S.A.(MD).No.479 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

JUDGMENT RESERVED ON : 16.03.2022

JUDGMENT PRONOUNDED ON : 01.04.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

S.A.(MD).No.479 of 2021

and CMP(MD).No.6418 of 2021

Muthulalitha

...Appellant/Appellant/

Plaintiff

Vs

Sundaravadivu

...Respondent/Respondent/

Defendant

PRAYER : Second Appeal is filed under Section 100 of C.P.C, to allow

the second appeal by setting aside the judgment and decree made in

A.S.No.29 of 2018 dated 08.02.2021 on the file of the Additional

District and Sessions Court, Srivilliputhur, confirming the judgment

and decree made in O.S.No.52 of 2010 dated 02.01.2018 on the file of

the Subordinate Court, Srivilliputhur.

For Appellant

: Mr.M.Thirunavukkarasu

For Respondent : Mr.S.Ramesh

For Mr.V.Raghavachari

JUDGMENT

The plaintiff is the appellant.

2.The plaintiff filed O.S.No.52 of 2010 before the

Subordinate Court, Srivilliputhur for declaration that she is the

absolute owner of the plaint second schedule property which is a

wall and sought for consequential permanent injunction from in any

way encroaching or doing any other construction in the plaint second

schedule property. The plaintiff further prayed for a mandatory

injunction to remove the encroachment over the second schedule wall

as shown in the plaint fourth schedule property.

3.The trial Court partly allowed the suit granting

declaration of title over the first and second schedule properties

and consequential injunction for the said properties. The trial

Court also granted permanent injunction in favour of the plaintiff

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S.A.(MD).No.479 of 2021

that the defendant should not put up any construction or encroach

over the second schedule property. However, the prayer with regard

to mandatory injunction was rejected. As against the same, the

plaintiff filed A.S.No.29 of 2018 before the Additional District and

Sessions Court, Srivilliputhur. The learned Appellate Judge

concurred with the findings of the trial Court and dismissed the

appeal filed by the plaintiff. As against the same, the present

second appeal has been filed by the plaintiff.

4.The plaintiff had contended that she is the owner of

plaint first and second schedule properties. The defendant who is

the adjacent owner had encroached upon the second schedule property

which is a wall belonging to the plaintiff and she has inserted ½

feet of her property at the height of 25 feet in the suit second

schedule wall and she has also put up 'RCC' tank in the said

encroachment. Hence, the plaintiff prayed for declaration and

permanent injunction for the second schedule property and for

mandatory injunction for removal of the encroachment ( mentioned in

the fourth schedule property) over the second schedule property.

5.The trial Court agreed with the contention of the

plaintiff that the suit second schedule property is the exclusive

wall belonging to the plaintiff and proceeded to grant a decree for

declaration of title and permanent injunction in favour of the

plaintiff over the second schedule property. The trial Court further

found that since the second schedule wall is the exclusive wall of

the plaintiff, the defendant is not entitled to put up any

construction over the second schedule wall. Hence, the trial Court

granted a decree for permanent injunction restraining the defendant

from in any manner put up any further construction or encroachment

over the second schedule wall. However, the prayer for mandatory

injunction for removal of construction that have already been was

rejected by the trial Court.

6.The trial Court relied upon the Advocate Commissioner's

report to arrive at a finding that the width of the second schedule

wall upto the first floor is 1 ½ feet and above the first floor, it

is o