RATHINA NAICKER

JUDGEMENT

(1.) The above second appeal is directed against the judgment and decree dated 12-8-1992 rendered in A.S. No. 37 of 1988 by the Court of Subordinate Judge, Kancheepuram thereby confirming the judgment and decree dated 22-7-1987 rendered in O.S. No. 215 of 1981 by the Court of Principal District Munsif. Kancheepuram.

(2.) Tracing the history of the above second appeal coming to be preferred by the defendant in the suit, it comes to be known that the respondents herein have filed the suit on their behalf and on behalf of the villagers of Perumbakkam praying for declaration and permanent injunction as against the appellant herein on averments such as that the defendant's grandmother was granted patta for four cents of land in S. No. 132; that after the death of his grandmother, the defendant put up a construction in a larger extent than that of the four cents land adjoining the land in S. No, 153/2 encroaching upon the extent of 27' x 15' pathway lying on the South thereby obstructing the general public from proceeding to the river and the graveyard which has been indicated as ABCD in the plaint plan; that on being reported against with the Revenue authorities, the District Collector, the Revenue Divisional Officer and the Tahsildar having inspected the spot, they have instructed the defendant to remove the wall and hence the suit for declaration to the effect that the pathway in the plaint rough plan in EFGH; that it is a common pathway for permanent injunction not to put up any more construction in the portion indicated as ABCD and for the mandatory injunction for demolishing the wall put up in the ABCD of the suit property.

(3.) This suit would be resisted by the defendant denying the contention of the plaintiffs that he has put up the construction over and above the 4 cents of land and has encroached upon the excess land used as a pathway by the general public; that there is no such pathway at all; that the construction had been put up 40 years back; that the measurement of the property of the defendant is East-West 30 links and North South 11 links and by virtue of the long possession and enjoyment, the defendant has become absolutely entitled to this portion and hence would pray to dismiss the suit.