JUDGMENT

The Second Appeal has been directed against the Judgment and Decree dated 18.09.2014 in A.S. No. 9 of 2012 on the file of the Principal Sub Court, Kumbakonam, Thanjavur District, confirming the judgment and decree made in O.S.No.595 of 2005 dated 31.01.2012 on the file of the learned District Munsif, Kumbakonam, Thanjavur District.

2. For the sake of convenience, the parties are referred to their respective position, as before the Trial Court.

3.The case of the plaintiff, as per the averments made in the plaint, in short, is as follows :

The plaintiff is residing in the Thirucherai Village in Kumbakonam Taluk, Thanjavur District. The property belonged to her husband and it is 100 years old. After the death of her husband, the plaintiff and her daughter are the absolute owner of the property. Since the daughter of the plaintiff is residing outstation, she is not impleaded as party to the suit. This case is being contested as joint owner. The defendant have a thatched house in the southern side of the plaintiff's house, which was constructed 25 years ago by the predecessors of the defendants and before that it was a vacant site. The plaintiff and the defendants property belongs to “Thirucherai Saranatha Perumal Kovil Devasthanam”. After getting permission from the Devasthanam, they constructed the house in the said place and residing there. The plaintiff predecessors have been enjoying the said house backyard and in the same way, the defendants and their predecessor were residing in the said place. The plaintiff or the defendant or any other person in the said area has not paid any Kist to the “Thirucherai Saranatha Perumal Kovil Devasthanam”. The plaintiff filed a VAO certificate to prove that she in possession and enjoyment of the house as well as the backyard of the house. She has also filed a sketch showing the plaintiff house and the back yard which is shown in green colour and the defendant house and the backyard in red colour. The plaitniff property situated in S.No.168/8 and the defendant property in S.No.168/9. In between both the properties, there is a small lane, which is shown in blue colour. The S.Nos.168/8 and 168/9 included the said blue line, which is shown as ABCD. In between the plaintiff and defendants property, there is a lane, 5 feet breath and 130-1/2 feet length, which is disputed place . In the said property, both the plaintiff and the defendants are enjoying the same commonly. The plaintiff or the defendant cannot have a right to construt or fence the property. Rain water from the roof of both the plaintiff and the defendant will flow through the said land and it will reach the lake area. The plaintiff is using the same to reach the backyard and the repair the plaintiff southern area and to repair the defendants northern side wall. The plaintiff also produced tax receipts to prove her ownership . The defendant also used to raise some dispute and he will close the the said lane by fencing. He will also tie his cattle in the area and utilizing the said area for dumping unwanted materials. The photos were also filed and the plainitff has also given police complaint before the Nachiyar kovil police station and the plalintiff also removed the said fencing as well as the waste materials dumped. Water from both houses flow only on the said lane and it has been used by both the parties. The defendant put up the fence and tied his cattle in the dispsuted area, when the plaintiff went out of station. Due to which, the southern side compound wall has been damaged. On 08.09.2009, the plaintiff requested the defendant to remove the encroachment made by the defendant. But the defendant was trying to construct the compound wall. Hence, she has filed the suit.

4.Resisting the claim made by the plaintiff, the defendant filed a written statement contending among other things that the boundaries and measurement given in the description of the property are denied and it is not correct. The plantiff is also not entitl