The central legal point established in the judgment is the requirement for a party to provide sufficient evidence of exclusive possession to support a claim for injunction over disputed property.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.43 of 2007, dated, 30.04.2008 on the file of the Subordinate Court, Ambasamudram, in so far as it is against the appellant is concerned partly allowing the judgment and decree passed in O.S.No.113 of 1988, dated 11.11.2003 on the file of the District Munsif Court, Ambasamudram.)

1. The 2nd plaintiff is the appellant herein.

2. The plaintiffs filed a suit for mandatory injunction for removal of the encroachment on the eastern side of the 1st schedule property. The plaintiffs further prayed for permanent injunction, not to disturb their possession and enjoyment over items 1 to 4 of the suit schedule properties. The trial Court had granted a decree for permanent injunction with regard to the 1st schedule property. But dismissed the suit with regard to mandatory injunction in the 1st schedule property and the prayer for items 2 to 4. The 2nd plaintiff filed A.S.No.43 of 2007 before Subcourt, Ambasamudram. The learned Subordinate Judge confirmed the decree and judgment of the trial Court with regard to items 1 and 2. However, reversed the judgment and decree of the trial Court with regard to items 3 and 4 and granted a decree for permanent injunction in favour of the plaintiff with regard to items 3 and 4 of the suit schedule properties. Aggrieved over the disallowed portion, the 2nd plaintiff has filed the above second appeal.

3. The plaintiff had contended that the suit schedule properties belonged to Thiruvavaduthurai Adheenam and plaintiff and others have taken the site on lease from the Adheenam and enjoying the same after putting up construction over the property.

4. The plaintiff had further contended that he has created usufructuary mortgage in favour of his daughter as per Exhibits A.1 to A.4 with regard to items 1 to 4 and he is in possession and enjoyment of the same. According to the plaintiff, the 1st defendant has encroached in the 1st item of the suit schedule property and he has constructed a compound wall. The plaintiff further contended that at the instigation of the 1st defendant, defendants 7 to 11 are disturbing the possession of the plaintiff in items 2 to 4 of the suit schedule properties. Hence, the present suit.

5. The defendants 1 and 5 filed a written statement contending that the 1st defendant has constructed the compound wall only within his property and there is no encroachment into the property of the plaintiff. That apart, the defendants have further contended that the constructions were made long back and the present suit has been filed after so many years and hence, the same is barred by limitation. The defendants have further contended that the plaintiff's daughter was never in possession or enjoyment of the suit schedule properties and Exhibits A.1 to A.4 have been created only for the purpose of filing the suit. The defendants have further contended that the 2nd item was never in the possession and enjoyment of the plaintiff. The defendants have further claimed that they are in possession and enjoyment of the 2nd item. The defendant have further contended that the 2nd item is in common enjoyment of defendants 1 to 11 as their backyard and hence, the plaintiff cannot claim permanent injunction alleging that he is in exclusive possession of the 2nd item.

6. The trial Court after consideration of the oral and documentary evidence originally by a judgment and decree, dated, 11.03.1991 had granted a decree for permanent injunction with regard to 1st item. But dismissed the prayer for mandatory injunction for the 1st item. With regard to the prayer for schedules 2 to 4, the trial Court had dismissed the suit. As against the same, the plaintiff had filed A.S.No.279 of 1992 before Sub-court, Ambasamudram. The learned Subordinate Judge had allowed the appeal and remitted the matter back to the trial Court for fresh consideration of the prayer of the plaintiff with regard to items