BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 05.08.2025 CORAM THE HONOURABLE MS.JUSTICE R.POORNIMA S.A(MD)No.214 of 2008 V. Swaminthan ... Appellant/Appellant/1^st Defendant Vs.

S. Vijayalakshmi Rep by the Power Agent V.Thailan ...Respondent/ Respondent/Plaintiff PRAYER : Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S. No.58 of 2005 on the file of the Principal Subordinate Court, Kumbakonam, dated 09.07.2007 confirming the Judgment and Decree in O.S.No.171 of 2001 dated 15.09.2004 on the file of the Additional District Munsif Court, Valangaiman at Kumbakonam.

For Appellant : Mr.P.Thiagarajan For Respondent : Not present

JUDGMENT

This Second appeal had been filed by the 1^st defendant in O.S.No.171 of 2001 on the file of the Additional District Munsif Court, Valangaiman at Kumbakonam.

2. In O.S.No.171 of 2001 had been filed by the plaintiff through her power of attorney against the defendants, seeking a Judgment and decree for mandatory injunction and for permanent injunction restraining the defendants, their men, agents, etc., from in any way trespassing into the suit property.

3. This suit came up for consideration before the learned Additional District Munsif, Valangaiman at Kumbakonam, who, by judgment and decree dated 27.08.1997, decreed the suit. The 1^st appeal in A.S.No.58 of 2005, filed by the 1^st defendant came up for consideration, the Principal Subordinate Court, Kumbakonam, by judgment and decree dated 09.07.2007, the appeal was dismissed and the judgment in O.S.No.171 of 2001 was confirmed. Challenging that judgment, the 1^st defendant had filed this present second appeal.

4. The plaintiff's case in O.S.No.171 of 2001 in brief, is as follows:

The suit property originally belonged to Neelambal Achi and she adopted one Muthayya Chettiar as her son. Her son Muthayya Chettiar had two wives namely, Gnanam and Parvathi. The plaintiff is the daughter of Parvathi. Neelambal Achi has executed a WILL dated 04.06.1956 bequeathing the suit properties in favour of the plaintiff. At the time of the WILL, the plaintiff was a minor and Parvathi managed the suit properties till the plaintiff attained majority. The WILL was later probated. The original unregistered WILL was filed in O.S.No.3 of 1993 on the file of the Valangaiman District Munsif Court. The suit property is surrounded by Door Nos. 24, 27 to 30 and 33 to 36 on the south of Door No.30 the first defendant had a small place. On the East of Door Nos.27 to 30 and Veerasami's building. There is a pathway that stretches from South to North excluding the buildings. The suit property situated in R.S.No.24/10 is the subject matter in O.S.No.3 of 1993. The first defendant without any right has trespassed into the suit property and has put up a basement measuring 10 x 20 feet. It is alleged that the entire pathway is covered leaving a space of 2 feet in breadth. On 24.07.2001 when the plaintiff questioned the illegal construction, first defendant gave an evasive answer in collusion with second defendant who were making arrangements to further construct. The Plaintiff states that if the first defendant is allowed to construct the building, the plaintiff will be put to loss and hardship and the plaintiff restricted it. The defendant is liable to surrender vacant possession of the suit property.

Hence, the suit.

5. The 1^st defendant filed written statement.

The 1^st defendant denied the averments contained in the plaint and rough sketch. This defendant alleged that he is in actual possession and enjoyment of the suit property referred to in the plaint along with other extent of the site. It is said that the 2^nd defendant has nothing to do with the property and he was earlier a tenant under this defendant in the building when it had a thatched roofing and the 2^nd defendant has also vacated and left the place. The description of the suit property as given in the plaint is not correct and the sketch is misleading. In the suit site