SAMSUL HUDA Vs. MAHAMADA BEEVI AND OTHERS

JUDGEMENT

(1.) For the sake of convenience, the parties are referred to in accordance with their ranks in the original suit and in appropriate places, their ranks in the second appeal shall also be referred to.

(2.) The plaintiff in the original suit is the appellant in the second appeal. The suit was filed for permanent injunction and mandatory injunction. Contending that the site belonged to Therezhundur Perumal Temple and the same was taken on lease by the plaintiff's father Abdul Salam some thirty years prior to the filing of the suit, whereupon he put up a hut and started residing therein; that on 18.08.1991 under a deed of settlement, the father of the plaintiff gifted the said property to the plaintiff and that thus the plaintiff became entitled to the superstructure and the leasehold right in respect of the land, the suit came to be filed by the plaintiff (appellant herein). It was his further contention that the defendants, who are having their house on the west of the suit property, taking advantage of the natural obliteration of the fence,trespassed into a portion of the property and made an attempt to put up a toilet in the trespassed area; that the said attempt was prevented by the plaintiff and then a suit in O.S.No.46/1995 came to be filed by the plaintiff in the court of District Munsif, Mayiladuthurai in which an interim injunction was obtained; that disregarding and violating the order of interim injunction, the first defendant removed the parent wall of her property, a mud wall constructed abutting the parent wall of the property of the appellant/plaintiff and that hence the appellant/plaintiff was forced to approach the court for a permanent injunction against the respondents/defendants not to demolish the western wall of the plaintiff and for a mandatory injunction directing the defendants to remove the construction put up in the encroached portion and hand over possession of the encroached area to the plaintiff. The western wall of the plaintiff's house has been shown in Plaint 'A' schedule whereas the alleged encroached portion is shown in 'C' schedule and the construction put up in the alleged encroached portion has been shown in plaint 'B' schedule. From the description of the properties found in the plaint, it can be discerned that the leasehold land of the plaintiff lies on the east and the leasehold land of the defendants lies on the west and both are adjacent lands. The house of the plaintiff situates on the northern portion of her lease hold land, whereas the southern part has been used as garden in the backyard.

(3.) The suit was resisted by the respondents denying the plaintiff's case that she got the property under a Settlement Deed dated 08.08.1991 from her father. The other allegations regarding the alleged encroachment and construction of a toilet in the encroached portion have also been denied by the respondents/defendants. It was also contended that without causing any damage to the wall of the plaintiff, a compound wall was put up by the defendants at a distance of 2 to 4 feet from the western wall of the plaintiff's house and that therefore, the prayer for injunction in respect of plaint 'A' schedule property should not be granted. In respect of the other prayers, the defendants contended that the the suit should be dismissed holding the appellant/plaintiff not entitled to any of the relief sought for.