C MAYAM PERUMAL KONAR Vs. THANGAMMAL

JUDGEMENT

(1.) DEFENDANTS 2 to 5 in O.S. No.637 of 1977 on the file of District Munsif, Karur, are the appellants in the second appeal. The respondent herein filed the suit O.S. No.637 of 1977 before the said court for declaration of his right, title and interest over the suit property and for permanent injunction restraining the defendants from in any manner doing anything and raising construction and for mandatory injunction directing the defendants to remove the construction on the disputed property within the time fixed by the court.

(2.) THE averments in the plaint are as follows: THE vacant site of the suit "A" schedule property originally belonged to one Chinnappa Konar, who is the father of defendants 1 and 2 and one Srinivasa Konar, who is the husband of the plaintiff. One Krishna Konar and his son have partitioned their joint family properties including the suit "A" schedule property on 30.3.1938 under a registered partition deed. In the partition, the western half of the vacant site of "A" schedule property was allotted to the said Srinivasa Konar and the eastern half of the vacant site of "A" schedule property was allotted to the said Chinnappa Konar, who is father of defendants 1 and 2. Soon after the partition arrangement, the plaintiff's husband has built his house in the western portion which was allotted to him in the partition arrangement. Long after the construction of the house of the plaintiff's husband, the defendants 1 and 2 had put up constructions in the eastern portion allotted to their father in the partition arrangement. Even though the north to south wall standing between the western portion of the plaintiff's husband and the eastern portion of the defendant 1 and 2 in the suit "A" schedule property which is marked as A B in the rough plan and shown as B schedule property in the description of the property in the plaint was constructed by the plaintiff's husband exclusively at his own cost, it is a common party wall. THE plaintiff's husband Srinivasa Konar died on 19.9.1973 leaving behind him the plaintiff as his only heir. THE plaintiff is residing in the western portion of the "A" schedule property. Since the first defendant died during the pendency of the suit, his wife and children were added as defendants 3 to 5. THE defendants have been remodelling their house or. the eastern portion of the "A" schedule property. During the absence of the plaintiff or about 22 days, the defendants have highhandedly raised the wall in the central portion marked as X, Y in the rough plan and have unlawfully put up a terrace on the raised portion of the wall. Further, they have raised the eastern half of A B wall on the northern portion to some height. THE defendants are not entitled to put up any construction or to partition the above said A B wall. A co-owner is entitled to enjoy every inch of the property to his best advantage. Hence she has filed the present suit.

(3.) DEFENDANTS 2 to 5 adopted the written statement of the first defendant.