Restored permanent injunction for boundary wall on plaintiff's property excluding defendant's encroached portion, based on Commissioner's report.

J U D G M E N T

The unsuccessful plaintiffs are the appellants. They filed a suit for bare injunction restraining the defendant from causing any damages to north-south compound wall on the eastern side of their residential house in the suit property. The suit was decreed by the trial Court in respect of the compound wall except ‘MBQM’ portion. The trial Court also granted a decree for mandatory injunction directing the defendant to remove construction in ‘HIJK’ portion. Aggrieved by the said decree, the defendant filed an appeal. The First Appellate Court reversed the findings of the trial Court and dismissed the suit. Aggrieved by the same, the plaintiffs have come before this Court.

2. According to the plaintiffs, the building bearing Door No.4/54, Mettupalayam Taluk, Veliangadu Post, Muttukallur Village is the absolute property of the plaintiffs and the suit has been filed only in respect of north- south compound wall situated on the eastern side of residential house of the plaintiffs. The plaintiffs and their predecessor in title have been in possession and enjoyment of the suit property for more than 70 years. Recognizing the right, title and interest of the plaintiffs, the Special Tahsildar of Natham Land issued patta in the name of the husband of the 1^st plaintiff.

3. It was also pleaded by the plaintiffs that in order to facilitate white washing of the eastern compound wall, the plaintiffs left 2 feet space on the eastern side of the compound wall. The defendant who owns the property on the east of the suit property without having any right attempted to cause damage to the compound wall of the plaintiffs. Hence, the present suit was laid seeking permanent injunction.

4. The defendant filed a written statement denying the right, title and interest of the plaintiffs in the property on the eastern side of north-south compound wall. The defendant also denied the averment in the plaint as if, the plaintiffs left 2 ft space on the eastern side of north-south compound wall. The allegation in the plaint that the defendant attempted to cause damage to the north-south compound wall also specifically denied in the written statement.

5. The defendant further pleaded that the existing compound wall of the plaintiffs on the northern side was constructed by encroaching the property of the defendant up to 8 feet. It was further pleaded that the defendant has not attempted to damage the compound wall and on the basis of injunction obtained, the plaintiffs attempted to stop the construction work of the defendant which was carried out within the limitation of their property. On these pleadings, the defendant sought for dismissal of the suit.

6. Before the trial Court, the 1^st plaintiff was examined as PW.1. Yet another witness was examined as PW.2. On behalf of plaintiffs, sixteen documents were marked as Exs.A1 to A16. It is pertinent to mention that the original judgment and decree of the trial court was set aside and matter was remanded to trial Court as ordered by the III Additional Sub Court, Coimbatore in A.S.No.41 of 2009. The details of witnesses examined by parties and documents marked were not properly mentioned in annexure to trial Court’s judgment. This Court perused the original records called for from the Courts below and found two witnesses were examined on behalf of the plaintiffs and one witness was examined on behalf of the defendant. 7. It is also seen, the trial Court appointed an Advocate Commissioner and he filed three reports and plan which were marked as Exs.C1 to C6. It is to be mentione