The main legal point established is that the evidence of patta and other relevant documents under the Tamil Nadu Occupants of Kudiyiruppu (conferment of ownership) Act, 1971, can be crucial in determining encroachment and possession disputes.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of C.P.C against the judgment and decree of Principal Sub Court, Mayiladuthurai, dated 15.03.2007 made in A.S.No.133 of 2006, confirming judgment and decree of Principal District Munsif Court, Mayiladuthurai dated 14.09.2006 made in O.S.No.335 of 2005.)

(The case has been heard through video conference)

1. The suit for recovery of possession and mesne profit, the Trial Court granted the relief of recovery of possession of the suit property mentioned in “A” schedule except 2 feet East-West from the eastern tip of the gobar gas well in “D” schedule and leave to recover the mesne profit by separate proceedings.

2. On appeal, the trial Court judgment was confirmed. The aggrieved defendant as appellant is before this Court, challenging the concurrent findings.

3. The brief facts leading to the Second Appeal are as below:-

The plaintiff and the defendants are neighbouring land owners which original belong to a Temple. The ancestors of the parties have occupied the land and had constructed house in the respective land they are in occupation. “A” & “B” properties morefully described in the plaint schedule are the property in enjoyment of the plaintiffs. The plaintiff are sons of Narayanasamy Pillai. For “A” schedule property Natham patta was issued to Narayanasamy Pillai. For “B” schedule property, the natham Patta is given to the 1st plaintiff Jayaraman. The plaintiffs father Narayanasamy Pillai was assigned patta for S.No.107/45. The 1st plaintiff was assigned patta for S.No.107/46. The defendants are residing on the north of plaintiff’s property. They were assigned patta for the land in S.No.107/44 on the west of plaintiff’s property. In the year 1996, the defendant erected gobar gas well on the backyard of the defendant. To facilitate the erection, the defendant removed the live fence running along the western boundary of the plaintiff’s land. For erecting the well, the defendant encroaching upon 2 ½ feet into the plaintiff’s land. Thereafter, slowly started to encroach upon the plaintiff’s land by destroying the live fence. He entertaining doubt, the plaintiff’s measured the land with the help of surveyor and found that the defendant has encroached upon the “A” & “B” schedule property. The area of encroachment in “A” schedule property and “B” schedule property was about 210 sq.ft each. The encroached area marked as ‘BGHIFB’ in the sketch of the plaint. When the surveyor measured the land on 19.08.2005, the defendant was present and he was asked to remove the encroachment including the gobar gas well. Then the village elders advised not be disturb the gobar gas well constructed, encroaching 2 ½ feet of the plaintiff’s land. Instead, the defendant was asked to pay the costs for the encroached land where the well is erected and handover the remaining portion of the encroached land. The defendant refused to accept the settlement proposed by the villager elders. Hence, the suit.

4. Before the Trial Court, the plaintiff examined three witness including the Advocate Commissioner, who visited the field and submitted his report and sketch. 3 Exhibits were marked as Ex.A.1 to Ex.A.3 and 4 other Exhibits were marked as Ex.X.1 to Ex.X.4. On behalf of the defendant three witnesses and 8 documents were marked.

5. The Trial Court, after considering the natham patta issued by both the parties, the sketch available in the patta besides the Advocate Commissioner’s report held that the defendant has encroached upon the plaintiff’s land on the western side. The gobar gas well is on the encroached portion. However, the gobar gas well was found to be erected in the year 1988 and suit filed belatedly. So mandatory injunction to remove the gobar gas well construction on the encroached portion not granted. In respect of the other portion, barring the gobar gas well, the defendant ordered to handover the vacant possession within two months time.

6. Aggrieved by the judgment, the 1st defendant filed Firs