(Prayer: Second Appeal is filed under Section 100 C.P.C. against the judgment and decree of the Appellate Judicial cum III Additional Subordinate Judge’s Court at Coimbatore dated 16.11.2005 in A.S.No.140 of 2005, confirming the judgment and decree of the II Additional District Munsif Court at Coimbatore dated 14.07.2005 in O.S.No.683 of 1999.)

1. The Second Appeal has been preferred challenging the judgment of the III Additional Subordinate Judge, Coimbatore dated 16.11.2005 made in A.S.No.140 of 2005.

2. The suit has been filed for seeking the relief of mandatory injunction directing the first defendant to remove the alleged illegal constructions as shown in the plaint plan as “ABCD” and for permanent injunction restraining the first defendant from putting up further construction in the suit property. The trial Court dismissed the suit and the first appeal filed by the plaintiffs has also got dismissed by confirming the judgment of the trial Court. Aggrieved by which the present Second Appeal is preferred by the plaintiff.

3. The facts pleaded in the plaint filed by the plaintiffs in brief:

               The suit property was purchased by the husband of the first plaintiff Pechimuthu and his two brothers viz. the plaintiffs 2 and 3, from Pechiannan and Ganesan, through a registered sale deed dated 12.01.1995. The husband of the first plaintiff died subsequently. The suit property measures 43 feet North – South and 66 feet East – West. The adjacent property in the West belonged to one Ramasamy and now it belongs to the first defendant. The first defendant purchased the property on 10.06.1988. The first defendant is entitled to 39’ 6” East – West and 19’ 6” on North – South and there is a house building in his property. The first plaintiff died on 27.03.2021 and the legal heirs are the other plaintiffs. The defendants 2 and 3 have inherited the shares of the deceased third plaintiff in the suit property and they have been impleaded as pro-forma parties and they have not filed any written statement also.

               3.1 The first defendant applied for additional construction to his house. Under the guise of putting up additional constructions, the first defendant had encroached an extent of 1 ½ ft. into the property of the plaintiffs on the western side in the month December, 1988. The second plaintiff preferred an objection to the Town Panchayat by notice dated 03.04.1999 calling upon him to cancel the license given to the first defendant to put up additional construction in his property. In the notice dated 03.04.1999 the Executive Officer has clearly ordered the first defendant that he should stop the additional construction in pursuance to the revocation of the license. Despite the same, the first respondent prepared to put up the first floor in his building by encroaching an extent of 1 ½ feet into western side of the plaintiff’s property. Hence, the plaintiffs have filed the suit seeking the relief of mandatory injunction and permanent injunction as stated above.

4. The averments made in the written statement filed by the first defendant in brief:

               The first defendant’s property measures an extent of 39 ft. 6 inches East – West and 19 feet 6 inches North – South. As the first defendant intended to put up additional construction, he applied to the Panchayat for granting permission for new construction of his house. The first defendant constructed his old house in the year 1967. The first defendant submitted a plan for putting up a new construction with the same measurements as in the old plan and that has been approved. The first defendant put up a new construction and he completed it. As per the original document, the property of the defendant measures 39.6 x 19.6 feet. Actually there is no common passage between the plaintiff’s and the first defendant’s house. The first defendant did not interfere or encroach in this alleged common passage. The suit has been filed with false averments and hence it should be dismissed.

5. On the basis of the above pleadings, the trial Court framed the following issues and additional issues:



6. During the course of the trial, on the side of the plaintiffs two witnesses were examined as P.W.1 and P.W.2 and Exs.A1 to A7 were marked. On the side of the defendants, the first defendant examined himself as D.W.1 and Exs.D1 to D5 were marked. The Commissioner's Report and Plan has been marked as Exs.C1 to C3.

7. At the conclusion of the trial, the trial Judge has dismissed the suit filed by the plaintiffs. The appeal filed by the plaintiffs have also got dismissed by confirming the order of the trial Court. Aggrieved by the same, the present Second Appeal has been preferred.

8. The Second Appeal has been admitted on the following Substantial Questions of Law:

               "1. Whether the Courts below are correct in law in non suiting the appellants only on the ground of limitation and acquiescence totally overlooking Ex.B3 and the fact that the suit has been filed within a year of reconstruction?

               2. Whether the Courts below are correct in law in relying on created documents and xerox copies of documents to dismiss the suit?"

9. Heard Mr.K.Venkata Subban, the learned counsel for the appellants and perused the materials available on record. There is no representation for the defendants.

