S.VIJAYAVENI Vs. AYYAMMAL

JUDGEMENT

(1.) Aggrieved over the concurrent judgment and decree of the trial Court and the appellate Court granting declaration and consequential injunction in respect of the third schedule property and also mandatory injunction in respect of the second schedule property, the present second appeal has been filed. For the sake of convenience, the parties are referred as per their rank in the suit.

(2.) The brief facts of the plaintiff case is as follows. The suit property originally belonged to the plaintiff's grand father Ellappa Naicker by virtue of sale deed dated 30.08.2011. The second schedule property is the western portion of the first schedule property. The said Ellappa Naicker had three sons namely Ramasamy Naicker, Venkadasamy Naicker and Ellappa Naicker. The plaintiff is the son of the Venkadasamy Naicker. Ramasamy Naicker died issueless. Therefore, the plaintiff's father Venkadasamy Naicker and his brother Ellappa Naicker succeeded the share of the Ramasamy Naicker and enjoying the properties together. Thereafter, in a family arrangements, â .. "rd share on the western side of the property allotted to the plaintiff and the remaining â .. "rd share on the eastern side was allotted to Ellappa Naicker. As per the above oral partition and family arrangement, first item of the suit property was enjoyed by the plaintiff. The property allotted to the plaintiff is shown as third schedule property. The first defendant has purchased the â .. "rd share from the plaintiff's Uncle Ellappa Naicker's legal heirs. When the matter stood us, the first defendant encroached upon 6 ¾ feet land on the western side of the second schedule and put up a construction when the plaintiff was away from the native. Immediately, the plaintiff issued a legal notice on 06.05.1981. Hence, the suit has been filed for declaration and mandatory injunction.

(3.) The case of the third defendant and adopted by the 2, 4 to 9 defendants are as follows. Admittedly, the properties originally belong to the plaintiff's Grandfather and his sons. It is the contention of the defendants that the measurement shown in the first schedule is not correct. In fact the eastern side only 34 feet and south-west only 42 feet alone available. The first defendant purchased â .. " of the property from Ellappa Naicker's legal heirs on 12.01.1967. After such purchase, there was an understanding between the first defendant and the plaintiff that the first defendant should enjoy the â .. "rd share in the northern side East-West. Similarly, the plaintiff enjoyed â .. "rd share in the southern side East-West and both of them enjoying the property as per the oral understanding. The first defendant has also constructed the latrine in the North-East side in the year 1979. In the second schedule property, there was a cow shed and the same was removed by the defendants and the same has been converted as a Match Box Factory. Similarly, the first defendant also had a property on the western side of the suit property to an extent of 25 feet and southern side 28 feet and Northern side and south-west 44 feet and eastern side 42 feet. The plaintiff has suppressed the existence of the defendants land adjacent to the suit property and in the suit property, the defendants have constructed the Match Box Factory and measurement given in the plaintiff is also not correct. The first defendant also executed the Will in favour of the defendants 3 to 5 and they are in enjoyment of the property. Hence, prayed for dismissal of the suit.