R KUMAR Vs. G JAGANMOORTHY

JUDGEMENT

(1.) The brief facts of the case as follows:

(2.) The appellant/plaintiff has filed a suit in O.S.No. 3736 of 2010 against the respondent/defendant for mandatory injunction to remove the illegal superstructure put up in B schedule property and hand over vacant possession to the plaintiff and permanent injunction restraining the respondent/ defendant from in any manner by constructing permanent building in the B schedule property of encroached portion. According to the appellant/plaintiff, the suit property originally belonged to one Kannan, who settled the same in favour of his son Swamikannu on 22.6.1945. The said Swamikannu died on 9.3.1986 leaving behind his sons Vasanthakumar, Ravikumar and Rajakumar. Thereafter, the appellant/plaintiff purchased the suit property from the said three persons by sale deed, dated 15.12.1997 and he is in possession and enjoyment of the same. The defendant claiming to be the owner of the property comprised in S.No.56, bearing door No.7, old No.40, Varadhapuram, 2nd street, Kottur, i.e. adjacent to the plaintiff's house property has encroached the plaintiff's vacant land to an extent of 201.5 sq.ft. of his southern side of suit B schedule property and also constructed a temporary structure. The defendant's brother one K.Gunasekaran, who is residing on the northern side of the plaintiff's property also encroached the plaintiff's property to an extent of 40.5 sq.ft. The defendant and his brother with the support of each other have encroached the plaintiff's property. The plaintiff caused legal notice on 16.2.2010, but the defendant gave evasive reply on 6.3.2010 for which the plaintiff gave suitable rejoinder on 9.3.2010. The defendant planned to demolish the existing temporary superstructure in the encroached portion and trying to construct a building in the encroached portion. Hence the appellant/plaintiff has filed the suit. The sole defendant filed written statement stating that during 1980 itself, defendant's father Gopal had put up a proper building in B schedule land, when the plaintiff's vendor was in occupation of the property. The plaintiff's vendor has put up a building (now existing) in the portion of the schedule land, leaving out the B schedule property. Neither the plaintiff nor his vendor has any right over the B schedule property and it is in continuous possession and enjoyment of the defendant and his forefathers. Ever since the plaintiff became neighbour, is causing trouble and mental agony to the defendant by lodging false complaint. The trial court upon hearing arguments of both sides and upon perusal of the oral and documentary evidence, decreed the suit as prayed for. Challenging by the judgment and decree passed by the trial court, the respondent/defendant has preferred an appeal in A.S.No.215 of 2012 on the ground that the suit is bad without a plea for declaration and the suit is barred by limitation. The Appellate Court though held that the defendant has encroached the property and he has not produced any document to show that he acquired the property by adverse possession, set aside the judgment and decree of the trial court on the ground that the suit is barred by limitation.

(3.) This Court while admitting the Second Appeal has framed the following substantial question of law.