The burden of proof lies with the plaintiff to establish their case, and the court will uphold decisions based on evidence presented, rejecting contentions of delay and laches, and the applicability of the Doctrine of Res judicata.

JUDGMENT

(Prayer:Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 13.07.2011 passed in A.S. No.5 of 2011, on the file of the Principal Subordinate Judge, Erode, upholding the decree and judgment dated 19.01.2010 passed in O.S. No.162 of 2006, on the file of the II Additional District Munsif, Erode.)

1. The defendant who failed before both the courts below has filed this present Second Appeal.

2. The respondent/plaintiff filed the suit in O.S. No.162/06 before the II Additional District Munsif, Erode for a permanent injunction restraining the appellant/defendant from interfering with his peaceful possession and enjoyment of the suit property and also for a mandatory injunction directing the appellant/defendant to remove the encroachments made by him on the common wall. The suit property as described in the plaint, is a house bearing Door No.27, T.S. No.43 P, East Kongalamman Kovil Street, Erode Taluk and District, measuring 997 sq.ft. within the boundaries stated therein.

3. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

4. The case of the plaintiff in nutshell is as follows:

I. The suit property and the other properties originally belonged to one S.K.H.M. Kahija Bee @ Jimminiammal, wife of S.K. Mohammed Ibrahim Sahib. After her death, her legal heirs divided her properties through a registered partition deed dated 24.12.1971 (Ex.B2).

II. The suit property was allotted to the share of one E.K.M. Abdul Gani and E.M.M. Mohammed Hassan Sahib, sons of E.K.Mohammed Ibrahim Sahim and brothers of S.K.H.M. Kahija Bee @ Jimminiammal.

III. The plaintiff and his brothers purchased the suit property from E.K.M. Abdul Gani and the legal heirs of the deceased E.M.M.Mohammed Hassan Sahib through a registered sale deed dated 18.08.1994 (Ex.A1). Ever since the date of purchase the plaintiff and his brothers were in possession and enjoyment of the same by paying necessary tax to the Government.

IV. Subsequently, the plaintiff and his brothers divided their properties in a partition suit filed by them in O.S. No.655 of 1998 before the same court. In the final decree, the suit property was allotted to the share of the plaintiff. Thus the plaintiff is the absolute owner of the suit property.

V. The defendant is the owner of the property which is situate on the northern side of the plaintiff''s property. The defendant had acquired title to his property through a registered settlement deed dated 21.01.2000 (Ex.B4) executed by one Raffia Bibi, the mother of the defendant.

VI. The plaintiff and the defendant are equally entitled to enjoy the wall which lies between their properties. The sale deed in favour of the plaintiff clearly mentions that the wall between the property of the plaintiff and the defendant should be enjoyed in common and that the plaintiff is entitled to half share in the said wall. The defendant, however, constructed a building in his property which rests on the common wall. Thus he has encroached upon the entire common wall.

VII. The plaintiff wanted to reconstruct his property and requested the defendant to remove the encroachment made by him over the common wall. However the defendant rushed to the court and filed a false suit in O.S. No.62/2005 before the I Additional District Munsif, Erode with an allegation that the plaintiff attempted to demolish the wall. The interim injunction application filed by the defendant was dismissed and in the appeal the First Appellate Court directed the trial court to expedite the trial and both the parties should maintain status quo till the disposal of the suit.

VIII. Since the defendant had filed the said suit alleging that the plaintiff is the wrong doer, he is contained to file the present suit.

5. The