JUDGMENT : J. Nisha Banu, J. 1. This second appeal has been filed by the appellant/2nd plaintiff in the suit, against the judgment and decree, dated 14.03.2001, passed in A.S. No. 113 of 2000 by the Principal District Court, Thanjavur, reversing the judgment and decree, dated 06.06.2000, passed in O.S. No. 755 of 1988 by the District Munsif Court, Thanjavur. 2. The deceased father of the appellant as plaintiff had instituted O.S. No. 755 of 1988 on the file of the Trial Court for the reliefs of declaration, mandatory injunction and for damages in respect of the suit property, wherein the present respondent has been shown as sole defendant. 3. For better appreciation and understanding, the parties are referred to as per their ranking in the suit. 4. According to the plaintiffs, the house property situated in the eastern portion of T.S. No. 1850, Selliamman Kovil Street, Karanthai, Thanjavur, is originally belonged to the 1st plaintiff. The east-west measurement of the said property is 19 feet and the north-south measurement is 15 feet. The 1st plaintiff leased out the said property to a tenant. The defendant is the owner of the property in T.S. No. 1849/1, which situates on the north of T.S. No. 1850. A few years back, the defendant had constructed a terraced building in T.S. No. 1849/1, leaving vacant space both on the south as well as east of T.S. No. 1849/1, i.e., north of T.S. 1850. The 1st plaintiff's house has a door way on the northern parent wall leading into the vacant space available on the north. While so, in the 1st week of August 1988, the defendant put up four concrete pillars east to west just adjacent to the northern parent wall of the property of the 1st plaintiff and she had also inserted the concrete beams into the 1st plaintiff's parent wall high-handedly. The encroached portion is shown as 'A B C D' in the plaint plan. On 12.08.1988, the 1st plaintiff sent a notice demanding to remove the unauthorised construction, for which, the defendant sent reply notice with false averments. Hence, the suit. 5. Denying the facts averred in the plaint, the defendant had resisted the suit contending that the defendant is the owner of T.S. 1849/1. The property had been purchased by her father late Govinda Chettiar on 12.09.1944. Hence, the suit. 5. Denying the facts averred in the plaint, the defendant had resisted the suit contending that the defendant is the owner of T.S. 1849/1. The property had been purchased by her father late Govinda Chettiar on 12.09.1944. He had given the property to the defendant and her younger sister Rajalakshmi by way of a gift deed. The defendant and her younger sister were given southern half and northern half respectively and the defendant is in possession and enjoyment of the property, which she got from her father. The 1st plaintiff is the owner of the property comprised in T.S. No. 1850 measuring 15 feet north-south and 19 feet east-west. The 1st plaintiff had constructed his northern wall at the edge of northern boundary without leaving any space beyond the northern wall of his house. Immediately on the north of the 1st plaintiff's property, the defendant's property in T.S. No. 1849/1 is situated. The entire property comprised in T.S. No. 1849/1 is belonging to the defendant and she is in possession and enjoyment and she has got title over the same. So, the 1st plaintiff cannot question the manner of enjoyment of the property by the defendant. She had constructed four concrete pillars in her property and raised the construction of the building, which is completely resting on the four concrete pillars. She had not damaged and inserted the concrete pillars into the northern wall of the 1st plaintiff's house. She had put up construction in her property in T.S. No. 1849/1 after getting permission from the municipality. It is not correct to say that the plaintiff is the owner of the portion described as 'A B C D' in the rough plan. Thus, she prayed to dismiss the suit. 6. Pending suit, the 1st plaintiff died and the second plaintiff, who is the son of the 1st plaintiff, was impleaded. 7. Before the trial Court, on the side of the plaintiffs, the 2nd plaintiff was examined as PW1 and one Sambamoorthy and Varadharajan were examined as P.W. 2 and P.W. 3 and Exs. A1 to A13 were marked and on the side of the defendant, the defendant herself was examined as DW1 and Ex. D.1 and D.10 were marked. Commissioner's Report and Plan were marked as Ex. C.1 and C.2 and Surveyor's Report and Plan were marked as Ex. C.3 and C.4. 8. A1 to A13 were marked and on the side of the defendant, the defendant herself was examined as DW1 and Ex. D.1 and D.10 were marked. Commissioner's Report and Plan were marked as Ex. C.1 and C.2 and Surveyor's Report and Plan were marked as Ex. C.3 and C.4. 8. The trial Court decreed the suit. Aggrieved by the same, the defendant filed A.S. No. 113 of 2000. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, allowed the appeal setting aside the Judgment and decree passed by the trial Court and ultimately dismissed the suit. Challenging the judgment and decree passed by the first appellate Court, the plaintiff has filed the present second appeal. 9. At the time of admission, the following substantial questions of law were framed for consideration: "1. Whether the Lower Appellate Court erred in law and misdirected itself in reversing the well considered judgment of the Trial Court without disagreeing or setting aside the findings of the trial court and without assigning reasons for not agreeing with the Trial Court? 2. When it is the admitted case of both the parties that they own respectively the two properties in their respective possession, whether the Lower Appellate Court is correct in law in drawing an adverse inference for the non-production of document under which plaintiff's grandmother got the property?" 10. Despite notice being served on the respondent and her name is being printed in the cause list, there is no representation on behalf of her either in person or through counsel. 