JUDGMENT

This Second Appeal has been preferred against the Judgment and decree dated 20.02.2013 in A.S.No.72 of 2012 on the file of the learned I Additional Subordinate Court,(Fast Track Court), Erode partly reversing the judgment and decree dated 03.04.2012 passed in O.S.No.385 of

2009 on the file of the Court of the Principal District Munsif at Erode.

2.The suit in O.S.No.385 of 2009 was filed by the respondent herein as against the appellant for the relief of permanent injunction, restraining the appellant from interfering with peaceful possession and enjoyment of the suit property. The relief also included an encroachment over the suit property and putting up construction. Pending the suit, an order of interim injunction was obtained, restraining the appellant from putting up any construction. Despite the order of injunction, the defendant proceeded with the construction, hence the plaintiff moved an amendment application, which was allowed by way of order dated 04.07.2011 in IA.No.3 of 2011 permitting addition of a prayer for mandatory injunction.

3.For the sake of convenience, the parties shall be hereinafter referred to as “plaintiff” and the defendant”.

4.The plaintiff's father obtained natham patta on 09.01.1992 in respect of the property situated in S.Nos.355/5 and 355/6 of Avalpoondurai Village, Erode Taluk and District. The defendant claims right over the property situated in S.No.355/4 of the same village. It is the case of the plaintiff that since she was residing far away from the suit property, the defendant took advantage of the same and is making efforts to put up construction by encroaching upon her suit property. The plaintiff traced her title to the natham patta dated 09.01.1992 and the settlement deed executed by the beneficiary of natham patta, namely, her father vide document dated 02.06.1992. The suit was presented on 15.07.2009 and by order, dated 20.07.2009 in IA.No.656 of 2009, an Advocate Commissioner was appointed, who visited the suit property and submitted a report as follows:

“thjpapd; ,lj;jpw;Fk; gpujpthjp flo; f;bfhz;oUf;Fk; g[jpa fl;olj;jpw;Fk; ,ilapy; 3 gg;ghsp kuk;. xU rpwpa ntg;g kuk; kw;Wk; brofs; fpHnkyhf ntypahf mike;Js;sJ“

5.The property of the plaintiff is situated to the north of the property of the defendant. In the suit property, three Papaya trees and one Neem tree and other trees were existing.

6.The Commissioner also noted that construction work had just commenced and construction materials had been laid in the area under survey. The report and plan submitted by the Advocate Commissioner have been marked as Exs.C1 & C2.

7. Pending the suit another application seems to have been taken out for reissue of warrant to the Advocate Commissioner, namely, Mr. V.P.Sankar Kumar in I.A.No.571 of 2010. The said Commissioner visited the suit property on two days, viz., on 31.01.2010 and 27.11.2010. On the basis of the second visit, a report was filed before the Court on 10.03.2011.

8. In the second report, the learned Advocate Commissioner noted that there was a live fence dividing the plaintiff's hut from the newly made construction of the defendant. During the second visit, he conducted the survey with the help of the surveyor. The survey sketch has been filed as Ex.C5. The report filed after second visit by the Commissioner as well as the Inspector of Survey found that the plaintiff's property is situated in S.Nos.355/5 & 355/6 and the defendant's construction having encroached upon the said area.

9.The parties went to trial. The plaintiff examined herself as PW1 and marked Exs.A1 to A6. On the side of the defendant, she was examined as DW.1, but there was no documentary evidence marked on her side. The Advocate Commissioner's report dated 24.07.2009 (filed after first visit) and the report filed after second visit dated 10.03.2011 were received together along with the report of the Inspector of Survey and marked the same as Exs.C1 to C5.

10.On the basis of the evidence and documents filed before t