JUDGMENT :

Aggrieved over the concurrent findings made in O.S.No.179 of 1996 on the file of the learned District Munsif, Kovilpatti and in A.S.No.239 of 1998 on the file of the learned Subordinate Judge, Kovilpatti, the appellant, who is the defendant in the suit filed this second appeal.

2. Before the trial Court, the plaintiffs, namely, respondents 1 to 3 herein, filed the suit as against the defendant/appellant herein, seeking the following reliefs:

(i) for declaration, declaring that the suit second schedule property is the absolute property of the plaintiff;

(ii) to grant injunction, restraining the defendant from interfering with their enjoyment of the suit second schedule property; and,

(iii) to grant mandatory injunction, directing the defendant to remove the construction made in the second item of the suit property.

3. The learned District Munsif, Kovilpatti, by Judgment and Decree dated 12.08.1997, held that the plaintiffs have proved their cases and ultimately, granted a decree in favour of the plaintiffs as prayed for.

4. Aggrieved over the said findings, the appellant herein filed an appeal in A.S.No.239 of 1998 before the learned Subordinate Judge, Kovilpatti. The learned Subordinate Judge, Kovilpatti, in its Judgment dated 04.02.1999, confirmed the findings arrived at by the learned District Munsif, Kovilpatti and dismissed the appeal in entirety.

5. Feeling aggrieved over the same, the appellant/defendant is before this Court with this second appeal.

6. For the sake of convenience, the parties are referred to as, as described before this Court.

7. The averments made in the plaint, in short, are as follows:

(i) In earlier, on 20.06.1919, the suit property was purchased by Arunachala Konar, who is the paternal grandfather of the first plaintiff. The said Arunachala Konar died, after leaving one Mahalinga Konar and Karuppa Konar as his legal heirs. Thereafter, the said Karuppa Konar died in the year 1965, after leaving the second plaintiff as his legal heir. Subsequently, in the year 1969, the said Mahalinga Konar also died after leaving the first and third plaintiffs as his legal heirs.

(ii) The plaintiffs' house is situated on the northern side of a vacant site of one Madasamy Konar and a pathway. In the suit first item of the property, the plaintiffs, by putting up the waste materials, enjoyed the same. The first item of the property is a vacant site. By taking advantage of the fact that the plaintiffs are residing in outstation, the defendant, on 15.05.1996, encroached the property measuring to an extent of 12 feet on the southern side of the first item of property and constructed a wall. Even after complaining the same before the Police, the defendant did not obey the instruction given by the police officer. Hence, the suit.

8. The averments made in the written statement, in short, are as follows:

The plan appended with the plaint is not having any correct measurement. On the eastern side of the first item of the property, there is no pathway as alleged by the plaintiffs. The said Arunachala Konar was not having any absolute right in the suit first item of the property. Without mentioning the measurement in respect of the land, the suit filed by the plaintiffs is not maintainable. It is not correct to say that the first schedule property is a vacant land. It is not correct to say that the defendant dug a pit in the B schedule property and constructed a house. The report and plan filed by the Advocate Commissioner proved that the alleged wall was constructed in three different stages. At the time of filing the suit, the construction made by the defendant was entirely completed. The land pertaining to the defendant was purchased by him with due consideration. In the year 1968 itself, the defendant constructed the wall and in the year 1991, the said wall was raised by further five feet. Therefore, the relief prayed by the plaintiffs is barred by limitation. Hence, the suit is liable for dismissal.

9. Based on the above plead