KANDASAMY Vs. SAVITHRI

JUDGEMENT

(1.) THE defendants are the appellants herein. The first respondent herein/plaintiff had filed a suit in O. S. No. 159 of 1982 before the District Munsif Court, tiruchegode, for declaration and injunction on 27/2/1982. On 8/10/1990, the first respondent herein/plaintiff had also filed an amendment petition seeking amendment of interim injunction into one as mandatory injunction. The said amendment petition was allowed by the Trial Court which was not challenged by the appellants herein.

(2.) THE Trial Court has decreed the suit and granted declaration as prayed for by the first respondent herein/plaintiff, however, it refused to grant mandatory injunction for removal of staircase and window sunshades, but granted injunction restraining the appellants herein from interfering into the property of the plaintiff for which declaration is granted. The plaintiff had filed an appeal challenging to the extent of refusal to grant mandatory injunction in A. S. No. 54 of 1991 before the sub Court, Sankari, which was allowed. Hence, the second appeal.

(3.) IT is the case of the appellants that the staircase and window sunshades were constructed as early as 1973. But the same was disputed by the plaintiff by saying that the staircase was constructed only in the year 1981, i. e. , prior to the settlement deed - Ex. A-1 executed by her father in her favour. The evidence let in by both the parties are not clear to show when the said staircase and sunshades were constructed. However, the plaintiff herself admitted that the appellant had started construction activities soon after purchase of the said property under Ex. D-6 dated 6/11/1972, but the suit was filed in 1982. The said admission tilting the case in favour of the appellants. Hence, this Court is of the view that 1st respondent herein/plaintiff has not prevented the said construction during the relevant time. Having allowed the appellants to construct the staircase and window sunshades without challenging it in time, to meet the ends of justice, this Court is of the view that the appellants may be directed to pay some compensation to the plaintiff. When the suggestion was posed to the counsels appearing on both sides, they have agreed and made bargains and this Court at last finds it fair and directed the appellants to pay a sum of Rs. 17,500/- (Rupees seventeen thousand five hundred only by way of demand draft to nanjappan, the second respondent, who is the sole legal representative of the deceased first respondent/plaintiff within a period of four weeks from the date of receipt of a copy of this order.