V RAMALINGAM Vs. M SHENBAGAVALLI

JUDGEMENT

(1.) In seven months from now, this litigation will be two decades old. To be precise, this litigation commenced on 17.02.1999, when one M.Shenbagavalli filed a suit in O.S.No.152 of 1999 on the file of the 'Additional District Munsif's Court, Madurai Town', which shall hereinafter referred to as 'Trial Court' for the sake convenience and clarity. This suit was launched by M.Shenbagavalli against one V.Ramalingam, who is her neighbour and owner of adjoining/adjacent property. For the sake of convenience and clarity, parties shall be referred to by their respective ranks in the Trial Court. In other words, M.Shenbagavalli shall be referred to as 'plaintiff' and V.Ramalingam shall be referred to as 'defendant'. As mentioned <i>supra</i>, plaintiff and defendant are neighbours and owners of adjacent properties. It may be necessary to set out the sketch filed by the Advocate Commissioner in the Trial Court as well as the description of the suit properties in the plaint for the sake of clarity and specificity, with regard to the properties of the plaintiff and defendant and the issue. Description of the two properties as contained in the plaint are as follows:

(2.) Plaint in the Trial Court was predicated on the ground that the defendant has put up a latrine and bathroom measuring north-south 8, feet and east-west 1+ feet and that the defendant has also constructed a compound wall upto a height of 4 feet between 'A' and 'B' schedule properties, when the plaintiff was away. It is the specific case of the plaintiff that in putting up the aforesaid construction, when the plaintiff was away, the defendant has encroached 2+ feet east-west and 61s feet north-south on the east of plaintiff's property. Predicated on these averments, the prayer in the plaint is for mandatory injunction to remove the aforesaid alleged encroachment/offending construction and for a permanent injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of 'A' schedule property. Another prayer for permanent injunction restraining the defendant from putting up construction in future in the open space of 'A' schedule property on the east, also forms part of the plaint prayer. Usual prayer for costs and a residuary prayer limb also form part of the prayers in the plaint.

(3.) Defendant entered appearance and filed a written statement in November, 2001. In the written statement, the plea of the defendant is that there was an existing barbed wire fence between the 'A' and 'B' schedule properties even when the defendant purchased the property, defendant purchased the property after the plaintiff and that the defendant merely removed the barbed wire fence and put up a compound wall. Notwithstanding this plea, on a demurrer, the defendant took a stand that the plaintiff only has encroached upon the defendant's property.