Judgment.-The defendant who lost in both the Courts below is the appellant. The respondent filed the suit for a declaration of her title to the portion of the land shaded blue and marked DEFG in the plaint plan and for recovery of possession thereof and also for a permanent injunction restraining the appellant from interfering with her possession and enjoyment of the remaining portion of the suit property. The entire suit property is a land measuring about 10 grounds and 1900 sq. ft. in R.S. No. 3173|14, Block No. 55, Nadavakkam tank area in Purasawalkam. The blue shaded portion marked D.E.F.G. is in the southwestern corner of R.S. No. 3173/14. The respondent is the owner of R.S. No. 3173/14, as per the settlement deed Exhibit A-1, dated 11th June, 1962, executed by her mother Adiammal. She filed the suit alleging that the appellant trespassed into the D.E.F.G. portion of the suit land measuring 5 feet east-west and 63 feet north-south on 21st April, 1968 and that he was attempting to interfere with her possession and enjoyment of the remaining portion of the suit property.

2. The appellant is the owner of the western land bearing R.S. No. 3173 12, measuring 1 ground and 30 sq. ft. allotted to him by the Nammalwarpet Co-operative Housing Site Society. The defence was that as a member of the said society he was allotted that land and he had taken possession of the same and put up a brick built construction on the land allotted to him by the Society and is in undisputed possession of the property allotted to him by the Society. He denied that he had trespassed on any portion of the respondent’s land and contended that the understanding between himself and the said Society is that the latter should execute a sale deed in his favour after he completes payment of the value of the site in instalments and that the Society is therefore a necessary party to the suit.

3. Both the Courts have ‘found that there is encroachment by the appellant on a portion of land measuring 63 feet north-south and 4½ feet east-west on the southern side and 4 feet on the northern side, which has been coloured in the Commissioner’s plan Exhibit C-5 and that the said portion is part of R. S. No. 3175/14, belonging to the respondent. According to the Commissioner’s report and plan the appellant had put up an open latrine, a major portion of which is in the coloured portion in Exhibit C-5, a portion of the appellant’s main building, a portion of the platform, a major portion of a square well and a major portion of a stone used for washing clothes on the coloured portion in. Exhibit C-5.

4. The trial Court declared the respondent’s title to the coloured portion in Exhibit C-5 and granted a decree for delivery of vacant possession of that portion to. the respondent after removal of the aforesaid superstructures within two months and also a permanent injunction restraining the appellant from interfering with the respondent’s possession of the remaining portion in R.S. No. 3173/14 with costs. This decree has been confirmed by the learned Principal Judge, City Civil Court, Madras, who dismissed the appeal with costs.

5. The concurrent findings of the Courts below that the coloured portion in the Commissioner’s plan Exhibit C-5 forms part of R.S. No. 3173/14, belonging to the respondent and that the appellant has trespassed on that portion of the respondent’s property, are on questions of fact which cannot be gone into in this second appeal. But the question whether in view of the fact that the respondent had not taken any effective steps when the appellant had constructed a portion of his main building and a portion of the open latrine and sunk the square well and put up a portion of the platform and a major portion of the stone used for washing clothes on the coloured portion in Exhibit C-S and had not prayed for any mandatory injunction for the removal of these structures from the portion of the property, the possession whereof has been prayed for in the suit, she wo

Click Here to Read the rest of this document