JUDGMENT: The Second Appeal No.435 of 1989 has been filed against the judgment and decree in A.S.No.67 of 1987 on the file of the Additional District Judge, Coimbatore which in turn was filed against the judgment and decree in O.S.No.3575 of 1981 on the file of the District Munsif Court, Coimbatore.

2. The Second Appeal No.436 of 1989 has been filed against the judgment and decree in A.S.No.66 of 1987 on the file of the First Additional District Judge, Coimbatore which in turn was filed against the judgment and decree in O.S.No.799 of 1981 on the file of the District Munsif Court, Coimbatore.

3. The parties in both the appeals are same and the dispute is also in respect of the same property. In fact there was joint trial and common evidence were recorded in both the suits.

4. The suits were disposed of by a common Judgment so also the first appeals, hence these second appeals can also be disposed of by a common Judgment. For the sake of convenience this Court intends to deals with the matter with reference to the cause title given in S.A.No.436 of 1989.

5. The admitted facts between the parties can be narrated thus;

The first respondent is the son of the second respondent and they own the suit property among other properties. The plaint schedule property is a vacant site roughly an extent of 8 1/4 cents comprised in Survey No.298/1 in Ganapathy Town Panchayat, Coimbatore Taluk. On 27.6.1973 the second respondent herein agreed to sell the suit property to the first appellant at the rate of Rs.335 per cent and on the same day the sale agreement was reduced to writing and the second respondent received an advance amount of Rs.750 and in fact, the first appellant was also put in possession. As per the agreement the first appellant agreed to pay the balance of sale consideration to the second respondent and on receipt of the same the second respondent should execute the sale deed. On 16.7.1973 one Kandasamy Gounder, who is none else than the brother of the second respondent herein along with his wife filed a suit in O.S.No.1252 of 1973 on the file of the District Munsif Court, Coimbatore, against the first appellant and second respondent. The prayer in the suit was with reference to two items and one among being a plot of land 27 feet by 230 feet comprised in Survey No.298.

6. The grievance of the plaintiff namely Kandasamy Gounder in that case was that the first appellant and the second respondent were attempting to trespass in the portion of the northern side of the suit properties namely to a width of 27 feet north south to the entire east west boundary measuring 230 feet. The relief sought for in the said suit was to restrain the first appellant and second respondent by means of permanent injunction from encroaching to a width of 27 feet north south and 230 feet east west on the northern boundary and their share in suit Survey No.298.

7. It may be recalled that the property concerned in these present appeals are comprised in Survey No.298/1. The two properties namely Survey No.298 and 298/1 are adjoining properties. Along with the suit the plaintiff namely Kandasamy Gounder also filed I.A.No.915 of 1973 in the said suit under O.39, Rules 1 and 2 of the Civil Procedure Code praying the Court to grant an order of temporary injunction restraining the defendants in the suit namely first appellant and second respondent herein from in any way encroaching to a width of 27 feet north south and 230 feet east west on the northern boundary of his share (Kandasamy Gounder) in survey No.298. The learned District Munsif granted an interim injunction.

8. The first appellant herein issued a notice dated 16.12.1973 through his counsel to the effect that the second respondent namely Narayanasamy Gounder earlier when contacted agreed to settle the matter with Kandasamy Gounder and on that assurance, the first appellant spent about a sum of Rs.7,000 for putting up a superstructure and that however no steps had been taken by the second respondent to settl

Click Here to Read the rest of this document