The Court emphasized the importance of consistent evidence, lack of objections, and absence of cloud upon title in property disputes.

R. Tharani, J.

Heard Mr.V.Meenakshisundaram, learned counsel appearing for the appellant and Mrs.J.Ananthavalli, learned counsel appearing for the respondents.

2. This appeal is filed to set aside the Judgment and Decree dated 07.02.2015 passed in A.S.No.89 of 2014 on the file of the Principle Sub Court, Madurai confirming the Judgment and Decree dated 06.03.2014 passed in O.S.No.377 of 2008 on the file of the District Munsif Cum Judicial Magistrate Court, Vadipatti.

3. The respondents herein are the plaintiffs and the appellant herein is the defendant in the suit. The respondents herein has filed a suit in O.S.No.377 of 2008 against the appellant herein that the appellant has encroached upon the property of the respondents praying for permanent injunction and for mandatory injunction.

4. The case of the plaintiff/respondents herein is that the suit property in Survey No.117/4 with a total extent of 44 cents belonged to the respondents herein. The respondent herein purchased the property on 29.05.1995 from one R.K. Ganeshram and Others. He purchased 4 cents in the same Survey number along with another property in Survey No.120/B2 from one Velusamy on 08.08.2005. The appellant herein is the owner of Survey No.117/1A. The appellant herein encroached upon the property by altering the furrow now and then. The respondents measuring the property with the help of Surveyor and the Surveyor after issued notice to the appellant measure the property and it was found out that the appellant has encroached 5 cents of land. The respondents filed the suit for permanent injunction and for removal of encroachment.

5. The case of defendant/appellant is that the appellant herein never encroached upon the property of the respondents and the appellant herein has purchased the land in Survey No.117/1B2 from one Ganeshram in the year 1991. Only on presumption, the respondents are raising an imaginary claim.

6. The respondents herein have examined 2 witnesses and marked 8 documents. The appellant herein examined three witnesses and marked 5 documents.

7. In the grounds of appeal, the learned counsel appearing for the appellant raised five issues, which are reads as follows:

"(a) when there is no details about the measurements of alleged encroachment in the plaint schedule except plaint rough plan, whether the Courts below are correct in decreeing the suit for mandatory injunction?

(b) whether the Courts below are correct in decreeing the suit for mandatory injunction based upon Advocate Commissioner's report and plan in Exhibit C1 and C2, more particularly when there are contradiction about the measurement of alleged encroachment between Exhibit C1, C2 and Exhibit C3, C4 and hence the judgment and decree of the Courts below warrants interference under Section 100 of civil procedure code?

(c) whether the Courts below are correct in ignoring the contradiction between first Commissioner's report and plan (Exhibit C1, C2) and the second Commissioner's report and plan (Exhibit C3, C4) and decreed the suit as prayed for in the plaint and thus the Court below warrants interference under Section 100 of civil procedure code?

(d) when a cloud is raised upon the title of the plaintiff's regarding the suit schedule property, whether suit for mandatory injunction is maintainable without prayer of declaration?

(e) whether the Courts below are correct in interpreting the recitals of Exhibit B1 and Exhibit B3 for deciding the title of the defendant?"

8. This Court has framed three issues in this appeal, which reads as follows:

"(a) when there is no details of alleged encroachment whether the decree in the suit for mandatory injunction is acceptable?

(b) The matter to be decided in question Nos.1, 2, 3 and 5 are the same. Whether the court below are correct in decreeing the suit, based upon the Advocate Commissioner's reports and plan in Exs.C1 and 2 when there are contradiction between the measurements in Exs.C1 and C2 and Exs.C3 and C4?

(c) when there is a cloud raised upon