Failure to establish clear evidence of encroachment precludes granting mandatory injunction.

JUDGMENT

The unsuccessful plaintiff is the appellant. She filed a suit seeking declaration of her right of way over the suit ‘B’ schedule property shown as ‘ABCD’ in the plaint plan. She also sought for permanent injunction restraining the defendant from putting up any construction in the suit ‘B’ schedule property. The plaintiff also sought for mandatory injunction directing the defendant to remove the construction already put up by her in the suit ‘B’ schedule property shown as ‘ABIJ’ in the plaint plan. The trial court dismissed the suit. The first appeal filed by the appellant/plaintiff was also dismissed.

Challenging the concurrent findings, the appellant/plaintiff has come before this court by way of second appeal.

2. According to the appellant/plaintiff, she purchased suit ‘A’ schedule property under registered sale deed dated 04.12.2008. The suit ‘B ‘schedule property lies on the northern side of ‘A’ schedule property and the same is the only access to the road called Kuthandavar Swamy Koil Street which lies on the western side of the disputed suit ‘B’ schedule property. It is also stated by plaintiff that north-south measurement of suit pathway is 7 feet width and east- west measurement is100 feet length. It is further stated by the plaintiff that the defendant owns a house on the northern side of the suit pathway and he purchased the same under sale deed dated 11.05.2005. The defendant, after purchasing the property on the northern side, put up construction in the suit pathway ‘B’ Schedule by encroaching 360 Sq.feet of property. The encroachment has been shown as yellow washed area in the plaint plan. It is further stated by the plaintiff that six months prior to the filing of the suit, the defendant encroached portion of the suit property with linear measurement of 7 feet north-south and 25 feet east-west. Since the defendant attempted to put up further construction, the present suit was filed seeking above said reliefs.

3. The defendant filed a written statement and denied various averments found in the plaint. It was the specific case of the defendant that the width of the suit lane portion is 7 feet and the plaintiff purchased the property south of the lane portion. The defendant also admitted that she purchased house on the north of the lane portion. However, encroachment of 360 Sq. feet of land in the suit lane portion is denied. The defendant also claimed that she had no intention of putting up construction in the suit lane portion and she had not encroached any portion of suit ‘B’ scheduled property. It was also stated that only plaintiff had put up stone pillars and barbed wire fencing in the suit lane portion and encroached the same. On these pleadings, the defendant sought for dismissal of the suit.

4. Before the trial court, the plaintiff was examined as PW1 and her husband was examined as PW2. On behalf of the plaintiff, 15 documents were marked on her side as Ex.A1 to Ex.A15. The defendant was examined as DW1 and seven documents were marked on her side as Ex.B1 to Ex.B7. The Advocate Commissioners appointed by the trial court were examined as CW1 and CW2. Their report and the plan have been marked as Ex.C1 to Ex.C4. 5. The trial court, on appreciation of evidence available on record, came to the conclusion that the plaintiff failed to prove her case that the defendant encroached the suit lane portion and dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S. 79 of 2018 on the file of Principal Sub- Court, Salem. The first appellate court affirmed the findings of the trial court and dismissed the appeal. Aggrieved by the concurrent findings, the plaintiff has come bef