herself as PW.1 and one Sivasamy as PW.2. Exs.A1 to A24 were marked. B.Suseela examined herself as DW.2. Exs.B1 to B6 were marked. An Advocate Commissioner was appointed and his report and plan were marked as C2 and C3. The sketch issued by the surveyor was marked as Ex.C1. After consideration of the evidence on record, the trial court by judgment and decree dated 31.10.2007 dismissed the suit. Aggrieved by the same, Subbulakshmi filed A.S No.97 of 2007 before the Sub Court, Srivilliputhur. By judgment and decree dated 24.02.2010, the first appellate court modified the decision of the trial court and partly decreed the suit and gave declaration as sought for. Injunction was granted subject to the outcome of SA No.1528 of 2004. The plaintiff was however held entitled to use the second schedule pathway. The second schedule is none other than the lane running across T.S No.2422. However, mandatory injunction for removal of encroachment whatever in form in respect of T.S Nos.2422 and 2434 was declined. Aggrieved by the same, SA(MD)No.726 of 2010 was filed. Though it was filed in the year 2010, only notice was ordered and it was on the last occasion, I framed a substantial question of law that whether the courts below were justified in denying the relief of mandatory injunction for removal of encroachment in TS No.2422 when the defendants themselves have agreed to remove the same.
