The court emphasized the power of the court to grant smaller relief entitled in law and the need to grant equitable relief in certain cases.

1. Theunsuccessful defendant before the courts below has filed this second appeal.

2. The respondent/plaintiff filed cross objection aggrieved only by not granting decree for mandatory injunction.

3. The plaintiff filed a suit in O.S.No.2220 of 1981 on the file of the District Munsif Court, Tiruchirappalli for declaration of his title to the suit property, for mandatory injunction to remove the pipeline and for permanent injunction restraining the defendant from letting out obnoxious substances through the pipeline into the open drain in front of the suit property.

4. According to the plaintiff he is the absolute owner of ‘A’ schedule property. The defendant is the owner of ‘B’ schedule property. Plaintiff is entitled to 16 ft. east-west which include eastern wall of the plaintiff s house. Defendant is entitled to 12 ft. east-west of his property, and therefore the western wall does not belong to him. Taking advantage of the absence of the vendors of the plaintiff, defendant had put up rain pipe abutting the eastern wall of the plaintiff towards northern side and extended the eastern wall of the plaintiff towards north and thereby trespassed into the North Andar Street. It is also the case of the plaintiff that the defendant has put up construction affecting the plaintiff’s eastern wall of plaintiff. According to plaintiff, the defendant has put up a pipe to collect obnoxious materials from the flushout latrine and the said pipe is touching the north southeastern wall of plaintiff. On that basis plaintiff has filed the present suit.

5. According to defendant, for Door No,117-A, North Andar Street, Tiruchirappalli, he is the owner measuring 15 ft. east to west and 15 ft. north to south. The walls on the south, north and west belong to the defendant. It is his further case that ever since 1953 and even prior to that the pipeline has been in existence in the defendant’s house. The ground floor was put to use as a shop by the defendant. The land II floors are being used for residential purpose by the defendant. According to him, the pipeline was in existence for a long time. The defendant never encroached upon the plaintiff’s property. The existence and use of the pipeline will not be a nuisance to anybody much less to the plaintiff.

6. The trial court decreed the suit in part directing the defendant by way of granting mandatory injunction to construct the septic tank within his house to deposit the filthy and other substance and also directing not to let out any filthy or obnoxious matter like night soil or urine or other substance except the storm water and waste water through the drain pipe. With respect to other aspects the suit was dismissed. So the defendant filed appeal in A.S.No.326 of 1984 on the file of the District Court, Tiruchirappalli. The plaintiff filed cross appeal insofar as it relates to the dismissal of the suit is concerned. The lower appellate court found that the suit wall is a common wall both to plaintiff and defendant and dismissed the appeal and the cross appeal. So aggrieved the defendant has filed this second appeal and the plaintiff the cross objection insofar as it relates to rejection of his prayer for mandatory injunction. I do not find any grounds in the cross objection challenging the findings of the lower appellate court holding that the suit wall is a common wall of both plaintiff and defendant.

7. Thesubstantial questions of law that arise for consideration in this second appeal are:-

“1. Whether the nuisance complained of is actionable and could be abated through decree of Court?

2. Whether the Courts below are justified in granting the reliefs which go beyond the scope of the suit and the reliefs prayed for therein?”

8. The plaintiff is the owner of the western side building and the defendant is the owner of the eastern side building, as shown in the Commissioner’s plan. The question to be decided in this case is whether the wall marked as ‘CG’ is the exclusive wail of the de