JUDGMENT S. Ramathilagam, J. This Civil Miscellaneous Appeal has been preferred by the appellant herein against Judgment and Decree made in A.S.No.47 of 2002 dated 27.2.2004 on the file of Subordinate Judge, Srivilliputtur confirming the Judgment and Decree made in O.S.No.64 of 1999 dated 3.6.2002 on the file of District Munsif, Srivilliputtur. 2. The brief facts of the case is as follows; The appellant herein is the plaintiff who filed the suit for the following relief’s; (a) for declaration declaring that the second item of the schedule mentioned property belongs to him exclusively, and also for permanent injunction restraining the 1st defendant or his men, agents, servant from causing any interference and disturbing plaintiff's possession and enjoyment with regard to 2nd item of schedule mentioned property; (b) for declaration declaring that the 3rd item of schedule mentioned property belongs to only the plaintiff and 5th and 6th defendants, and also for permanent injunction restraining the 1st defendant or his men form interfering with the peaceful possession and enjoyment of the same by the plaintiff and 5th and 6th defendants; (c) for mandatory injunction for removal of the encroachments made by defendants 1 to 4 in the 1st item of the 4th schedule mentioned property and for removal of wiring in the 2nd item shown in 4th schedule mentioned property by defendants 1 to 4. Facts of the case 3. The brief case of the plaintiff is that the property which he has referred in plan attached with the plaint in item No.1 of the property viz., A, A1, B, C, D, E, F2, F1, F, G, H, A belongs to the plaintiff and the said house is situate on the north and the vacant site surrounding the said house and also the north south common pathway belongs to plaintiff. 4. The case of the plaintiff is also that the suit property belongs to him by way of a settlement deed executed by his father on 11.3.1994. The property belongs to his father by way of a sale deed of the year 7.10.1937. 5. The plaintiff claims that he is in exclusive possession of 46.3/4 feet, running from north to south, situate on the western side of his house and the vacant land measuring 3 feet running east to west as shown in plaint plan as A, A1, H1, G1, G H A which is 2nd schedule of property. 5. The plaintiff claims that he is in exclusive possession of 46.3/4 feet, running from north to south, situate on the western side of his house and the vacant land measuring 3 feet running east to west as shown in plaint plan as A, A1, H1, G1, G H A which is 2nd schedule of property. The land situate on the southern side of 46.3/4 feet, running south towards street is a pathway commonly belongs to the plaintiff and 5th and 6th defendants and the same has been shown as G, G1, G2, D, E, F2, F1, F, G in the suit plan which is the 3rd schedule property. 6. The house of the 1st defendant lies at the west of A, H, G, F (as shown in plan), north of vacant land, to which, a loom shed is situate on the northern side. 7. The case of the plaintiff is that the 1st defendant encroached in the plaintiff's property which is mentioned as H, H1, G1, F1, F, G H, by constructing a wall. Further the defendant has also constructed a loom shed without obtaining proper permissions and he has also extended his wiring for getting service connection by encroaching the 1 + feet east to west shown as A H2 G2 F2 in the eastern side of the portion encroached by the 1st defendant. 8. The plaintiff has also stated that already he filed a suit in O.S.No.384 of 1994 against the defendants 1 to 4 for permanent injunction for removal of the encroached constructions. 9. On perusal of the plaint averments, it is observed that the plaintiff is claiming right over the suit property by way of Settlement Deed and also the sale Deed as referred above. 10. The 1st defendant in his written statement totally denies the extent of the suit property and right of the suit property by the plaintiff. It is the strong objection in the statement that there is no vacant site as stated by the plaintiff at the western side of his house measuring 3 feet. Further the plaintiff has no right of any property at the western wall of his property. It is the strong objection in the statement that there is no vacant site as stated by the plaintiff at the western side of his house measuring 3 feet. Further the plaintiff has no right of any property at the western wall of his property. The defendant has also stated that the house which he is residing and the loom shed that lies on the northern side and further houses at the western side are all belonging to his grand father by way of a sale deed dated 7.7.1909 and the vacant site measuring 2 + feet lies at the eastern side of H1, F1 wall belongs to the 1st defendant and his ancestors and the 2 + feet common pathway lies on the western side of the above said vacant site. 11. It is also the averment of the defendant that the plaintiff is not entitled for any right in the 3rd schedule property which is the common pathway. The defendant also denied the encroachment and the construction of wall in the area mentioned by the plaintiff as H, H1, G1, F1, F, G, H. It is also the averment of the 1st defendant that the 1st defendant's house was constructed 50 years back and that too it was constructed by 1st defendant's father one Arumuga Moopanar. 