ASHRAFUNNISSA ALIAS HASARATHUNISSA Vs. AYISHA MUTHU

JUDGEMENT

(1.) THE Plaintiff, who lost her case before the courts below, has come forward with this second appeal.

(2.) FOR the sake of convenience, the parties shall hereinafter be referred to as per their rank before the trial court.

(3.) THE Plaintiff has filed the suit for declaration, possession and for a consequential injunction. According to the plaintiff, the suit property is common space measuring 8 feet North to South and 26 feet East to West marked as ABCD; bathroom EMNF; Store room MNCO; latrine EFDG; and the door ways P and Q in the plan filed with the plaint, in Door Nos. 157, 165 and 167, Devendra Street, Coimbatore. The suit property and other properties were originally owned and possessed by one Mahaboob Unnissa Bibi, W/o. Mohammed Dawood. On 17-10-1966, under Ex. A-3, the said Mahaboob Unnissa Bibi sold southern portion of the property at Door No. 16/157, 165 and 167 together with vacant portion measuring 8 feet North to South and 26 feet East to West with liberty to the residents to use the two latrines in the vacant space and to reach the Devendra street on the East in common to the Defendants predecessor in title namely T. M. Mohammed Haneefa. On the same day i. e. , 17-10-1966, the said Mahaboob Unnissa Bibi executed a deed of settlement in favour of the plaintiff in respect of the Northern portion of the Door No. 16/157, 165 and 167 and also the common right in the Southern vacant space measuring 8 feet North to South and 26 feet East to West and in two flush out latrines in the vacant space and the common right in the western 3 feet land; that the plaintiff and T. M. Mohammed Haneefa became entitled to common rights in the Southern open space 8 feet X 26 feet together with two common latrines and 3 feet on the Western side for the use of the open space and the passage leading to Devendra Street on the Eastern side. According to the plaintiff, she is residing in Port blair since 1979 and therefore she had given a power of attorney to the said T. M. Mohammed Haneefa on 30-09-1982 for management of her properties which was subsequently revoked. Thereafter, on 04-11-1983, the plaintiff appointed and retained Mr. S. Gulam Hussain, elder brother of her husband as her power of attorney. During November 1983, the said Mohammed Haneefa had put up constructions in the common passage namely bath room, store room and also installed two doors in the portions marked ABCD in the sketch attached with the plaint thereby prevented the common access to the plaintiff and her tenants to go to the latrine and the common passage leading to Devendra Street. On 19-12-1983, Ex. P5, the plaintiff issued a legal notice to the said T. M. Mohammed Haneefa and called upon him to remove the unlawful construction put up by him and on 04-01-1984, Ex. A6, a reply was sent by the said T. M. Mohammed Haneefa containing frivolous allegations. On 20-12-1984, the said Mohammed Haneefa died, hence the suit was filed against the defendants herein, who are wife and children of the said Mohammed Haneefa.