JUDGMENT :

(Prayer : The Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 31.10.2017 passed in A.S.No.59 of 2014 on the file of the III Additional Subordinate Judge, Coimbatore, reversing the judgment and decree passed in O.S.No.1918 of 1992 on the file of the III Additional District Munsif, Coimbatore.)

1. This Second Appeal has been filed against the judgment and decree dated 31.10.2017 passed in A.S.No.59 of 2014 on the file of the III Additional Subordinate Judge, Coimbatore, reversing the judgment and decree dated 25.03.2014 passed in O.S.No.1918 of 1992 on the file of the III Additional District Munsif, Coimbatore.

2. The unsuccessful defendant, who suffered concurrent findings before the Trial Court as well as the First Appellate Court in a suit for recovery of possession, is the appellant herein.

3. The parties are described as per their litigating status before the Trial Court.

4. The brief material facts that are necessary for adjudicating the Second Appeal are as hereunder: The plaintiffs claim to be owners of the suit property, having purchased the same under a Sale Deed dated 07.10.1974, from one Ranganathan. According to the plaintiffs, the suit property was purchased as a vacant site and after purchase, the plaintiffs put up construction of a house thereon. In the year 1988, the plaintiffs proposed alterations to the existing house and also obtained approval from the Panchayat in that connection. According to the plaintiffs, the 1st defendant was originally owning property adjoining the plaintiffs property, having purchased the same on 22.02.1981. The 1st defendant also put up a construction and was residing there. In the last week of May 1992, the plaintiffs demolished the rear portion of the house, in order to renovate the same. However, because of her ill-health, she could not carry out the alterations immediately. The defendants also chose to alter their property in and around August 1992 and taking that advantage of the plaintiff's absence, the defendants encroached to an extent of 5 ½ feet into the plaintiffs property, measuring 160 links, which was shown in a rough plan annexed to the plaint. As the 1st defendant refused to remove the unauthorized construction, the suit came to be filed, seeking removal of encroachments, in the nature of a wall and for delivery of possession of the encroached property to the plaintiffs. Pending the suit, defendants 2 and 3 have been impleaded, they having purchased the property from the 1st defendant.

5. The 2nd defendant filed a written statement which was adopted by the 3rd defendant. According to these defendants, the 1st defendant had put up construction only in his property and the defendants 2 and 3 have purchased the property from the 1st defendant on 08.03.1933 and 09.03.1933 respectively, for valid considerations and they have not encroached into the plaintiffs' property. The defendants 2 and 3 also stated that they are bonafide purchasers and their right and title to the property would not be affected in any manner and they were not obliged to remove the alleged encroachmet or deliver possession of encroached property to the plaintiffs.

6. The Trial Court decreed the suit, after taking into account the report of the Advocate Commissioner in Ex.C1 to Ex.C5. Aggrieved by the judgment and decree of the suit, the defendants 2 and 3 have preferred the First Appeal in A.S.No.59 of 2014 and the First Appellate Court dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the defendants 2 and 3 have preferred the above Second Appeal.

7. The above Second Appeal was admitted by this Court on 19.11.2019, on the following substantial questions of law:

i) Whether the Courts below are right in decreeing the suit for mandatory injunction based on the measurement when admittedly there is a discrepancy between the measurements and the extent of land conveyed under Ex.A1 and Ex.A2?

ii) Whether the Courts below