- (1.) AGGRIEVED by the judgment and decree dated 30.4.1993 passed in A.S.No.32 of 1991 on the file of the Subordinate Court, Coimbatore, confirming the judgment and decree dated 31.8.1990 made in O.S.No.923 of 1985 on the file of the District Munsif Court, Coimbatore, the first defendant has come forward with this second appeal.
(2.) THE averments made in the plaint are as follows: THE plaintiff purchased the property from the first defendant for a sum of Rs.5000 by a sale deed dated 16.9.1975. From the date of purchase, the plaintiff was in possession and enjoyment of the property by letting out the premises to the tenants and he has also been paying the house tax to the Corporation of Coimbatore. THE property is situated just adjacent to the east of Thadagam Main Road. THE first defendant was owning an extent of 10 cents, out of which he sold the eastern half of 5 cents to the plaintiff, for which, the first defendant had provided 3 feet pathway along the Northern side of the property. This pathway, which has been marked as "A, B, C, D" in the plan, is the only access to the plaintiff's property and the encroached portion has been marked as "A.E,F,G". On the North of the suit property, a house belonging to the second defendant is situated. THE Northern side owner of the property had projected their roof rafter to the end of their demarcation line and left 2 feet space below the rafters. Hence, throughout the suit lane 2 feet space belonged to the Northern side owners in making the breadth of the lane at 5 feet. Taking advantage of the absence of the plaintiff, the first defendant in the first week of April, 1985. encroached upon the, pathway and put up a tiled shed by encroaching inside the pathway. The plaintiff issued a notice to the first defendant for the removal of such encroachments. The encroachment and illegal construction of the first defendant is to be removed. If the encroachments are allowed, the plaintiff will be put to loss and he cannot have access to his house. Hence, the suit for mandatory injunction and permanent injunction. The averments made in the written statement are as follows: "The defendants deny that the plaintiff is the absolute owner of the suit property with vacant site. However, they admit that there was sale in favour of the plaintiff on 16.9.1975. It is true that three feet pathway on the northern extremity of the property was provided for the use of the plaintiff. The 3 feet pathway is to start from the Southern wall of the Northern neighbour and the plaintiff was using this pathway to reach his properties. Even at the time of purchase by the plaintiff the roof rafter of the Northern neighbour was in existence. Since the rafter was at the height of 15 feet, it was not a hindrance to the pathway. The Northern neighbour is not having even an inch of the property to the South of his wall. In fact the shed was put up about two years ago leaving a passage of 4 ft.6 inches on the West: 4 ft.4 inches on the East. The shed was put up with the knowledge of the plaintiff. The plaintiff was convinced that the shed was well within the first defendant's property. The suit pathway is not absolutely belonging to the plaintiff. It is to be used in common by the plaintiff and the defendant and as such the relief sought for by the plaintiff is misconceived and therefore, the suit is liable to be dismissed". "On the basis of the oral and documentary evidence, the trial Court decreed the suit and the same was confirmed by the lower appellate Court. Hence, the present second appeal by the unsuccessful first defendant . The second appeal was admitted on the following substantial questions of law: (a) When the plaintiff had not pleaded nor proved that the doorway in his western north-south wall was put up and used by him with the consent of the second defendant was the learned Subordinate Judge right in accepting his interested evidence as P.W. 1 to explain the Commissioner's report under C-1 and C-2. (b) When the plaintiff had not proved that the first defendant was entitled to the property only south of the alleged second south of the wall of the 2nd defendant was the learned Subordinate Judge right in allowing his claim. (c) When the parties had accepted the existence of the physical features in the suit property as found in Exs.C-1 and C-2 for a very long time, was the learned Subordinate Judge right in holding that the plaintiff was enjoying the right of passage only with second defendant's consent. (d) Whether the learned Subordinate Judge was right in decreeing mandatory injunction without determining the extent of encroachment after finding the respective extents in the enjoyment of both the parties.. (e) Whether the learned Subordinate Judge was right in placing reliance on Exs.B-1 and B-2 the municipal sanction plan by the second defendant to declare the second defendant's claim- rather on his document of title, especially when the first defendant is not a party to the same. (f) Whether the learned Subordinate Judge's findings are vitiated for the non-consideration of the existence of the fact of the north-south wall and doorway in the plaintiff's western portion proved to be in existence for a very long time clearly disproving the plaintiff's claim of 2 feet south of the southern east-west wall of the second defendant. The only point has be decided in this second appeal is whether the concurrent findings of the Courts below are sustainable under law. It is an admitted fact that the first respondent/ plaintiff purchased the land with a house from the first defendant for a valuable consideration of Rs.5,000 dated 16.9.1975, From the date of purchase, he was in possession and enjoyment of the property. During the course of his enjoyment, it is stated by the plaintiff the first defendant, who has got the vacant property on the western side of the plaintiff's property, has put up a shed measuring to the extent of 15 " x 3". According to the plaintiff the shed put up by the first defendant is very much affecting the use of the pathway by the plaintiff to reach the Thadagam Road. It is a case of the plaintiff that since the first defendant put up the shed encroaching the pathway of the plaintiff, it is very difficult for the plaintiff to pass the passage road for reaching Thadagam road.
(3.) IT is contended by the plaintiff that the first defendant leaving 1-1/2 space in that passage put up that shed which is mainly affecting the usage of the plaintiff. Therefore, the plaintiff approached the Court for the relief of mandatory injunction and also for permanent injunction. It is seen that with regard to the relief sought for by the plaintiff both the Courts have accepted the case of the plaintiff and accordingly, the relief sought for by the plaintiff is granted. As against the concurrent findings of the Courts below, the first defendant who lost the case before the lower Courts has preferred this appeal. The learned counsel appearing for the first defendant would vehemently contend that both the Courts have erroneously passed the decree and judgment in favour of the plaintiff without considering the reference mentioned in the documents produced by the plaintiff himself (Ex.A.l). It is pointed out that the plaintiff sought for the relief of mandatory injunction based on the pleadings that the first defendant has put up a shed which is very much affecting the right of the plaintiff to pass on through the said land to reach Thadagam road. ;