A continuing cause of action due to a mistaken town survey prevents limitation bar to a suit, allowing mandatory injunction to rectify property boundary encroachments confirmed by impartial Commissioner report.

JUDGMENT

This Second Appeal has been filed the judgment and decree of the learned Subordinate Judge, Gobichettipalayam in A.S.No.58 of 2010 dated 12.04.2011 confirming the judgment and decree of the learned District Munsif, Gobichettipalayam in O.S.No.153 of 2008 dated 06.07.2010.

2. Heard Mr.A.K.Kumarasamy, learned senior counsel for the appellants and Mr.B.Anand, learned counsel for the first respondent and Mr.M.Murali, learned Government Advocate for the second respondent.

3. The appellants are the plaintiffs. The plaintiffs who have filed a suit against the defendants for the relief of mandatory injunction, have lost the suit in the Trial Court. The First Appeal preferred by the plaintiffs was also dismissed by confirming the judgment of the Trial Court. Aggrieved over that, the plaintiffs have preferred this Second Appeal.

4. The short facts as pleaded in the plaint are as follows The second plaintiff is the son of the first plaintiff. The Plots in T.S.Nos.8,9,10 and 11 in Ward No.C Block No.6 as well as T.S.No.25 in Ward No.C Block No.3, Gobichettipalayam Town belongs to the plaintiffs and they have built buildings over the same. The said property in the above Survey Numbers is located on the east of T.S.No.25 and the west of other Survey Numbers. A slaughter house street is running from north to south. and that is the approach street for the above plots. The slaughter house streets branches off from east to west Sathy-Erode Main Road. The street measures 6.9 meters at the northern most end where it branches off from Sathy-Erode Main Road. The old S.F.No. for the above T.S.Nos. and the area surrounding them was S.F.148 measuring 11.43 acres. The plaintiffs have purchased the property under various sale deeds individually. The slaughter house street at the time of the sale was only 6.9 meters at the entrance from the Sathy - Erode Main Road. The width was same till it reaches T.S.No.25 and also further south.

4.1. The street survey in Gobichettipalayam town was made in the year 1957. At the place where slaughter house street branches from Erode - Sathy Main Road, there were buildings on both sides of the street and the walls touching the street. The width of the street was 6.9 meters. The buildings in those places were facing Sathy - Erode Main Road and not slaughter house street. While coming down towards south in the street, the houses have to face the slaughter house street. Some of the portions of the houses adjoining the street were vaals (open space) and the vaals were also part of the houses and in patta land.

4.2. However, during the street survey in 1957, a part of vasals to the east of slaughter house street to width ranging from 1.9 meters to 3.5 meters was included in the street. That is the width of the slaughter house street which was 6.9 meters on the northern most point was suddenly increased to 8.8 meters by adding 1.9 meters. This widening was made at a point 6.7 meters south from Sathy - Erode Main Road. The width further got increased to 10.4 meters at a point 4.03 meters from Sathy-Erode Main Road. Though the street is with an uniform width of 6.9 meters, it has a bulge at 33.6 meters. The bulged portion is inclusive of patta land and it is without the knowledge and notice of the pattadars / owners.

4.3. A rough sketch is enclosed showing the slaughter house street with buildings on both sides