JUDGMENT :

T.V. THAMILSELVI, J.

1. This second appeal has been filed to set aside the Judgement and decree made in A.S No.13 of 2024 on the file of Subordinate Judge, Rasipuram, dated 24.09.2024 confirming the Judgment and decree dated 30.01.2024 made in O.S No.83 of 2010 on the file of the District Munsif Court, Rasipuram.

2. For the sake of convenience, the parties are referred to as per their rank cited in the Original Suit. The appellant herein is the 1^st defendant and the respondents 1 to 4 herein are the plaintiffs in the original suit.

3. The brief facts of the case are as follows:

(i) The case of the plaintiffs is that the suit property belongs to their grand father Late Duraisamy. vide Sale Deed dated 29.05.1978. After his demise, the plaintiffs’ father ie. D. Jayapal who was the 1^st plaintiff in O.S No.83 of 2010 and the plaintiffs were enjoying the suit property in S.No.430/15 to an extent of 675 sq.ft which is located at Singalanthapuram Village, Rasipuram Taluk, and Namakkal District. To reach the house in the suit property from East West Raja Veethi, there is 6.6 feet (2 meters) breadth lane running South to North. The said lane is common lane which was used by land owners of residing in both sides of lane. The common lane starts at a stretch of 6.6 feet breadth on the southern side and narrow down to 3.3 feet. (1 meters) in S.No.430/2016. But, the 1^st defendant who is the neighbour having the suit property on the eastern and western side of the common lane, had constructed her house and encroached 2 feet in the Eastern side common lane by putting up staircase 5 ½ feet above the ground to the length of 6 feet thereby the staircase is protruding in the common lane. Further, 1^st defendant started digging up 7 feet foundation pit to an extent of 22.5 feet length in the Western side common lane thereby encroaching near about 2 ½ feet. Therefore, the plaintiffs raised objection with regard to the encroachment of the common lane. Hence, plaintiffs/the respondents 1 to 4 herein have filed the suit in O.S. No.83 of 2010 seeking for declaration and for mandatory injunction directing the 1^st defendant to remove the encroachment made in the common lane in S.No.430/16.

(ii) The first defendant in the Written statement has stated that as per the document, the first defendant’s predecessor had constructed their house within their measurement, after settlement deed in her favour and further she demolished the house and built a terrace house east and west of the disputed lane in the year 2003. The plaintiffs have acquired only the right to use the intervening lane. The 1^st defendant did not encroach on the lane and constructed the house.

4. On the basis of pleadings of both sides, the Trial Court framed the following issues for Trial:

1. Is the suit property description correct?

2. Is it correct that the South-North lane leading from East West Rajaveethi to the plaintiff’s property is a common lane with a width of 2 meters in the south and one meter in the north? 3. Does the first defendant encroach on the common lane?

4. Does the suit have a cause of action?

5. Is it correct that the defendants two and three are unnecessary parties?

6. Are the plaintiffs are entitled to relief as claimed in the suit?

7. What are the other remedies available to the parties?

5. During the course of trial, on the side of Plaintiffs, P.W.1 and P.W.2 were examined and Ex.A1 to Ex.A7 were marked. Through P.W1, Ex.B1 and Ex.B2 were marked through cross examination of P.W1. The 1^st defendant did not adduce oral evidence on her side. The witness documentary evidence is marked Ex.X1. The Advocate Commissioner was also appointed and the Report and plan of the Advocate Commissioner were marked as Ex.C1 to Ex.C3.

6. Based on the Commissioner reports marked as Ex.C1 and Ex.C2, and Ex.B2, the Trial court, vide Judgment and Decree dated 30.01.2024, allowed the suit on the following ground:

(i) As per the Ex.B1-Partition Deed, the 1^st defendant is claiming the right over the e