The doctrine of acquiescence does not apply when a party timely asserts their rights against encroachment, even if there are no immediate objections to the construction.

JUDGMENT

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The Second Appeal is directed against the judgment and decree made in A.S.No.4 of 2002, dated 25.11.2002, on the file of Subordinate Judge, Devakkottai, modifying the judgment and deree made in O.S.No.25 of 2000, dated 31.7.2001,on the file of District Munsif, Devakkottai.

2.The plaintiff in the suit is the appellant. The suit was filed seeking permanent injunction restraining the defendant from demolishing the sunshades and windows in the northern main wall of the plaintiff’s house and for injunction restraining the defendant from putting up any construction on the sunshades and windows of the plaintiff.

3.The defendant filed a counter claim seeking declaration of his title in respect of the portion of the property in which the northern main wall of the plaintiff stands and also for mandatory injunction to remove the construction of the plaintiff together with sunshades.

4.The trial Court dismissed the suit and partly allowed the counter claim by directing the plaintiff to remove the sunshades in his northern wall and to close down the windows in the northern main wall. The trial Court also directed the plaintiff to pay the defendant the value of the defendant’s land encroached by the plaintiff while putting up his northern wall. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal before the First Appellate Court. The First Appellate Court affirmed the dismissal of the suit, however, the decree granted by the First Appellate Court directing the plaintiff to pay the value of the encroached portion to the defendant, was set aside. The First Appellate Court confirmed the decree passed by the trial Court directing the plaintiff to remove the sunshades and to close down the windows in his northern wall. Aggrieved by the same, the plaintiff has come forward by way of this Second Appeal.

5.According to the appellant/plaintiff, he purchased the property with east-west measurement of 100 ft and north-south measurement of 24 ¾ fet in T.S.No.116, situated in Raghunathapuram West Street, Block No.4, Devakkottai. After purchase of the said property as a vacant site, on 11.10.1999, the plaintiff put up a west facing house thereon. In the northern main wall of the plaintiff, there are three big windows and three small windows.The defendant owns a row of house on the northern side of the plaintiff’s property. After the plaintiff occupied the newly constructed house, the defendant issued a notice as if the plaintiff had encroached 1 ¾ feet on the southern line of his property and requested the plaintiff to remove the encroachment.The plaintiff issued a reply denying the allegation contained in the defendant’s notice. Since the defendant made an attempt to remove the sunshades and windows, the suit was filed for the relief of injuction as prayed for.

6.The defendant filed a written statement and claimed that he purchased the property with an east-west measurement of 100 ft and north-south measurement of 66 ft in T.S.No.116 situated at Raghunathapuram West Street. It was claimed by the defendant that he put up a compound wall leaving a two feet lane on the sourthern side of his property. The plaintiff purchased the property which lies on the further south. It was also claimed by the defendant that taking advantage of his absence in the locality, the plaintiff encroahed the southern portion of the two feet lane on the south of his compound wall and put up his northern main wall and projected his sunshades towards his property. Therefore, the defendant in his counter claim sought for declaration of his title over the property in which the northern wall of the plaintiff situate and also for mandatory injunction to remove the offending construction and encroached portion of the defendant property.

7.Before the trial Court, the plaintiff was examined as P.W.1 and his father was examined as P.W.2. On behalf of the plaintiff, 14 documents were marked as Ex.A1 to Ex.A14.The defendant was examined as D.W.1 an