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This second appeal has been preferred against the decree and Judgment in A.S.No.11/1996 on the file of the Court of Principal Subordinate Judge, Salem. The plaintiff, who has won his case before the trial court but lost the same in the first appeal, is before this Court in Second appeal.

2. The short facts in the plaint relevant for the purpose of deciding this second appeal are as follows:

2(a) The suit is for declaration and mandatory injunction in respect of common roads situated in suit S.No.9/16A & S.No.9/20A in between the house sites of the plaintiff and the house of D1 and also on South of house site of the plaintiff and the house of D1 and for mandatory injunction to remove the encroached portion shown in green and red colour in rough plan from the suit property viz. common roads and to restore the same to its original condition. The plaintiff purchased the house plot in S.No.9/16A and 20A situate in Meyyanur Village, Sooramangalam, Salem Taluk, measuring 3060 sq.ft. with measurement of 52 feet East-West on the North, 50 feet East-West on the South, 63 feet South-North on the East and 57 feet South-North on the West, situate within the boundaries on the North of East-West common road, on the South of the plot of Angammal, on the west of common well and 20 feet road given by Thandava Gounder and on the East of the property of the plaintiff, by virtue of a registered sale deed dated 17.9.1986 executed in her favour by one R.Gopalan for the valid consideration of Rs.41,220-00.
2(b) The plaintiff has also purchased 2/3 share in the well and also right of way in both the roads, one running East-West and the other running South-North appurtenant to the above said house plot. Patta No.265 was assigned to the plaintiff for the suit property by the Deputy Tahsildar Salem by his proceedings in No.2818/6/II 1986-87 dated 19.1.1987 on the East of the plaintiff's house site. There is a 20 feet road and a well and also on the south of the house site there is a common road and both the roads are common for the owners of the house plots therein. The 1st defendant is the owner of the house on the Eastern side of the house site belonging to the plaintiff. The 1st defendant is also having the right to use the common road, but he is not entitled to encroach upon the said common road in any manner. The 1st defendant has encroached a portion of 1 = feet East-West and 27 feet 3 inches south-north, 3 = feet East-West and 6 feet 3 inches South-North, 4 feet 9 inches East-West and 13 feet 9 inches South-North and the encroached portion have been clearly shown in green colour in the rough plan filed along with the plaint. The 1st defendant has also encroached upon the East-West common road on the South of the plaintiff's house site to an extent of 3 feet 3 inches North-South and 62 feet 9 inches East-West and the said encroached portion has also been shown in red colour in the rough plan filed along with the plaint. The 1st defendant put up construction in his plot by encroaching in the suit property. Hence, the suit.

4. The 2nd defendant in his written statement has contended as follows:

4(a) The plaintiff has purchased plot No.2 and the averments regarding the common path way on the North of East-South are true. Only through the East-West road on the South of plot No.2 one can get access to plot No.1. The North-South Road having a breadth of 20 feet exist between the plot No.2 and plots No.3 & 4 is meant for use of the plaintiff and for other plot holders. A well exists on the North-East corner of 20 feet road is meant for use of plot holders. So, the 20 feet road is a common road. The first defendant has unlawfully encroached in both roads and constructed terraced house.
4(b) The second defendant has obtained general power of attorney deed in respect of plot No.1 from the owner of plot No.1 and he is in possession and enjoyment of the same by leasing it to the tenant and is collecting the same. The owner of the plot No.1 has also given his original sale deed with this defendant. Even in the original sale deed of this defendant there is mention about the common path way on the East as well as on the South. This defendant's original sale deed is dated 23.11.1964 and his general power of attorney is dated 4.2.1988. The suit roads are meant for plot holders in S.No.9/2, 3, & 4 (New S.No.9/16A and 9/20A). The first defendant has no right to encroach those common roads. Hence, the suit is liable to be decreed for removing encroachment.