UMAPATHY Vs. GOPALAKRISHNAN

JUDGEMENT

(1.) THIS Second Appeal has been filed against the judgment and decree made in A.S. No.58 of 1997, dated 29.8.2003, on the file of the Principal Sub-Court, Tirunelvelli reversing the judgment and decree made in O.S. No.443 of 1988, dated 27.1.1997, on the file of the Principal District Munsif, Tirunelvelli.

(2.) THE Gist and essence of the averments in the Plait is as follows: THE plaintiff is the owner of the house in T.S. No.471, in ward No.1, Block No.2 of Tirunelvelli Municipality. He purchased the same along with a dilapidated house from Avudaiyammal by way of sale deed dated, 13.8.1976. THE first defendant is the owner of the house in T.S. No.469 situate on the east of the plaintiff's house. In between the plaintiff's house and the defendant's house, a Common Muttam lies in T.S. No.470 and that the said Muttam is common to the first defendant and the vendor of the plaintiff. THE plaintiff purchased the half right in the said Muttam from Avudaiyammal by means of a sale deed, dated 17.2.1988 and the said Muttam has been described in the schedule of property. In the last week of February 1988, the first defendant has, taking advantage of the absence of the plaintiff from Tirunelvelli, constructed two walls, one on the southern side of the schedule Muttam and another in the western portion of the same. By construction of these two walls, the first defendant had completely prevented the plaintiff from using the common Muttam. Having come to know about the illegal construction, the plaintiff approached the first defendant and asked him to remove the offending walls. THE first defendant agreed to remove the walls; but he has failed to do so. Hence, the plaintiff is constrained to file a Suit for declaration that the schedule Muttam is a common one belonging to the plaintiff and the defendant and for mandatory injunction directing the defendants to demolish the walls marked as "ABAC" in the rough plan. Since the defendant has raised the plea of non-joinder of necessary party. THE second defendant is impleaded as party, since the property stands in her name. Hence he prayed for a decree as prayed for.

(3.) THE gist and essence of the averments in the additional written statement of the first defendant is as follows: THE staircase is an old and dilapidated one and it was reconstructed. At the time of reconstruction, a Commissioner was appointed and he inspected the site for local inspection and at that time, out of respect to the Court, the construction was stopped on the advise of the Advocate. So there is no new construction regarding the staircase and it was in existence even in the year 1972, when the second defendant purchased the house. So there is no case for demolition of the staircase. Hence, he prayed for the dismissal of the Suit.