JUDGMENT :

N. SATHISH KUMAR, J.

1. Aggrieved over the concurrent findings of the Courts below passed a decree for mandatory injunction against the defendant/first appellant to remove the constructions put up on the common wall in the suit property, the present Second appeal is filed.

2. The parties are referred to as per their own ranking before the Courts below.

3. The brief facts leading to the filing of the present second appeal is as follows:

3.1. The plaintiff and the defendant are the owners of the properties adjacent to each other. The plaintiff is the owner of the property situated within the north of the defendant's property as well as the defendant is the owner of the property situated within the south of the plaintiff's property. There is a common east-west compound wall in their properties and it is common to both of them. The height of the common wall is only about 5.1/4 feet. The plaintiff is mostly residing in Coimbatore. The suit property situated is far away from his residence. In the year 1985, the defendant had unlawfully and illegally raised the height of the common compound wall in the middle to the length of 50 feet and to a height of 10 feet and put a tiled structure in such a manner so as to drain water into the property of the plaintiff.

3.2. It is also the case of the plaintiff that the water falling from such a height will certainly cause serious damage and loss to his property. Therefore, the plaintiff has issued a legal notice complaining about the unlawful activity of the defendant. Whereas, the defendant stated that the compound wall in question was constructed as early as in the year 1987 and completed within a period of few months. The defendant further stated that the plaintiff did not take any exception and only after getting consent from the plaintiff, he raised the height of the compound wall. Hence, the suit.

4. The appellants filed a written statement by admitting the ownership of the property and the location of the property. It is submitted by the appellants that the compound wall in question is common for both the appellants and the respondents and the height of the compound wall is raised only with the specific permission of the father of the respondents 2 to 8 and the first respondent is also aware of the construction put up by the first appellant and the construction was also put up in such a manner that water will not drain into the respondents' property. It is submitted by the appellants that no damage will be caused to the respondents' property. Hence, the appellants filed this appeal for dismissal of the suit.

5. Based on the above pleadings, the trial Court has framed the following issues:-

"(i) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for?

(ii) Whether the defendant has right of easement?

(iii) To what other relief the plaintiff is entitled for?"

6. During trial, on the side of the plaintiff, PW-1 was examined and Ex. A.1 to Ex. A.4 were marked. On the side of the defendant, DW-1 to DW-4 were examined and Ex. B.1 to Ex. B.8 were marked and Ex. C.1 to Ex. C.7 were marked as Court documents.

7. The trial Court based on the evidence and materials decreed the suit and the First Appellate Court has also confirmed the findings of the trial Court. As against which, the present Second Appeal is filed.

8. While admitting the Second Appeal, the following substantial questions of law have been framed:-

"1. Is the Lower Appellate Court correct in holding and confirming the findings of the trial Court that while the plaintiff has knowledge about the heightening of the common compound wall, which was done immediately after the purchase in the year 1982, is entitled to ask for a mandatory injunction/to remove the said compound wall after a considerable length and if so, is it not the fact that the doctrine of acquiescence come into operation?

2. Is it not open to the Court below to frame an issue on the basis of the plaint and the evidence adduced by the litigants in a p