JUDGMENT

The plaintiff is the appellant.

2. The plaintiff filed a suit for declaration of title, recovery of possession and mandatory injunction. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.94 of 2019 before the Sub-Court, Manamadurai. The learned Subordinate Judge was pleased to dismiss the appeal. As against the same, the present second appeal has been filed by the plaintiff.

3. The plaintiff has contended that he has purchased the suit schedule properties under Exhibit A.1 on 04.06.2004 from one Easwari. According to the plaintiff, the east-west measurement of the said property is 24 carpenter cubic feet and north-south measurement of the said property is 32 carpenter cubic feet having a total extent of 768 square feet.

4. The plaintiff has contended that immediately to the east of the property purchased under Exhibit A.1, there is a 3 feet common pathway, running in the north-south direction. According to the plaintiff, the defendant's house is located to the east of the said pathway. The plaintiff has contended that the defendant has not only encroached upon the pathway, but also in the suit schedule property, which forms part of the property purchased by the plaintiff under Exhibit A.1. The plaintiff has contended that the property purchased by him under Exhibit A.1 is located in survey No.108/4. Hence, the plaintiff prayed for declaration of title and recovery of possession over 1 ¾ cents, which falls within Exhibit A.1-sale deed. The plaintiff further prayed for mandatory injunction for the removal of the alleged encroachments made by the defendant in the common pathway. 5. The defendants filed a written statement contending that the plaintiff has purchased only survey No.108/4, whose east-west measurement on the northern side is 19 ½ feet and on the southern side it is only 12 ½ feet. According to the defendant, the common pathway is located in survey No.108/5, which is on the eastern side of the plaintiff's property. To the further east of the common pathway, the defendant's property is located in survey No.108/13. According to the defendant, he has neither encroached over the common pathway in survey No.108/5 nor in the plaintiff's property in survey No.108/4.

6. The defendant has further contended that the suit schedule properties belong to his wife, namely, Velu Ammal and all the revenue records stand in her name. The defendant pleaded that the suit is bad for non-joinder of his wife Velu Ammal.

7. The trial Court after consideration of oral and documentary evidence, arrived at a finding that the plaintiff has not established his title over the suit schedule properties. The trial Court also relied upon the Commissioner's report, according to which, there is no encroachment in the common pathway or in the property belonging to the plaintiff. The trial Court also found that the suit is bad for non-joinder of the defendant's wife, namely, Velu Ammal. Based upon the said findings, the trial Court dismissed the suit.

8. The First Appellate Court concurred with the findings of the trial Court based upon Exhibits A.1 and A.2-documents filed on the side of the plaintiff. The First Appellate Court also relied upon the Commissioner's report to arrive at a finding that the defendant has not put up any construction beyond his survey number. The First Appellate Court further found that the suit is bad for non-joinder of Velu ammal, who is the wife of the defendant. As against the concurrent findings, the plaintiff has filed the above appeal.

9. The learned counsel for the appellant raised various grounds contending that the Courts below have erroneously arrived at a conclusion that the plaintiff has not established his title and possession over the suit schedule properties. Hence, he prayed for admission of the second appeal.

10. Per contra, the learned counsel for the respondent contended that the defendant has raised a specific plea in para 6 of the written statement that the suit is bad for non-joinder of