BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 24.04.2018 PRONOUNCED ON : 07.06.2019 CORAM :

THE HONOURABLE MR.JUSTICE S.S.SUNDAR Second Appeal(MD)No.93 of 2013 and M.P.(MD)No.1 of 2013 Instine :Appellant / Respondent / Defendant -Vs-

Raj : Respondent / Appellant / Plaintiff Prayer: Second Appeal filed under Section 100 of the Code of the Civil Procedure, to set aside the judgment and decree dated 27.01.2012, passed in A.S.No.85 of 2011 on the file of the Sub Court, Thoothukudi, reversing the judgment and decree dated 10.03.2011 passed in O.S.No.64 of 2008 on the file of the District Munsif Court, Sathankulam.

For Appellant :Mr.C.Dhanaseelan For Respondent :Mr.M.P.Senthil ***

JUDGMENT

The defendant in the suit in O.S.No.64 of 2008 on the file of the District Munsif Court, Sathankulam, is the appellant in this appeal.

2.The respondent in this appeal, as plaintiff, filed the suit in O.S.No.64 of 2008 before the District Munsif Court, Sathankulam, for permanent injunction restraining the defendant/appellant from interfering with his peaceful possession and enjoyment of the suit property.

3.The case of the plaintiff, as pleaded in the plaint, is as follows:

3.1.The suit property was allotted to the brother of defendant in a partition among the first defendant and his brothers. The property allotted to the brother of the defendant, by name, Alagesan was sold by him to the plaintiff on 13.10.2000. On the date of sale, the plaintiff was put in possession and he is in possession and enjoyment of the suit property. On the western side of the suit property, the defendant's house is located. With an intention to encroach into the suit property, the defendant has made an attempt to construct a compound wall unauthorizedly on 24.08.2008. The defendant's attempt was thwarted on that day. However, the defendant is interfering with plaintiff's enjoyment by denying the right of the plaintiff and that, therefore, the plaintiff is afraid of encroachment by defendant in the suit property. Hence the suit is filed.

4.The suit was contested by the defendant denying the averments made in the plaint. It is admitted by the defendant that the suit property and adjacent property belonged to the father of defendant, by name, Thiru.Athikan. It is further stated in the written statement that after the death of the defendant's father, the defendant and his two brothers entered into a registered partition deed on 01.10.1999. It is contended by the appellant that within the property that was allotted to the defendant, the defendant put up a north-south compound wall on 26.08.2008, i.e., on the eastern portion of his house. It is further stated that the compound wall was demolished by the plaintiff and his men and that therefore, the defendant was constrained to give a police complaint. It is also stated by the defendant that the suit property is a vacant land and that the suit is nothing but a counter blast to the criminal complaint lodged by the defendant against the plaintiff. After the written statement was filed, the plaintiff amended the plaint to include the prayer for declaration of title and for a mandatory injunction directing the defendant to remove the foundation constructed by defendant on the western portion of suit property.

5.Sum and substance, the partition in the defendant's family and the allotment of a share to his brother, Alagasen, who is the plaintiff's vendor is not in dispute. The suit property is an extent of 5.86 cents in N.S.No.801 in Pallakurichi Village. Under the partition deed under Ex.A1 the total extent of 17.596 cents was divided into 3 plots, each measuring 35 ft. east-west and 73 ft. north-south with an extent of 2555 sq.ft. The plaint was subsequently amended to include a prayer of mandatory injunction to remove the compound wall constructed by the defendant on the western side of the suit property. To the amended plaint, the defendant/appellant filed additional written statement denying the allegations. The defendant a