JUDGMENT

The defendants in O.S.No.86 of 2006 on the file of the District Munsif, Melur are the appellants in this Second Appeal. The suit was filed for the relief of mandatory injunction to direct the defendants to remove the suit pipe shown as “C2” in the rough sketch and for other reliefs. The defendants filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial court framed the necessary issues. The 1st plaintiff, Ramachandran examined himself as P.W.1. Ex.A1 to Ex.A8 were marked. The 2nd defendant, Munna Malaiyandi examined himself as D.W.1, while one Pandi was examined as D.W.2. Ex.B1 to Ex.B4 were marked. After consideration of the evidence on record, the trial court by judgment and decree dated 26.03.2008, dismissed the suit. Challenging the same, the plaintiff filed A.S.No.85 of 2008 before the I-Additional Sub Court, Madurai. By the impugned judgment and decree dated 28.07.2009, the first appellate court reversed the decision of the trial court and partly allowed the appeal. Challenging the same, this Second Appeal came to be filed.

2. The Second Appeal was admitted on 09.03.2022 on the following substantial question of law:-

“Whether the first Appellate Court is correct in granting mandatory injunction when the plaintiff himself admitted that the defendants have put up their house 15 years back and as such claim of mandatory injunction is barred by limitation?”

3. During the pendency of the appeal, the 1st appellant passed away. However, there was no necessity to take steps because the 2nd appellant, who is her legal heir, is already there on record.

4. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial question of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial court.

5. Per contra, the learned counsel appearing for the respondents submitted that the impugned judgment and decree do not call for any interference.

6. I carefully considered the rival contentions and went through the evidence on record. The suit property is a common pathway comprised in S.No.115/87-C in Vandiyur Village and measures 4 feet x 39.7 feet. The suit property originally belonged to one Seeni @ Periya Karuppan Ambalam. The 1st plaintiff was born to the said Seeni @ Periya Karuppan Ambalam through his first wife. The 1st defendant is the 2nd wife of Seeni @ Periya Karuppan Ambalam, while the 2nd defendant was born to him through the 2nd wife. Partition took place on 28.02.1977 and the family properties were divided. The certified copy of the registered partition deed was marked as Ex.A1. There is no dispute that the suit property is a common pathway.

7. The grievance of the plaintiff is that the defendants have unauthorisedly and without getting their permission installed a pipe described as “C2” so as to reduce the width of the common pathway. The defendants pleaded that the suit pipe has been virtually affixed on their wall and that it does not affect the right of the plaintiffs to use the common pathway in any manner. The defendants also denied that they have any intentions to dig borewell in the common pathway.

8. Now the only question that arises for consideration is whether the suit pipe described as “C2” has to be removed or not. While the trial court held that the same need not be removed, the first appellate court came to the conclusion that it is liable to be removed.

9. The learned counsel appearing for the appellant contended that the prayer for mandatory injunction is clearly barred by limitation because the house was put up some 15 years ago and that the pipe line is only on their eastern wall. This contention does not have any force for the simple reason that the suit was filed in the year 2006 only for the removal of the pipe and nothing else. Admittedly, the pipe was laid only in 2006. Even permission from th