The plaintiff's long possession and evidence of encroachment warranted relief despite the absence of a title declaration, while the defendant's claims were unsubstantiated.

JUDGMENT :

K.GOVINDARAJAN THILAKAVADI, J.

1. The above second appeal arises out of the judgment and decree dated 31.07.2023 made in A.S.No.24 of 2023 on the file of Sub Court, Sirkali, confirming the judgment and decree dated 25.10.2021 made in O.S.No.261 of 2012 on the file of the District Munsif Court, Sirkali

2.The case of the plaintiff is that the suit 'A' schedule property situated in S.Nos.35/2 and 35/1, was purchased by the plaintiff by virtue of a registered sale deed dated 14.07.1983. The plaintiff is in possession and enjoyment of the suit property from the date of purchase. The plaintiff is also possessing other properties adjacent to the suit property. The plaintiff, in order to prevent cattle and men from entering into the lands, has fenced the suit property and other properties and enjoying the same for the past 29 years. The defendant is having small extent of land on the western side of the suit property. While so, the defendants made attempts to survey the lands, with an intention to remove the above fence. Hence, the plaintiff issued a legal notice on 27.10.2012 questioning the same. On 10.12.2012 again the defendants attempted to remove the fence and encroach upon the suit property. Hence, the plaintiff was constrained to file the above suit. While so, on 20.03.2017 the defendant encroached upon the 2^nd item of the suit property to an extent of 14 cents and re-fixed the fence towards south of the suit property. The portion encroached by the defendant is shown as 'B' schedule property in the suit schedule which is comprised in S.No.35/1B. Hence, the plaintiff prays for permanent injunction in respect of 'A' Schedule property and for recovery of possession in respect of 'B' schedule property.

4.The claim of the plaintiff was resisted by the defendant stating that the description mentioned in the suit schedule property is incorrect. The defendant has mortgaged his lands to the plaintiff. The plaintiff thereafter cultivated the lands through his agent. While so, the plaintiff insisted the defendant to sell his land which was refused by the defendant. The plaintiff has encroached 14 cents of land belonging to the defendant. Hence, the defendant took appropriate steps to measure the property. Aggrieved by this, the plaintiff has filed the above suit with an intention to grab the property of the defendant. It is further submitted that the defendant has never encroached upon the property of the plaintiff as claimed in the suit. It is further submitted that the plaintiff has wrongly stated the extent of the 2^nd item of the suit property as 78 cents. In fact, in the mortgage deed dated 29.07.2002, executed by the defendant in favour of the plaintiff. The extent of land is clearly mentioned as 1 acre 14 cents. At the time of discharging of mortgage, the plaintiff encroached 7 cents of land belonging to the defendant on the eastern side of the plaintiff's lands. On 08.11.2012 the defendant lodged a complaint before the Police Station and only thereafter, the plaintiff filed the above suit. Hence, the defendant prayed for dismissal of the suit.

5.The trial Court, based on the above pleadings, materials on record and the arguments advanced by the respective counsel for the parties, decreed the suit in favour of the plaintiff. Aggrieved by this, the defendant preferred the appeal suit in A.S.No.24 of 2023 and the first Appellate Court after re-appreciating the evidence on record dismissed the appeal suit. Hence, the present second appeal is preferred.

6.The second appeal is admitted on the following substantial questions of law:

“A. Whether Courts below are correct in la