12. At the western side of the wall, A1, F, 2 1/2 feet vacant site belonging to 1st defendant lies, in which, on the western side, he has extended his Tin Sheet for the flow of rain water from his roof. Hence the said eastern wall and the site was being maintained by him. Hence the plaintiff cannot claim any mandatory injunction in respect of the said property. 13. The further contention by the 1st defendant is that only within the limit of his property, he is taking his service connection wire for his loom shed. It is also averred by the defendant that already the plaintiff has filed a suit in O.S.No.384 of 1994 and I.A. No. 1141 of 1994 for interim injunction and in the said application, an Advocate Commissioner was appointed and he filed a report by inspecting the suit property, on the basis of which, the relief sought by the plaintiff was dismissed. Hence the order passed in I.A. No. 1141 of 1994 is binding the plaintiff. 14. Hence the order passed in I.A. No. 1141 of 1994 is binding the plaintiff. 14. Hence the from the above averments made by the plaintiff and the defendant, the trial Court has framed nine issues which runs as follows; 1. Whether the plaintiff is entitled for possession and enjoyment with regard to the 2nd schedule property; 2. Whether the 3rd schedule property belongs to the plaintiff and 5th and 6th defendants. 3. Whether the 4th schedule property belongs to the plaintiff; 4. Whether the 1st defendant has made any encroachment in the 4th schedule property; 5. Whether the suit is maintainable? 6. Whether the suit is barred by resjudicata? 7. Whether the plaintiff is entitled for the relief of declaration and injunction with regard to 2 and 3 schedule properties. 8. Whether the plaintiff is entitled for mandatory injunction with regard to 4th schedule property? 9. To what relief the plaintiff is entitled to? 15. The trial court on perusal of documents and evidence placed before it, dismissed the suit and the relief sought by the plaintiff with regard to right in the 3rd schedule property and the second item of property in the 4th schedule for the relief of mandatory injunction is also dismissed. Aggrieved against the decree and judgment passed by the trial Court, the plaintiff has preferred appeal in A.S.No.47 of 2002 before the Subordinate Judge, Srivilliputtur 16. The first appellate Court after considering the evidence and document has also dismissed the appeal and confirmed the decree and judgment of the lower Court. 17. Aggrieved against the said order, the plaintiff has preferred the Second Appeal on the ground that the Courts below have not considered the documents Ex.A.3, Ex.B2 and especially the documents Ex.A.12 and A13. The objections raised by the plaintiff for the Commissioner report was also not considered by the Courts below. 18. At the time of admitting the Second Appeal, the following substantial questions of law arose for consideration; 1. Whether the relief of mandatory injunction claimed by the plaintiff as regards the fourth schedule first item of the suit property is barred by limitation? 2. Whether the plaintiff should file documents showing that the defendants have no right over the property? 3. Whether oral evidence and the Commissioner's Report can prevail over the documentary evidence? 19. Whether the relief of mandatory injunction claimed by the plaintiff as regards the fourth schedule first item of the suit property is barred by limitation? 2. Whether the plaintiff should file documents showing that the defendants have no right over the property? 3. Whether oral evidence and the Commissioner's Report can prevail over the documentary evidence? 19. From the perusal of records and further evidence and documents, with regard to the Commissioner report and the plan, it is observed that the plaintiff has filed 27 documents to prove his right over the suit property and two witnesses were examined on his side. The plaintiff is claiming right over his property by way of document Ex.A.2 which is the Settlement Deed executed by his father on 11.3.1994. 20. Ex.A.3 is the sale deed executed by the grand father of the plaintiff to his father. It is the case of the plaintiff that the defendant was trying to take his electrical wire through the property belongs to the plaintiff, hence to arrive at a decision and also to decide the relief sought by the plaintiff with regard to the extent of the property which he is in possession and enjoyment of the same, an Advocate Commissioner was appointed by the trial Court. The defendant is claiming right over his property based on the documents Ex.B.2, the sale deed. 21. Perusal of the Commissioner's report reveals the fact that the property lying on the eastern side of the plaintiff's property belongs to one Chinna Namasivayam Moopanar. 