10. The learned counsel for the appellants / plaintiffs submitted that pending suit an Advocate Commissioner has been appointed to visit the suit property along with a Surveyor and the Commissioner’s plan has been marked as Exs.C1 to C3; the title deeds of both the appellants and the first respondent did not show any pathway as a boundary and as alleged by the first defendant; the plan approval has been obtained for 780 sq.ft. despite the title deed of the first defendant shows only 61 sq.ft., but this has been ignored and not properly appreciated by the first appellate Court; the trial Court has observed in the judgment that the plaintiffs have admitted that there is a pathway; in fact there is no such evidence given by any of the plaintiffs; the trial Court has also observed that the first defendant had constructed 2 ft. more than his entitlement and it is revealed in the Commissioner’s report; however, the trial Court has convinced itself by stating that it is not known from which Survey Stone the measurement has been taken; the trial Court has mislead itself as though there is some house sites between plaintiffs and first defendant’s property without any basis of the records; the trial Court has arrived at a conclusion that the portions “ABCD” in the plaint plan is a common pathway and on which the plaintiffs cannot claim any exclusive right; despite the Commissioner has observed that there are encroachments on the vacant sites on the eastern side, the trial Court has observed that there is a common pathway; the vacant site obviously belonged to the plaintiffs who are the owners on the eastern side.

               10.1 It is further submitted by the learned counsel for the appellants that there is a typographical mistake in describing the year on which the cause of action has arisen; the plaintiffs, instead of mentioning it as “1998”, has typed it as “1988” and that led to the dismissal of the suit on the finding that the suit is barred by limitation.

11. The appellants / plaintiffs and the first respondent / first defendant’s properties are adjacent to each other. The first defendant’s property is on the eastern side and the plaintiff’s property is on the western side. The case of the plaintiffs is that the first defendant, while constructing his house, has encroached 1 ½ ft. on the western side into his site. In the plaint he stated that the encroachment is of the year 1988. When the first defendant started to put up additional construction, the second plaintiff raised objection and sent a notice to Kuniamuthur Town Panchayat. The Executive Officer of the Town Panchayat has sent a notice to the first defendant on 03.04.1999 stating that the first defendant should stop the additional construction and the permission granted to put up additional construction has also been revoked subsequently. However, the first defendant is said to have managed to construct the first floor in a similar manner as how the ground floor has been raised by him by encroaching 1 ½ ft. on the western side.

12. The Commissioner has been appointed and he has filed a report with plan after inspecting the suit property. It appears from the report and plan of the Commissioner that the first defendant’s property is situated on the western side of the suit property and there is a vacant place measuring 1.9 ft. and it has been noticed in the report of the Commissioner on the western side.

13. There was a common pathway between the plaintiff’s property and the first defendant’s property. But the Commissioner’s report and plan does not show any common pathway as observed by the trial Court. In fact, the trial Court has given a categorical finding that the first defendant has constructed 2 ft. in excess of his East – West measurement. As per the understanding of the trial Court, the encroachment of the first defendant has been made only on a common pathway. Even the title deeds of the plaintiffs and the first defendant does not know whether there is a common pathway in between the plaintiffs and first defendant’s house site. But the trial Court has chosen to dismiss the suit not only on the observation of the common pathway but also in view of the fact that the plaintiffs have filed a suit after expiry of limitation from the year 1998 i.e. when the encroachment is said to have been caused by the first defendant in the ground floor.

14. The learned counsel for the appellants / plaintiffs submitted that the plaintiffs have raised objection even in the year 1999 that the first defendant has started to put up his additional construction. But the cause of action had arisen even in the year 1988, when the first defendant first started to raise his construction and encroached on the western side. Even though the Courts below are not correct in their observation that there is a common pathway running in between the plaintiffs and the first defendant’s house sites, they are right in their findings that the suit is barred by limitation in view of the cause of action arose in the year 1988 itself. As the appellants / plaintiffs have knocked the doors of the Court at a belated stage after allowing the limitation to expire, the reliefs as prayed by the plaintiffs were not granted.

15. It is submitted by the learned counsel for the appellants / plaintiffs that the sunshade of the first floor is protruding on the encroached portion and that it should be removed. As the first floor forms part of the construction of the plaintiffs and the act of encroachment has been committed in the year 1988 itself. Hence, it is not right on the part of the appellants to state that the cause of action arisen in the year 1999 by taking advantage of the fact the first defendant has started the construction of the first floor in the year 1999 and kept his sunshade extended on the encroached portion on the ground floor.

16. As the appellants / plaintiffs themselves have accepted that they have initiated action only in the year 1999, at a belated stage, the suit itself is hit by limitation. Even if it is true that there was no common pathway between the sites of the plaintiffs and the first defendant, that will not come to the rescue of the appellants / plaintiffs for getting the reliefs as prayed by them.

17. In view of the above stated reasons, the Substantial Questions of Law are not answered in favour of the appellant.

18. In the result, the Second Appeal is dismissed and the judgment and decree passed by the Courts below are confirmed. No costs. Connected miscellaneous petition is closed.