A. PADMANABAN Vs. DEIVANAI AND OTHERS

JUDGEMENT

(1.) The plaintiff in the suit in O.S.No.645 of 2002 on the file of the Principal District Munsif Court, Karur is the appellant in this Second Appeal.

(2.) The appellant, as plaintiff, filed a suit in O.S.No.645 of 2002 on the file of the Principal District Munsif Court, Karur, for declaration that the plaintiff is the exclusive owner of the suit 'B' schedule property and for recovery of possession of suit 'B' schedule property. In the plaint, suit 'B' schedule property is described as part and parcel of the suit 'A' schedule property which is claimed to be the exclusive property of the plaintiff under a registered partition deed dated 03.07.2000. It is the case of plaintiff that the suit property and other properties originally belonged to one Mottaiyammal @ Palaniammal by virtue of a registered sale deed dated 13.08.1930 from the original owners. It is the further case of the plaintiff that after the demise of Mottaiyammal @ Palaniammal, her legal heirs have partitioned the properties under a registered sale deed dated 03.07.2000 and that in the said partition, the suit property was allotted to the plaintiff as 'C' schedule to the said partition deed. It is also the case of the plaintiff that the defendant was allotted the property which was described as 'A' schedule in the partition deed and that he has purchased the property that was allotted to one Papayee and others under the same partition by virtue of a sale deed dated 15.09.2000. The property allotted to the said Papayee and others was described as 'B' schedule in the said partition deed. The property purchased by the defendant is on the southern side of the property allotted to the plaintiff. It is stated that the defendant put up construction encroaching into the property allotted to the plaintiff to an extent of 36 sq. ft. (East-west 12 ft. North-south 3 ft.) which is described as suit 'B' schedule property. Though the plaint averments were disputed by the defendant, the fact that in the partition, the property originally owned by Mottaiyammal @ Palaniammal was allotted to the plaintiff, defendant and others is admitted. It is the case of the defendant that in the partition a 3 ft. lane was left by the parties on the western side of the whole property owned by the original owner, namely, their predecessor-in-title and that the defendant was compelled to file a suit in respect of the said common pathway in O.S.No.523 of 2002 as the plaintiff interfered with the enjoyment of this common pathway by other co-owners and that the present suit is only a counter-blast to the said suit with false and untenable allegations. It is the positive case of the defendant that the defendant never encroached any property that was allotted to the plaintiff. The defendant also contended that the suit plan filed along with plaint is not picturing the real existence of the lands allotted to the parties on ground.

(3.) The trial Court decreed the suit holding that the defendant has encroached an extent of 3 ft. north-south and 12 ft. east-west over the suit 'A' schedule that was allotted to the plaintiff in the partition deed which was marked as Ex.A2 in the suit. The findings of the trial Court is based on the Commissioner's report which indicates that if the property is measured from the southern side and taking into account an extent of 2 ft. 4 inches north-south on the north of road as the property belongs to the family, there is an encroachment on the southern portion of the property allotted to the plaintiff under Ex.A2. After the disposal of the suit, the first defendant died and the respondents in this appeal filed an appeal in A.S.No.7 of 2011 on the file of the Principal Sub Court, Karur. During the pendency of appeal, the respondents also filed an application in I.A.No.37 of 2011 under Order 41, Rule 27 for reception of additional documents. However, the said petition was dismissed by the lower appellate Court. After considering the facts and evidence available on record, the lower appellate Court allowed the appeal in favour of the defendant and set aside the judgment and decree of the trial Court in O.S.No.645 of 2002. The appellate Court found that the property if measured from the northern boundary, the plaintiff is enjoying the property that was allotted to him in the partition under Ex.A2 and that there is no encroachment by the defendant in respect of any portion of the property that was allotted to the plaintiff.