JUDGMENT

S.N. Variava, J.-This Appeal is against a Judgment dated 30th April, 1998.

2. Briefly stated the facts are as follows:

The 2nd Respondent was the owner of properties bearing Survey No. 7/232 (New) as well as Survey No. 7/229 (New). On 27th February, 1973 the 2nd Respondent sold Survey No. 7/232 (New} to the Appellants. The Sale Deed mentioned the area to be 3341 sq. ft. and also gave certain descriptions of the said property.

3. On 30th April, 1973 the 2nd Respondent sold Survey No. 7/229 (New) to the 1st Respondent. This Sale Deed mentioned that the said property was of an area of 512 Sq. ft. and also gave measurements, of the property.

4. The sale deeds of both the parties mentioned that they had right of ingress and aggress over an open passage which was to the West of the property sold to the Ist Respondent. On 30th October, 1974 the 1st Respondent executed a Release Deed relinquishing all his rights except a right of passage in the open space.

5. The 1st Respondent after purchasing the property put up some additional constructions on the property. The Appellants sent a notice dated 22nd November, 1974 calling upon the 1st Respondent to remove the construction put up by him. On receipt of this notice the 1st Respondent unilaterally cancelled the Release Deed dated 30th October, 1974.

6. The 1st Respondent then filed Suit No. 183/75 for a permanent injunction against the Appellants for preventing him from using the open space. An interim injunction was granted in that suit.

7. On 29th March, 1975 the Appellants filed Suit No. 512 of 1975 for declaration that the 1st Respondent had encroached upon the land belonging to the Appellants and praying for possession of the same. The Appellants also claimed easementary rights of light and air and an easementary right to have water from the roof of his house flow into 1st Respondent s property. The Appellants thus prayed for a permanent injunction restraining the 1st Respondent from closing the drainage outlet and obstructing the passage of light and air of the Appellants. The Appellants also claimed compensation from 2nd Respondent for shortfall in delivery of land, if it was found that there was a shortfall. This claim has admittedly been given up and had not been pressed.

8. Both the suits were tried jointly. A common Judgment dated 30th April, 1979 was delivered. In the Suit filed by the 1st Respondent it was held that the 1st Respondent could only claim such rights as were reserved under the Release Deed dated 30th October, 1974. In the Suit filed by the Appellants it was held that the Appellants were entitled to recover 258sq. ft. encroached by the 1st Respondent. The Appellants were also granted the permanent injunction restraining the 1st Respondent from blocking the drainage and against stoppage of light and air.

9. The 1st Respondent preferred two Appeals bearing Nos. 190 of 79 and 191 of 79 against the common Judgment. By a Judgment dated 20th December, 1980 the District Judge remanded the matter back to the Trial Court to determine the question of encroachment by appointing a Commissioner and to consider whether there was any easementary right. The 1st Respondent filed an Appeal against the order of remand. The Appeal was dismissed by the Madras High Court on 6th April, 1983.

10. Pursuant to the directions given in the Order dated 20th December, 1980 the Trial Court appointed a Commissioner to find out encroachments. The Commissioner visited the suit property several times and conducted an elaborate enquiry. The Commissioner submitted a Report to which reference will be made subsequently.

11. The trial Court again decreed the Suit on 30th July, 1993 and held that there was an encroachment to the extent of 338 Sq. ft. The Trial Court held that there was blockage of rain water outlet and obstruction of light. The Trial Court directed delivery of possession of 338 Sq. ft. and directed removal of obstruction of drainage of water and of light.

12. The 1st Respondent