The main legal point established in the judgment is that the Court upheld the validity of the judgments and decrees of both the Courts below, which ordered the removal of the encroachment made by the defendants in the common pathway based on authentic documents.

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.07.2008 made in A.S.No.50 of 2007 on the file of the Principal Sub Court, Tenkasi, in confirming the judgment and decree dated 16.02.2007 made in O.S.No.194 of 2004 on the file of the District Munsif Court, Shencottah.)

1. This second appeal is focussed by the defendants challenging the judgment and decree dated 29.07.2008 passed in A.S.No.50 of 2007 on the file of the Principal Sub Court, Tenkasi, in confirming the judgment and decree dated 16.02.2007 passed in O.S.No.194 of 2004 on the file of the District Munsif Court, Shencottah.

2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

3. Broadly, but briefly, the relevant facts absolutely necessary for the disposal of this second appeal would run thus:

The plaintiffs filed the suit seeking the reliefs to the effect that the defendants should remove the encroachment made in the common pathway on the main ground that the pathway found described in the schedule of the plaint is the one meant for the use of both parties; however, the defendants high-handedly started putting up the staircase encroaching a portion of the common pathway; whereupon the plaintiffs were constrained to file the suit.

4. Per contra, the defendants in a bid to challenge and impugn the averments in the plaint filed the written statement, the gist and kernel of it, would run thusly:

There was no encroachment in the suit pathway. The description of the suit property as found set out in the plaint was not correct. The construction put up by the defendants, was not forming part of the said common pathway. The village map would exemplify and demonstrate that the extent of the common pathway was only 5 1/4 feet and not 2 1/2 C.C. (Carpenter Cubit). Accordingly, he would pray for the dismissal of the suit.

5. Whereupon, the trial Court framed the relevant issues.

6. During trial, P.W.1 was examined and Exs.A.1 to A.3 were marked on the side of the plaintiffs. D.W.1 was examined and Ex.B.1 was marked on the side of the defendants.

7. Ultimately, the trial Court decreed the suit, as against which the defendants filed the appeal for nothing but to be dismissed by the first appellate Court.

8. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the present second appeal has been focussed by the defendants on various grounds and also suggesting the following substantial questions of law:

"1. Whether the Lower Courts are correct in accepting and acting upon Ex.A.1 and Ex.A.2 even without proper Pleadings or Proof?

2. Whether the assumption by the Lower Courts as to the Validity and Entitlements of Old Documents is correct and in accordance with law?

3. Whether the Suit for Mandatory Injunction is maintainable in law without a Prayer for Declaration?

4. Whether the Courts below are correct and justified in arriving at a finding of Encroachment and whether it is legally correct or sustainable?

5. Whether or not the Suit is Bad for not seeking the relief of Recovery of the allegedly lost Possession?

6. When the offending constructions have been already put up whether the Plaintiff is justified in seeking its Removal having not raised any objections earlier?

7. Even assuming that there is Encroachment whether the Lower Courts have considered as to what is the proper Remedy to be granted?

8. Whether the Lower Court are correct in considering Damages in lieu of Mandatory Injunction as per the judicial Principles and Pronouncements and whether the Lower Courts are correct in Ordering the Removal of the Steps?"

(extracted as such)

9. The dictum laid down by the Honourable Apex Court in the following decisions:

(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.

(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 and

(iii) State Bank of Ind