22. As per Ex.A.4, the plaintiff's property lies to the extent of 24 feet at his western side of Chinna Namasivaya Moopanar's house. But in the Commissioner's report, Ex.C.1-report and Ex.C.2-plan, a measurement of 26.7 feet has been shown. It is also observed from the Commissioner's plan, the plaintiff is in possession of 26.7 feet against the measurement of 24 feet as mentioned in his document Ex.A.4. So it is observed that as per the Commissioner's report, he is occupying even more than the measurement which he has stated in the plaint, i.e., 26 + feet. 23. Hence, it is observed that the plaintiff is entitled only to 24 feet, but he is in possession of more than the measurement mentioned in Ex.A.4. So it is observed that as per the Commissioner's report, he is occupying even more than the measurement which he has stated in the plaint, i.e., 26 + feet. 23. Hence, it is observed that the plaintiff is entitled only to 24 feet, but he is in possession of more than the measurement mentioned in Ex.A.4. The construction made by the 1st defendant in his property the measurement at the east west is 21 or 57 + feet, whereas the Commissioner has noted that the defendant's construction is even lesser than the extent mentioned in his document Ex.B.2 which is the sale deed of the defendant's father. 24. It is also clearly observed from the Commissioner's plan that the property of the defendant lies within the measurement as stated in his document. It is also observed from the Commissioner's report that the plaintiff has constructed his house in the entire 24 feet east west feet as mentioned in Ex.A.4. Hence with respect to the claim of property to the extent of 3 feet as stated in the 2nd schedule, nothing has been mentioned in the Commissioner's report except that there is a vacant site measuring only 1.6 feet lies between the plaintiff and the defendant's house. Thus it is very much clear from the Commissioner's report that in between the plaintiff and defendant's house, a vacant land measuring 1.6 feet alone. 25. Regarding the right claimed by the plaintiff for the 3rd schedule property in Ex.A.4, the trial court, in its judgment has been stated as follows; xxxxxxxx 26. As per Ex.C1, there is no property in 3rd schedule measuring 7.9 feet on the east west and 30, feet on the north south. Further, it is observed that in Ex.A2 and A3, the measurement of the common pathway has not been mentioned. It is also observed from the plaintiff's averments and the 1st defendant averments that already the plaintiff has filed a suit in O.S.No.384 of 1994 with regard to the relief of mandatory injunction. In the property with respect to the said suit electric wiring has been taken by the defendant in the 4th schedule property, whereas the said suit was withdrawn by the plaintiff. 27. In the property with respect to the said suit electric wiring has been taken by the defendant in the 4th schedule property, whereas the said suit was withdrawn by the plaintiff. 27. It is also observed by the Commissioner that the property mentioned as 4th schedule which has been shown as H, H1, F1, F, G, H, there is no vacant site belonging to the plaintiff and there is only a pathway measuring 3 feet which lies at the western side of the property and there is also no encroachment by the defendant in H1, G1, F1, F, G and H. 28. These are all the observations and measurements made by the Commissioner. The said measurements noted by the Commissioner and the measurements mentioned in the plaintiff's documents and the defendant documents were also perused by the trial court. 29. On perusal of the plaint averments, the plaintiff has not stated the exact period that when the defendant has made east west 3 feet encroachment in the 2nd and 3rd schedule property. But the plaintiff, in his cross examination has admitted that in the 4th schedule 1st item, the construction was made by the defendant as early as in the year 1992, but the relief for the same was not claimed by the plaintiff in the suit which he filed in O.S.No.384 of 1994. Hence, it is very much observed that the defendant has made construction in the 4th schedule property even in the year 1992 and there is also no encroachment by him in the extent of property which the defendant is entitled as per his document. Hence as the documents filed by the plaintiff, regarding the extent of property and his enjoyment in the common pathway, the plaintiff is not entitled for the relief of declaration with regard to the second schedule property, but he is entitled for a pathway right which lies in the 3rd schedule property. 30. It is also observed that there is no encroachment in the 4th schedule 2nd item of property and the said fact was also stated in the interim application filed by the plaintiff. It is also observed that the 1st defendant has also obtained the service connection on 16.9.1994 and the wiring laid for the said purpose also runs only within the property belongs to the 1st defendant i.e., the loom shed. It is also observed that the 1st defendant has also obtained the service connection on 16.9.1994 and the wiring laid for the said purpose also runs only within the property belongs to the 1st defendant i.e., the loom shed. Hence the vacant site that lies at the western side of the plaintiff's house does not belong to the plaintiff exclusive and further the wiring is also lies only within the limit of the 1st defendant's property. Hence the observation made by the trial court which was confirmed by the First Appellate Court also does not require any interference. 31. In view of the above said observations and discussions and also on perusal of records, the substantial questions of law are answered accordingly and the Second Appeal is dismissed confirming the judgment and decree passed by the Courts below. No costs. Consequently the connected miscellaneous petition, if any is also closed.