JUDGMENT

The 1st appellant, who is defendant in the suit in O.S. No. 1057 of

2012, which was filed by the respondent/plaintiff herein against her for the relief of declaration in respect of 'B' schedule property, which form part and parcel of 'A' schedule property claimed as absolute property of plaintiff, in which the defendant encroached a portion, which is shown as 'B' schedule property.

2. For the sake of convenience, the parties are denoted as per the ranking in the suit before the trial court.

3. Before the trial court, both parties have adduced oral and documentary evidence, however, the defendant not entered into witness box, but on the side of defendant, D.W.1 to D.W.3 were examined and Ex.B1 letter was marked. On the side of plaintiff, P.W.1 and P.W.2 were examined and Ex.A1 to Ex.A14 were marked.

4. Considering submissions of both sides, the trial judge framed issues and finally held that as per the Commissioner report, the plaintiff is able to establish that the defendant encroached the portion of 'A' schedule property, which is absolutely belongs to plaintiff. On the contrary, the defendant had not shown that she is entitled to the said 'B' schedule portion by way of adverse possession nor produced any relevant document to prove her enjoyment. Aggrieved over the findings of trial judge, the defendant preferred an appeal in A.S.No.81 of 2011 before the Sub-Court, Vellore, wherein the first appellate judge independently analysed all the facts and evidence and finally held that the defendant has not established her claim of adverse possession, on the other hand, the plaintiff proved that 'B' schedule property was encroached by the defendant, which is form part and parcel of 'A' schedule property, thereby confirmed the findings of trial judge and accordingly, the first appeal was dismissed.

5. Challenging the concurrent findings of courts below, the defendant preferred this Second Appeal. The learned counsel for appellant argues that both the courts below failed to see that from the evidence of P.W.1, it is made it clear that even on the date of purchase made by him, the defendant has put up construction in the suit property and living there, but without considering the same both the courts below erroneously decreed the suit in favour of plaintiff, as such is erroneous one and the same is liable to be set side. The learned counsel for appellant also argues that both the courts below failed to appreciate that there is existence of superstructure in the suit property and the same is under her enjoyment. Therefore, the learned Sub- Judge ought to have accepted the claim of defendant as if she perfected her title by way of adverse possession. But without appreciating all those facts, both courts below erroneously decreed the suit based on the Commissioner's report, as such is perverse and the same is liable to be set aside. Accordingly, this Second Appeal is admitted on the following substantial question of law :-

“1) Whether the suit as framed without the relief of mandatory injunction is maintainable in law?

2) When the plaintiff having not pleaded when the encroachment was made by the defendant and having admitted not only possession of suit property, but also the existence of superstructure even prior to his purchase, still is the learned Subordinate Judge right in negativing the relief of adverse possession pleaded by the defendant?

3) When the plaintiff admittedly kept quite for over 20 years in approaching the Court whether the suit as framed is maintainable on the ground of delay, latches and equitable estoppel?”

6. The case of plaintiff is that he purchased 'A' schedule property on

16.05.1997 from one Gopal, who is son of Thulakkanam. The said Thulakkanam was the original vendor and he has purchased the property on 01.07.1926 from one Gangammal. Thereafter, as a vacant site, the plaintiff purchased the property and he put up a construction and left a portion of property vacant on the southern side for his convenient enjoym