11. The learned counsel appearing for the appellant/2nd plaintiff submitted that the defendant was examined as D.W. 1 and she admitted the existence of open space on the north of the appellant's house and the 1st plaintiff put up his northern wall in his own land. The Commissioner's Report and Plan have clearly established that the concrete beams/pillars put up by the defendant are protruding the northern wall of the plaintiff's house and also the encroachment made by the defendant in T.S. No. 1850. Ex. B.1, approval plan, is related to the old construction made in the year 1983. Ex. B.2 and Ex. B.3, receipts showing the payment for surveyor's measurement, are of the years 1979 and 1982. Ex. B.1, approval plan, is related to the old construction made in the year 1983. Ex. B.2 and Ex. B.3, receipts showing the payment for surveyor's measurement, are of the years 1979 and 1982. The first appellate Court without considering the evidence given by D.W. 1 has erroneously set aside the well considered judgment and decree passed by the Trial Court. Thus, he prayed to allow the second appeal. 12. Heard the learned counsel appearing for the appellant/2nd plaintiff and perused the records carefully. 13. It is an admitted fact that T.S. No. 1850 is originally belonged to the appellant/2nd plaintiff and the south of T.S. No. 1849/1 is originally belonged to the respondent/defendant. It is also an admitted fact that in the year 1988, the respondent/defendant put up construction immediate north of the appellant's house. 14. The case of the plaintiffs is that the defendant made the construction encroaching the northern wall of the plaintiff's house and the concrete beams/pillars put up by her are protruding into the northern parent wall of the plaintiff. The case of the defendant is that the plaintiff had constructed his northern wall at the edge of his northern boundary without leaving any space. 15. The respondent has been examined as D.W. 1. In her evidence, she admitted that T.S. No. 1850 was originally belonged to Subramania Chettiar and he settled the same to his daughter, who in turn, settled the same to the his son, 1st plaintiff and after his demise, the appellant/2nd plaintiff got the property. In view of the said admission of D.W. 1, it is very clear that T.S.1850 belongs to the appellant/2nd plaintiff. 16. The respondent/defendant has produced Ex. B.2 and Ex. B.3, receipts for remitting fee for measuring her property, which are of the years 1979 and 1982. She has also produced Ex. B.1, approval plan, which is also related to the old construction made in the year 1983. The respondent/defendant in her cross-examination also stated in one place that she put up construction as per the approval plan leaving a pathway in the year 1983 and in another place, she stated that there is no pathway in between both of the properties. Therefore, she made contradictory statements in respect of the vacant place between the two properties. 17. The respondent/defendant in her cross-examination also stated in one place that she put up construction as per the approval plan leaving a pathway in the year 1983 and in another place, she stated that there is no pathway in between both of the properties. Therefore, she made contradictory statements in respect of the vacant place between the two properties. 17. D.W. 1 also in her cross-examination stated that she put up construction by putting up concrete pillars on the northern wall of the appellant's house, which is also substantiated through Ex. A.9 and Ex. A.11, photographs. The respondent/defendant further admitted in her written statement that the plaintiff put up his northern wall in his own land. 18. Before the Trial Court, an Advocate Commissioner was appointed and he visited the suit property and submitted his report and plan and the same have been marked as Ex. C.1 and Ex. C.2, which would show that the concrete beams/pillars put up by the defendant are protruding into the northern wall of the plaintiff's house and the encroachment made by her on the south of her house in T.S. No. 1850. Since the respondent/defendant objected the Commissioner's Report and Plan, she has not taken any steps to measure the properties with the help of surveyor. It is also seen from Ex. A.9 and Ex. A.11, photographs, that the defendant made construction on the plaintiff's northern parent wall of the house by way of encroachment. Therefore, it is crystal clear that the respondent made construction encroaching the northern wall of the plaintiff's house and the concrete beams/pillars put up by her are protruded into the northern wall of the house of the plaintiff. Since the defendant has admitted that the appellant is the son of the 1st plaintiff and he got title to T.S.1850 through his father, 1st plaintiff, there is no dispute with regard to the ownership of T.S.1850 by the 2nd plaintiff. The Trial Court has rightly considered the said fact and decreed the suit. But, the first appellate Court without considering the same, has erroneously dismissed the suit. 19. In view of the above discussion, the judgment and decree passed by the first appellate Court are liable to be set aside and the judgment and decree passed by the Trial Court are liable to be restored and the substantial questions of law are answered in favour of the appellant/2nd plaintiff. 20. 19. In view of the above discussion, the judgment and decree passed by the first appellate Court are liable to be set aside and the judgment and decree passed by the Trial Court are liable to be restored and the substantial questions of law are answered in favour of the appellant/2nd plaintiff. 20. In the result, this second appeal is allowed and the Judgment and decree passed in A.S. No. 113 of 2000 by the Principal District Court, Thanjavur are set aside and the judgment and decree passed in O.S. No. 755 of 1988 by the District Munsif Court, Thanjavur, are restored. No costs.