R.S. RAMANATHAN, J.

Second Appeal No. 74 of 2007

1. The unsuccessful plaintiff is the appellant in the Second Appeal. The appellant filed the suit in O.S. No. 289 of 2003 on the file of the District Munsif, Bhavani for declaration that the appellant Municipality is the absolute owner of the suit property shown as “ABCD” in the rough plan and praying for consequential permanent injunction restraining the defendant, his men and agents from in any way putting up further construction over the suit property shown in the plan as “ABCD” and for mandatory injunction directing the defendant to remove the encroachment and to deliver possession of the suit property shown in the plan as “ABCD” to the appellant Municipality. The suit was in respect of the property situate in T.S. No. 2/1 and 2/2 in Bhavani Sub-Registration District, Bhavani Taluk and Bhavani Municipal Limit and the encroached area is ad measuring 6.40 Metre North-South, measuring an extent of 0.77 cents as shown in the plaint plan marked as Ex.A.1. The learned trial Judge partly decreed the suit holding that the appellant Municipality is entitled to the suit property in T.S. No. 2/1 and dismissed the suit in respect of the suit property in T.S. No. 2/2 holding that the appellant failed to prove that the property in Survey No. 2/2 wherein the disputed portion marked as “ABCD” in Ex.A.1 situate in T.S. No. 2/2 belongs to the Municipality, declined to grant the relief of injunction and mandatory injunction and also delivery of possession of the property in respect of T.S. No. 2/2, the portion marked as “ABCD” in the Rough Plan Ex.A.1. Aggrieved by the same, the appellant filed A.S. No. 7 of 2005 on the file of the Subordinate Court, Bhavani and the learned First Appellant Judge concurred with the findings of the learned trial Judge and dismissed the Appeal and aggrieved by the same, the present Appeal is filed by the appellant.

2. The case of the appellant/plaintiff in brief is as follows:-

The suit property in T.S. No. 2/1, T.S. No. 2/2 in Block No. 27, Bhavani Town, absolutely belongs to the plaintiff/appellant and the defendant/respondent purchased the property situate on the eastern side of the suit property under three sale deeds. The defendant/respondent is the owner of Survey No. 2/3 and he has no right over the property in T.S. No. 2/2 and the disputed property shown as “ABCD” in Ex.P.1 is situate in Survey No. 2/2. It belongs to the plaintiff/appellant. The defendant was granted permission to put up construction in his property by the plaintiff but the defendant encroached upon the road belonging to the plaintiff/appellant and put up construction and therefore, by order dated 30.09.2003, the planning permission given to the defendant was cancelled and explanation was called for from the defendant and without giving proper explanation, the defendant filed W.P. No. 28430 of 2003 on the file of this Court and obtained interim orders. According to the plaintiff, the extent of property encroached upon by the defendant is having an extent of 336 sq.ft (0.77 Cents) and it belongs to the Municipality and the defendant encroached upon the same and put up construction and therefore, the suit was filed for the relief stated above.

3. The defendant contested the suit stating that he purchased the property under three sale deeds Exs.B.5, B.6 and B.7 and those properties are situate east of the road and as per his sale deeds, the western boundary is shown as 12 feet Municipal road and the defendant did not encroach upon 12 feet of municipal road. It is further stated that under three sale deeds, the total extent of property purchased by the defendant was 2785 sq.ft., and in the year 1987, the defendant constructed a building after getting permission from the Municipality and on 31.7.2003, the defendant wanted to demolish the existing building and put up a new building and applied for planning permission and that was also granted by the Municipality and that planning permission