Continuous possession and construction can establish property rights and influence the court's decision in property disputes.

JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree dated 15.06.2011 made in A.S.No.73 of 2009 on the file of the Principal Sub Court, Tirunelveli in confirming the judgment and decree, dated 21.07.2007 made in O.S.No.234 of 2003 on the file of the I Additional District Munsif Court, Tirunelveli.

1. Aggrieved over the concurrent findings of the Courts below decreeing the suit and dismissing the counter-claim by the defendant, the present Second Appeal is filed and the second appeal is pending in the notice of motion stage.

2. The parties are referred to as per their own ranking before the trial Court.

3. The brief facts leading to filing of the present Second Appeal are as follows:

3. (1). The plaintiffs' father, viz., Theivu Pillai and his brother viz., Ramasamy Pillai have partitioned the suit properties on 10.07.1964 and the properties were shown as A, B, C and D. The above said properties were allotted to Theivu Pillai and the northern portion was allotted to the defendant's predecessors viz., Ramasamy Pillai. After the partition, the buildings situated in the northern portion were allotted to Ramasamy Pillai. For that, owelty was paid by Ramasamy Pillai to Theivu Pillai. After the partition, both the parties agreed to declare the southern wall in door No.18 as a common wall. After a period of one year, the above said Theivu Pillai has also put up a construction in the I schedule property in bearing Door No.18A and also put up a stair-case to reach the above portion.

3. (2). The stair-case was fixed in the southern common wall from the year 1965 onwards. The said Theivu Pillai was enjoying the property as his own property and he has also perfected the title in respect of Item No.ABFE and the property was shown as ABFE. The plaintiff was residing in the ground floor and the fourth plaintiff was residing in the first floor. The defendant had purchased the property and after purchasing the property, the defendant had tried to demolish the common wall. Hence, the suit.

4. It is the contention of the defendant that when the defendant was far away from his native in the year 2003, the plaintiffs had put up a stair-case and in fact, the portion, in which, the stair-case was put up, was allotted to the defendant's predecessors. Hence, he pleaded a counter-claim to remove the stair-case by issuing a mandatory injunction.

5. The trial court has framed as many as eight issues.

6. On the side of the plaintiffs, P.W.1 was examined and Ex.A.1 to Ex.A.11 were marked. On the side of the defendant, D.W.1 to D.W.8 were examined and Ex.B.1 to Ex.B.14 were marked. Ex.X.1 to Ex.X.3 and Ex.C.1 and Ex.C.2 were also marked.

7. The trial Court declared the II item of the suit property in favour of the plaintiffs and also granted mandatory injunction in respect of the III item of the property in favour of the plaintiffs. However, dismissed the suit in respect of the III item for mandatory injunction and also dismissed the counter-claim prayed for by the defendant, as against which, the defendant has preferred an appeal before the First Appellate Court. The First Appellate Court also confirmed the judgment of the trial Court. As against which, the present Second Appeal is filed.

8. The learned counsel appearing for the appellant would mainly contend that Ex.A.2 / partition deed makes it very clear that the properties were clearly allotted. He would further contend that the northern portion was allotted to the defendant's predecessors and the southern portion was allotted to the plaintiffs' predecessors. The Commissioner's report and other aspects would clearly indicate that the plaintiffs are in possession of the more extent than original allotment. The plaintiffs have also not established when the stair-case was put up. Ex.A.3 cannot be given any importance to rely upon the plan. The Courts below without any evidence came to the conclusion that the staircase was put up in the year 1966. Therefore, it is subm