P.R. Shivakumar, J.

1. The plaintiff in the original suit is the appellant in the second appeal. She filed the suit for declaration, mandatory injunction and recovery of possession. The learned trial Judge, after trial decreed the suit with cost granting the reliefs of declaration and mandatory injunction and dismissed the suit in respect of the prayer for recovery of possession. As against the said decree of the trial court dated 22.10.2003 made in O.S. No. 234/1998, the defendant preferred an appeal in A.S. No. 28/2006 on the file of the lower appellate court (Sub court, Pudukottai). The learned lower appellate Judge allowed the appeal in part, confirmed the decree of the trial court regarding the relief of declaration, set aside the decree in respect of the relief of mandatory injunction and dismissed the suit in respect of the mandatory injunction also. As against the said decree of the lower appellate court dated 31.08.2006, the plaintiff in the original suit has preferred the present second appeal on various grounds set out in the Memorandum of grounds of second appeal.

2. The second appeal was admitted on 07.08.2009 noticing the following to be the substantial question of law involved in the second appeal:

"Whether the learned Subordinate Judge is correct in refusing to grant the relief of mandatory injunction while admittedly declaration is granted?"

3. The arguments advanced on both sides were heard. The judgments of the Courts below and the records sent for from the courts below were also perused.

4. The case of the appellant in the second appeal/plaintiff in brief, is, as follows:

(i) The suit property, namely a land measuring east-west 37' and north-south 72' comprised in old S. No. 226/4A4 and New S. No. 228/2A4B1 having an extent of approximately 6 cents, within the defined boundaries along with a tiled shed measuring 6' x 15' situated on the south-eastern corner of the said property and other properties originally belonged to Saradha @ Saradhambal and the suit property at that point of time was only a vacant site. From 1971, the plaintiff occupied the said property and started enjoying the same constructing a house on a portion and using the rest of the extent as land appurtenant to the building.

(ii) While so, on 29.03.1993, the appellant herein/plaintiff purchased the land from Saradhambal under a sale deed for valuable consideration. The respondent/defendant did not have any title or right in respect of the suit property. However, on 17.10.1996, the respondent/defendant encroached upon a portion of the suit property and put up a tiled shed with mud walls occupying a portion measuring 15' x 6'. The efforts made by the plaintiff to prevent the encroachment by approaching the police proved futile. Thereafter, the plaintiff issued a Lawyer's notice on 31.10.1996 for which the respondent issued a reply dated 27.11.1996 containing false and untenable averments. Several areas comprised in the suit survey number had been sold to others and the purchasers are in possession of those portions and they have put up their residential houses therein. At no point of time, the defendant purchased the suit property by any oral sale. In any event, the plaintiff has perfected title by adverse possession. Hence the title of the plaintiff in respect of the suit property should be declared, the defendant should be directed by a mandatory injunction to remove the constructions put up by him and hand over possession of the encroached portion after such removal of the superstructure to the plaintiff.

5. The suit was resisted by the respondent herein/defendant making the following contentions:

One Somasundara Pandaram had filed a suit in O.S. No. 243/1998 against the defendant for the relief of permanent injunction. The said suit was filed based on his contention that the entire extent of 34 cents comprised in S. No. 226/2A4B1 was leased out to the defendant on 19.10.1993. The south-east portion of the suit property measuring 6' x 15'