This Second Appeal is arising out of the judgement and decree, dated 24.8.1999 made in A.S.No.135 of 1995, on the file of the District Court, Pudukkottai reversing the judgement and decree dated 30.11.1994, made in O.S.No.344 of 1990, on the file of the Additional District Munsif Court, Pudukkottai.
2.The defendant is the appellant. The respondent as plaintiff has filed O.S.No.344 of 1990 before the District Munsif Court, Pudukkottai for mandatory injunction.
3.The case of the plaintiff is that the defendant in the suit, as plaintiff, has filed O.S.No.117 of 1978, for declaration and for mandatory injunction in respect of a wall constructed between 'A' and 'B' schedule properties. The Trial Court after considering the evidence held that both shall enjoy in common, without encroachment by other persons. The finding of the Trial Court was confirmed by the Appellate Court in A.S.No.80of 1984. During the pendency of the suit, the defendant in this suit put up a wall between 'A' and 'B' schedule properties. Therefore, they should be removed.
4.In the written statement, it is specifically stated that the wall in 'B' Schedule property was constructed 30 years back and the Advocate Commissioner in his report has also stated that the wall had been in existence for more than 40 years. So the Plaintiff is not entitled for easement over the 'B' Schedule property and prayed for dismissal of the suit.
5.The case of the plaintiff is that the property situated on the southern side of 'A' schedule property belongs to him and he has been entering into the 'B' Schedule property to reach his property to repair and to maintain the wall.
6.The Trial Court found that the Plaintiff can reach his property on eastern side and the wall had been in existence for more than 40 years and he is not using the 'B' Schedule property for 30 years, while dismissing the suit. However, the lower appellate Court, based on the observation made in the earlier suit, that despite the order, the defendant in the suit had constructed a wall, had reversed the finding of the trial Court.
7.This Second Appeal was admitted on the following substantial question of law:
''1.Whether the lower appellate Court is correct in law in granting the relief of mandatory injunction which had been time barred??
8.The report of the Advocate Commissioner and the evidence available on record would show that the wall was constructed long back and the prayer sought for in the suit is barred by Limitation. It is seen that by relying upon the observations made in the eariler suit granted a decree for mandatory injunction. In the considered opinion of this Court, the observation made in the earlier suit will not extend the time. Since the suit is barred by Limitation, the Judgment and Decree of the Lower Appellate Court is liable to be set aside and accordingly, they are set aside.
9.In fine, the Second Appeal is allowed and the judgement and decree, dated 24.8.1999 made in A.S.No.135 of 1995, on the file of the District Court, Pudukkottai is set aside and the judgement and decree, dated 30.11.1994 made in O.S.No.344 of 1990, on the file of the Additional District Munsif Court, Pudukkottai is restored. No costs.
To
1.The District Judge, Pudukkottai.
2.The Additional District Munsif, Pudukkottai.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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