ST ANTHONYS CHURCH Vs. KRISHNAVENI AMMAL

JUDGEMENT

(1.) The plaintiff is the appellant. The suit is for eviction and possession of a small piece of land on which-the defendant has raised a wall. The plaintiff is a church represented by its Parish Priest. The defendant is the owner of the site and the building thereon on the South-western side of the church and its compound. She got it from her father under a settlement deed, Ex. A-1, dated 10-1-1952. The father got it by a purchase from one Ami Narayanaswami Mudaliar under Ex. B-8, dated 23-11-1933. The original owner was one Agatheeswara Mudaliar and it was from him Ami Narayanaswami Mudaliar bought it in November 1933. The church and the defendant's building are all in Marshalls Road. The church property is comprised in T. S. No. 1423 and 1422/1. The defendant's building is comprised in T. S. No. 1422/2. During the lifetime of the defendant's father he applied to the Corporation for sanction to demolish his building and to reconstruct on the same plot. Before the sanction he died. After the sanction the defendant demolished, to begin with, a wall on the eastern side which was clearly beyond the tap and the flush-out of the defendant's house and reconstructed it. There is dispute as to when it was demolished and reconstructed. The plaintiff alleges that it was in November 1952 while the defendant asserts that was in April 1952. As the lower Court rightly finds it is immaterial as to when it was demolished, though the lower Court seems to accept the case of the defendant that it was built in April 1952. The plaintiff claims the space over which this wall has been built as his own. The plot is between 2 feet and 3 feet in width. It is not disputed that there was a wall in the same place and it was that wall that was demolished by the defendant and a new one built. It is not also disputed that in the same place the present wall has been raised. The old wall and the space over which it stood are claimed by the plaintiff as his while the defendant claims title to the same by adverse possession.

(2.) The real question in this case is as to whom do this wall and the space beneath it belong and who was in possession of them.

(3.) At the time when the wall was demolished, the case of the plaintiff is that the defendant took the permission to demolish and reconstruct the wall at the defendant's cost. The defendant denies it and says that she wanted permission not to demolish and build the wall but to store her materials in the open space east of the wall. The lower Court in its appreciation of the evidence let in on both sides has rejected the evidence of the plaintiff's witnesses and has accepted the evidence of the defendant who has given evidence as D. W. 6. The learned Judge says: