M RAMALINGAM Vs. N THANGAVELU

JUDGEMENT

(1.) Defendant in O.S. No. 369 of 1992, on the file of Subordinate Judge's Court, Thanjavur, is the appellant. Suit filed by the plaintiff is one for declaration of title, recovery of possession and for mandatory injunction directing the defendant to remove all constructions, pipes and other obstructions in the suit property, and for consequential reliefs.

(2.) The material averments in the plaint are as follows:

(3.) In the written statement, the title of the plaintiff was disputed. It is said that since he is not a party to the partition suit, the decree is not binding on him. Again, since the plaintiff did not take possession pursuant to the final decree, he cannot be said as enjoying the property. It is further said that long before the institution of the suit, there was a boundary separating the two properties of plaintiff and defendant. Before the institution of the suit, he applied to the local Authority to get licence for putting up construction. After inspection, licence was granted. Plaintiff who is a local resident, was a passive on looker and never protested to the construction being made. He spent more than Rs. 70,000 for the construction. In paragraph 4, it is further said that ten years before institution of the suit, there was a separating fence between the two properties, and on the side of the fence, he has planted coconut saplings. After removing, some of the coconut saplings, the construction was made. Since the plaintiff did not object to the construction, he proceeded with the construction. Regarding the plan filed along with the plaint, it is said that the same does not represent the real state of affairs and the same cannot be accepted. The mandatory injunction sought for in the plaint should not be granted. He said that in case the Court finds that he has encroached into the plaintiff's property, he is prepared to pay compensation, and the construction was made bona fide.