JUDGMENT :

(Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 28.08.2003 in A.S.No.18 of 1999 on the file of IV Additional Judge, City Civil Court, Madras, confirming the judgment and decree dated 14.03.1997 in O.S.No.2075 of 1987 on the file of XVII Assistant Judge, City Civil Court, Madras.)

1. The second defendant in the suit is the appellant. Against the concurrent finding of the Courts below, the present second appeal has been preferred.

2. The suit is in respect of pathway measuring North to South 4 feet and East to West 4 feet and further North to South 6.6 feet and East to West 56.6 feet, total extent of 385 sq.ft. in R.S.No.269/1, Door No.19 (known as Plot No.51), Hyder Garden II Street, cutting Krishnadoss Road, Perambur Barracks, Madras 600 012. The suit filed for declaration of Easementary Right of pathway, Mandatory Injunction to remove the wall constructed in the said passage and for Permanent Injunction not to put up further construction in the said passage.

3. The case of the plaintiff S.Chinnakolandai is that the entire extent of the plot bearing No.51, Hyder Garden II Street, Cutting Krishnadoss Road, Perambur Barracks, Madras is 1 ground and 894 sq.ft. Originally, the land was owned by Mrs.Safoora bi, who sold the property to Mr.Sambantha Mudaliar on 21.01.1960. Sambantha Mudaliar constructed a residential house in the back portion of the said plot lying on the west. During the life time of Sambantha Mudaliar, after retaining the house at the back portion of the plot No.51 measuring 1550 sq.ft., he handed over the vacant site of the front portion lying on the east measuring approximately 1260 sq.ft to the Cooks Road Depressed Classes Co-operative House Site Society Limited(hereinafter referred to as “the Society”). Later, in the year 1965, Sambantha Mudaliar received back an extent of 886 sq.ft in the front vacant portion of plot No.51 from the Society. Further, an extent of 385 sq.ft was left by the Society as a common passage for the beneficial use of the front and back portion land owners.

4. After the demise of Sambantha Mudaliar in the year 1967, his wife of Thaiyanayaki Ammal started constructing a house on the front portion of the plot. To meet out the expenses, she sold the back portion of the said plot to the plaintiff on 15.12.1976, wherein to have access to the road an area by 6 ½ x 56 ½ feet left as a 'common passage' for the beneficial use of front and back portion owners. The said passage is in use ever since Sambantha Mudaliar purchased the property in the year 1960 and the plaintiff continued to enjoy the passage from the date of his purchase in the year 1976. The said passage is the subject matter of the suit morefully described in “C” schedule of the plaint.

5. When the plaintiff came to know that the first defendant is intended to sell her property lying on the front portion of the plot No.51 to the second defendant, the plaintiff issued notice to the defendants on 31.10.1979 indicating his right in the common passage. However, despite the notice, the second defendant purchased the front portion of the plot No.51. In the year 1982, she attempted to put up construction in the common passage claiming that she has purchased the property from Thaiyanayaki Ammal including the portion earmarked as a common passage.

6. Hence, the plaintiff earlier filed a suit for declaration that the plaintiff is entitled to free and uninterrupted use of the common passage and consequential relief of injunction restraining the second defendant from putting up any construction of any sort in the passage. The said suit in O.S.No.2906 of 1982 while pending on the file of the City Civil Court, Chennai, the second defendant completed the construction of the wall in the passage reducing width of the passage by 3 feet 3 inches. So, the prayer seeking mandatory injunction for demolition of wall was made by way of an amendment.

7. The suit in O.S.No.2906 of 1