CHINNAMMAL Vs. SUBRAMANIAN

JUDGEMENT

(1.) THIS second appeal arises out of the judgment in A.S.No.29 of 1993, reversing the judgment of the trial Court, dismissing the plaintiffs' suit in so far as declaration and permanent injunction.

(2.) CASE of the plaintiffs is that property at D.No.2, Melavasal, Srirangam, Trichy is the ancestral property of the plaintiffs. In the partition deed dated 01.01.1946 entered into between second plaintiff's father (Marudhamuthu Poosariar) and his elder brother (Sundararajan Poosariar), the suit property and other properties were allotted to Marudhamuthu Poosariar under Ex.A.1 - partition deed. The defendant purchased northern side property from the heirs of Soundararajan Iyengar under Ex.A.3 - sale deed (dated 14.02.1983). The plaintiffs are the southern side owners and the defendant is the northern side owner. In the suit for redemption in O.S.No.180 of 1941, as per compromise decree, the parties have agreed to construct a common wall in the middle, each sharers giving up 6 inches. Case of the plaintiffs is that the common wall has been erected during the year 1947. But, contrary to the terms of compromise, in Ex.A.3 - Sale Deed in favour of the defendant, the common wall was described as absolutely belonging to the vendor of the defendant. The defendant had demolished the said wall and encroached an area of not less than 3 feet in the plaintiffs' property and constructed wall and hence, the plaintiffs have filed the suit for declaration, demolition of the wall and vacant possession of the suit schedule property i.e., an extent of 3 feet north south and 75 feet east west situated on the southern side of the defendant's property and also for recovery of a sum of Rs.500/ - being the damages for having caused damage to the plaintiff's tiles and reapers.

(3.) DENYING plaint averments, the defendant has filed written statement contending that he and his predecessor in title are entitled to 39 feet towards north south. According to defendant, the entire stretch of 39 feet has been in the absolute possession and enjoyment of the defendant's vendor's predecessor in title. As per the compromise decree in O.S.No.180 of 1941, no common wall has been erected. The defendant's predecessor in title Soundararajan Iyengar himself has erected the wall well within his limits. Since the said wall had fallen down, the defendant constructed the wall leaving some space on the south of his property. The wall in question belongs to the defendant and the plaintiffs are not entitled to any relief.