The court clarified the application of res judicata in property disputes and upheld the plaintiff's right to seek a mandatory injunction to remove encroachments without claiming possession.

JUDGMENT :

K. Murali Shankar, J.

The Second Appeal is directed against the judgment and decree made in A.S.No.55 of 2013 dated 04.03.2015 on the file of the Subordinate Court, Sivagangai, reversing the judgment and decree passed in O.S.No.46 of 2009 dated 13.02.2013 on the file of the District Munsif Court, Sivagangai.

2. The appellants are the defendants 2 to 4. The first respondent / plaintiff filed a suit to declare that the suit property is belonging to the first respondent / plaintiff and for consequential permanent injunction restraining the appellants and the respondents 2 and 3 / defendants 5 and 6 and their men from in any manner interfering with the first respondent / plaintiff's peaceful possession and enjoyment of the suit property and for mandatory injunction for removal of fencing structures, which were made by encroaching upon the suit property by the defendants.

3. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the trial Court.

4. The case of the plaintiff, in short, is as follows:

(a) The suit property measuring 1.14 acres is situated in Punjai Survey No.13/4 of Vallaneri alias Alagapuri Village, Alangulam Group, Sivagangai Taluk. The total extent of suit Survey No.13/4 is 4 acres 58 cents. The suit property is situated on the extreme western portion of the entire extent of 4.58 acres. The suit property belonged to one Vallikannu Ammal by virtue of a registered Inam settlement deed dated 21.04.1970. She sold the suit property to the plaintiff vide sale deed dated 25.06.1983 and since then, the plaintiff has been in possession and enjoyment of the same. The defendants have absolutely no right, title or possession over the suit property.

(b) During UDR (Updating Registry) scheme, patta was granted to the plaintiff only for 24 ares by wrongly subdivided as 13/4B. The plaintiff preferred an appeal against the illegal subdivision. The Revenue Divisional Officer (RDO), Sivagangai, has cancelled the subdivision and ordered to carry out fresh subdivision after notice to the parties concerned. The second defendant preferred an appeal before the District Revenue Officer (DRO), Sivagangai and the same was dismissed on 07.03.2007.

(c) The defendants 2 to 4 filed a suit in O.S.No.47 of 2007 before the District Munsif Court, Sivagangai against the plaintiff and the fifth defendant and obtained a judgment and decree, whereunder, the defendants 2 to 5 were declared as owners of 2.29 acres in the entire survey number. In that judgment itself, it has been confirmed that the plaintiff's property is situated on the extreme western side of the entire survey number and its extent is 1.14 acres. But the first defendant had encroached into a portion of the property, which was described as 'BAFE' and the defendants 2 to 5 had encroached into a portion shown as 'GHI' in the rough sketch and fenced them with the help of hooligans. The plaintiff issued a legal notice dated 16.07.2008 to the defendants and also effected public notice in Dinamalar daily. The first defendant sent a reply notice with false and untenable allegations.

(d) Since the defendants belong to the same village, they colluded together and approached the plaintiff to execute a sale deed in respect of the suit property in their favour. Since the plaintiff was not amenable for the same, they forcibly trespassed into the suit property and encroached a portion of the same. Hence, the plaintiff was constrained to file the above suit seeking declaration, permanent injunction and for mandatory injunction.

5. The defence of the defenda