BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.04.2024 CORAM THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A.(MD)No.573 of 2008 Maragatham Ammal ...Appellant -Vs-

1.Habib Rehman

2.Ummul Bajanollah ... Respondents PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree, dated 13.11.2006 made in A.S.No.53 of 2005 on the file of the learned Subordinate Judge, Ramanathapuram confirming the decree and judgment, dated 12.08.2005 made in O.S.No.32 of

1993 on the file of the learned District Munsif, Ramanathapuram.

For Appellant : Mr.S.Parthasarathy For Respondents : Mr.D.Senthil ****

JUDGMENT

The plaintiff is the appellant. The suit is for bare injunction restraining the defendants from opening a doorway towards the courtyard of plaintiff's property. The plaintiff also sought for a declaration and consequential recovery of possession in respect of Item No.II of the suit property. He also sought for a mandatory injunction directing the defendants to remove the construction put up in the Item No.II of the suit property. The suit was initially decreed and on appeal, the matter was remanded back. After remand, the suit was dismissed. Aggrieved by the same, the plaintiff filed an appeal and the appellate Court confirmed the findings of the trial Court. Aggrieved by the concurrent findings, the plaintiff is before this Court.

2.According to the plaintiff/appellant, she purchased the entire suit property from one Vasanthaveni Natchiar on 03.07.1971 and she has been enjoying the north-eastern portion of the property purchased by her by putting up a house. The land situate on immediate west of the house was enjoyed as courtyard. The property on the southern side of the house was enjoyed as backyard. It was claimed by the plaintiff that the suit Item No.II, which lies on the south of courtyard, has been enjoyed by the plaintiff, as an access to reach her backyard portion for several years. Thus, she prescribed her right over the said portion of the suit property by open continuous possession. The defendants purchased a property, which lies on the south of plaintiff's courtyard and west of backward portion. While putting up a construction in the property purchased by the defendants, the defendants put up a wall obstructing the passage enjoyed by the plaintiff, as an access to her backyard from courtyard through Point-C. Therefore, the plaintiff was constrained to file a suit for aforesaid relief.

3.The defendants filed their written statement denying the averments of the plaintiff, as if she has been using the suit Item No.II, as an access. The plea of adverse possession and prescriptive title made by the plaintiff was specifically denied in the written statement. It was also claimed by the defendants that the second defendant had put up a construction only in the property purchased from one Surendran vide sale deed, dated 20.04.1985. Therefore, the defendants sought for dismissal of this suit.

4.Before the trial Court, the plaintiff Maragatham Ammal was examined as PW-1 and yet another witness was examined as PW-2. On her side, 12 documents were marked as Ex-A1 to Ex-A12. The first defendant was examined as DW-1 and nine documents were marked on behalf defendants, as Ex-B1 to Ex-B9. The Advocate Commissioner's report and plans were marked as Ex-C1 to Ex-C6. 5.The trial Court based on the learned Advocate Commissioner's report and plan marked as Ex-C5 and Ex-C6 came to the conclusion that the property purchased by the second defendant from one Surendran under Ex-B1 includes a narrow strip of land, over which, the plaintiff claimed title and hence, dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.53 of 2005. The first appellate Court also based on the Advocate Commissioner's report and plan in Ex-C5 and Ex-C6 came to the conclusion that the Item No.II of the suit schedule property, over which the plaintiff claimed prescriptive title, comes within the p