JUDGMENT

The plaintiff is the appellant.

2.The plaintiff filed O.S.No.52 of 2010 before the Subordinate Court, Srivilliputhur for declaration that she is the absolute owner of the plaint second schedule property which is a wall and sought for consequential permanent injunction from in any way encroaching or doing any other construction in the plaint second schedule property. The plaintiff further prayed for a mandatory injunction to remove the encroachment over the second schedule wall as shown in the plaint fourth schedule property.

3.The trial Court partly allowed the suit granting declaration of title over the first and second schedule properties and consequential injunction for the said properties. The trial Court also granted permanent injunction in favour of the plaintiff that the defendant should not put up any construction or encroach over the second schedule property. However, the prayer with regard to mandatory injunction was rejected. As against the same, the plaintiff filed A.S.No.29 of 2018 before the Additional District and Sessions Court, Srivilliputhur. The learned Appellate Judge concurred with the findings of the trial Court and dismissed the appeal filed by the plaintiff. As against the same, the present second appeal has been filed by the plaintiff.

4.The plaintiff had contended that she is the owner of plaint first and second schedule properties. The defendant who is the adjacent owner had encroached upon the second schedule property which is a wall belonging to the plaintiff and she has inserted ½ feet of her property at the height of 25 feet in the suit second schedule wall and she has also put up 'RCC' tank in the said encroachment. Hence, the plaintiff prayed for declaration and permanent injunction for the second schedule property and for mandatory injunction for removal of the encroachment ( mentioned in the fourth schedule property) over the second schedule property.

5.The trial Court agreed with the contention of the plaintiff that the suit second schedule property is the exclusive wall belonging to the plaintiff and proceeded to grant a decree for declaration of title and permanent injunction in favour of the plaintiff over the second schedule property. The trial Court further found that since the second schedule wall is the exclusive wall of the plaintiff, the defendant is not entitled to put up any construction over the second schedule wall. Hence, the trial Court granted a decree for permanent injunction restraining the defendant from in any manner put up any further construction or encroachment over the second schedule wall. However, the prayer for mandatory injunction for removal of construction that have already been was rejected by the trial Court.

6.The trial Court relied upon the Advocate Commissioner's report to arrive at a finding that the width of the second schedule wall upto the first floor is 1 ½ feet and above the first floor, it is one feet.

The Court arrived at a finding that between the two walls of the plaintiff and the defendant, there is no gap. The trial Court also arrived at a finding that upon the exclusive wall of the plaintiff, the defendant has encroached upon to an extent of ½ feet and put up construction in the first floor. The trial Court also found that if the said wall is directed to be demolished, the building of the plaintiff would also get damaged. When the defendant has put up this encroached construction, the plaintiff was available in the town. During the construction, the plaintiff has not raised any objection. The parties were in talking terms and there is no enmity between the parties.

7.The trial Court also found that the defendant has recently purchased the suit schedule property and she might have been under the impression that the said ½ feet in the second schedule wall belongs to her. The plaintiff has also participated in the house warming ceremony of her neighbour namely the defendant. The construction has been completed around two years back before fili