J U D G M E N T

Aggrieved over the concurrent findings of the Court below, the plaintiff has preferred the above Second Appeal.

2. For the sake of convenience, the parties are called as per their rank in the suit.

3. The unsuccessful plaintiff is the appellant before this Court. The plaintiff filed a suit for declaration of title over the B schedule property, possession and for mandatory injunction to remove the encroachment and the wall constructed on the B schedule property.

4. It is relevant to state that the B schedule property is an integral part of the A schedule property. The A schedule property was purchased by the brother of the plaintiff on 09.12.1987. There was an oral partition between the plaintiff and his brother and the plaintiff had constructed the house on the northern side and his brother constructed house on the southern side of A schedule property. The plaintiff's share lies on the south side of the defendant's property. According to him, he had left a lane with 5 feet breadth on the northern side. This was encroached by the defendant and the lane was reduced to 2 feet from 5 feet breadth. Aggrieved over the same, he issued notice and filed a suit for declaration and mandatory injunction.

5. The defendant, denying the averments made in the plaint, would contend that the property of the defendant is an ancestral one and it existed even before the purchase of A schedule property by the defendant's brother. There is no such 5 feet lane left by the plaintiff and in fact, the defendant left 2 feet passage on the southern side of the property which is the northern boundary of the plaintiff.

6. The trial Court framed appropriate issues and decreed the suit in favour of the plaintiff. On appeal, the lower appellate Court reversed the findings of the trial Court for want of proof of encroachment.

7. Aggrieved over the same, the plaintiff has filed the above second appeal. The same was admitted on 07.10.2014 and the following substantial questions of law were framed for consideration:

“a) Whether the plaintiff is entitled to the relief as prayed for with respect to the “B” schedule property when the plaintiff established his title over the “A” schedule property and when “B” schedule property forms part of “A”

schedule property?

b) Whether the defendant is entitled to more extent with measurements as stated in Ex.B1 and B2 sale deeds when lesser extent and measurements have been stated in the previous title deed Ex.A3?”

8. According to the learned counsel for the plaintiff, it is categorically admitted that Ex.B1 and Ex.B2 are the sale deeds of the defendant. The defendant claims title through Exs.B1 and B2 sale deeds, dated 14.07.1997 and 11.08.2006, wherein, it is mentioned that the property is 30 yards in length and 6 yards in breadth. 1 yard is equal to 3 feet. Thus, the measurements of the defendant's property is 90 feet x 18 feet, whereas, the defendant, as DW1 in his evidence, has admitted that he is possessing the property measuring 90 feet x 22 feet. Therefore, it is the case of the plaintiff that the excess land possessed by the defendant is the B schedule property is the one which was encroached by him. The trial Court had also finding lesser measurement in Exs. B1 and B2 decreed the suit in favour of the plaintiff. According to him, the findings of the lower appellate Court without adverting to Ex.A3 sale deed of the plaintiff's brother and Ex.B1 and Ex.B2, sale deeds of the defendant for a lesser extent is erroneous and liable to be set aside. He would also contend that the defendant himself admits the title of the plaintiff to the A schedule property, he is estopped from denying title of the plaintiff with respect to the B schedule property, which is an integral part of the A schedule property.

9. Per contra, learned counsel for the defendant would vehemently contend that the plaintiff has drastically failed to prove the encroachment by marking the measurement of the property. It is categorically admitted by the p