Point of Law: When a relief for mandatory injunction is prayed in the suit for removing any structures, proving of such structures within the specific description of boundaries and measurements is essential.

JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of C.P.C against the judgment and decree of the First Appellate Court passed in A.S.No.97 of 2008 dated 07.12.2009 on the file of Principal Sub Judge, Chengalpattu, by confirming the judgment and decree of the District Munsif cum Judicial Magistrate, Thirukkalukundram in O.S.No.25 of 2003 dated 31.10.2008.)

1. This Second Appeal has been preferred against the judgment and decree of the First Appellate Court passed in A.S.No.97 of 2008 dated 07.12.2009 on the file of Principal Sub Judge, Chengalpattu, by confirming the judgment and decree of the District Munsif cum Judicial Magistrate, Thirukkalukundram in O.S.No.25 of 2003 dated 31.10.2008.

2. The plaintiffs are the appellants herein.

3. The short facts of the case is that the suit property belongs to the plaintiff and they are in possession and enjoyment of the same. The suit property is a vacant site under the maintenance of the plaintiffs and they used to remove the bushes periodically. Patta for the suit property is issued in the name of the plaintiffs in Patta No.2102. The defendants are the relatives of the plaintiffs. The 1st defendant is the paternal uncle of the plaintiff and the 2nd defendant is the son of the 1st defendant. They have their property adjacent to the plaintiffs property. Without the knowledge of the plaintiffs the defendants put up a compound wall in the suit property in the year 1997 which is shown as ‘A B C D’ in the suit plan. They have also fixed an electricity meter box in the compound wall. When the plaintiffs requested them to remove the compound wall and the electricity meter box, they refused to do so. The plaintiffs tried to take steps through the revenue authorities and the electricity department. Since the defendants continued to deny to remove those constructions, the plaintiffs have filed this suit for mandatory injunction directing the defendants to remove the compound wall which was shown as ‘A B C D’ in the plaint plan and remove the electricity box and also for permanent injunction to restrain the defendants from anyway altering the physical features of portion shown as ‘C D E F’ in the plaint plan. During the pendency of the suit, the 1st defendant died and defendants 3 to 7 have been added as legal representatives of the deceased 1st defendant.

4. The short facts of the written statement filed by the 1st defendant is as under:

The plaintiffs are not entitled to any relief as claimed by them. The defendants have encroached the suit property in the year 1934 and reclaimed it. The suit property is known as Kallankuthu poramboke land. The defendant has put up hay-rick on the suit property. They are also having their motor mechanical shed there. In between the shed and the suit property, a small portion has been let out to 3rd parties. The defendant has kept granite stone in line around the suit site as a compound wall and the same was admitted by the defendants themselves. The plaintiffs have neither title nor possession over this suit property. An extent of 4 cents of Gramanatham in survey No.51/1 was purchased in the name of the plaintiffs father Thirukkamu Naicker, who is in his capacity as the Manager of the joint family under a registered sale deed dated 11.07.1960. In the said sale deed the survey No. has been wrongly mentioned as Survey No.48/8 instead of 51/1 in the suit property. The suit property has been shown as the Eastern boundary and the name of the defendant is shown as the owner of the properties on the eastern side. The said 4 cents purchased in Survey No.51/1 fell to the share of the 1st defendant in a family oral partition. The family oral partition was later reduced into writing on 20.07.1961 and the suit property is shown in it as ‘B’ schedule. The plaintiffs father, plaintiff and his sisters have already filed a suit in O.S.No.14/90 before the District Munsif Court, Chengalpattu in respect of 0.06 cents in old survey No.48/17. In that suit the western bou