ANNAMALAI PILLAI (DIED) Vs. ARIYAMALAI AMMAL (DIED)

JUDGEMENT

(1.) The deceased respondent / plaintiff filed the suit in O.S. No. 377 of 1979 for the relief of permanent injunction in respect of the suit lane. The Trial Court dismissed the suit, against which, the deceased respondent / plaintiff filed A.S. No. 18 of 1990 and the same was allowed setting aside the Judgment and decree passed by the Trial Court and ultimately the suit was decreed as prayed for, which was also confirmed in the second appeal. The respondents filed the present execution petition alleging that the petitioners put up tiled roofing over the east-west wall on the north of the suit property, the door way filter point and boring pipe over the suit property. The Court below allowed the petition directing the petitioners to remove the said encroachments within one month, failing which, arrest will be ordered. Aggrieved over the said order, the present revision has been filed.

(2.) Pending the revision petition, at the instance of both sides, Mr. M. Saravanan, Advocate, was appointed as Commissioner to find out whether there is any encroachment in the suit property and whether encroachment was made during pendency of this revision and also to note down the physical features of the suit property. After inspection, the Commissioner submitted his report stating that the petitioners made encroachments by putting up constructions in the first floor and in the second floor protruding into the suit property.

(3.) The learned counsel for the petitioners would submit that the respondents got only the decree of permanent injunction, but not the mandatory injunction. The structures mentioned in the petition were made by the petitioners during the pendency of the suit and appeal proceedings. The bore-well and bore pipes are not in the suit property. The Court below without considering the same has allowed the execution petition. Thus, he prayed to set aside the order passed by the Court below.