N TAJUDDIN Vs. MALAR KODI AMMAL

JUDGEMENT

(1.) Challenge in this second appeal is made to the judgment and decree dated 16.03.2004 passed in A.S.No.20 of 2003, on the file of the Subordinate Court, Panruti, reversing the judgment and decree dated 28.08.2003 passed in O.S. No.49 of 1996, on the file of the District Munsif Court, Panruti.

(2.) Suit for declaration, possession and permanent injunction.

(3.) The case of the plaintiff, in brief, is that he had purchased the A schedule property consisting of two items, by way of a sale deed dated 11.04.1983 and since then, it is the plaintiff, who has been in possession and enjoyment of the said property and also acquired title to the same by way of adverse possession on account of continuous enjoyment. To the north of the A schedule property, the defendant has purchased a house and garden and on the back portion of the house of the plaintiff and the defendant, there is garden and there is no fence existing in between the plaintiff's garden and the defendant's garden and there are two latrines, one on the side of the plaintiff's garden and another on the side of the defendant's garden and having common septic tank and there were three coconut trees on the back of the plaintiff's garden and due to misunderstanding, the defendant filled up the debris in the common septic tank without any right and knowledge of the plaintiff and in respect of the same, the plaintiff issued a notice to the defendant through his lawyer on 16.06.1995 and to the same, the defendant sent a reply on 19.07.1995, containing false allegations and on account of the dispute between the parties regarding the enjoyment of the garden portion, the defendant wanted to construct a compound wall between the plaintiff's garden and defendant's garden and accordingly, the plaintiff advised the defendant to measure the garden by a qualified surveyor and raise the proposed compound wall and the defendant also agreed to the same. All of a sudden, the defendant with the help of her men, attempted to dig foundation with an intention to raise compound wall by encroaching about 3 feet south north into the plaintiff's garden and also attempted to cut the three coconut trees lying on the plaintiff's garden. The plaintiff had been resisting the unlawful action of the defendant and also preferred a police complaint and inasmuch as the defendant by way of filing a caveat petition, had unlawfully trespassed into the plaintiff's garden portion as described in the B schedule, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs as regards the B schedule property.