J U D G M E N T

The instant second appeal has been filed at the instance of the first defendant.

2. For the sake of convenience, the parties will be referred to according to their litigative status before the Trial Court.

The brief facts, which give rise to this second appeal are as follows:

3. According to the Plaintiff, he is the owner of the suit property comprised in S.No.2199, 22/1 in Block N.41, Ward No.4 in Nagapattinam. The first defendant has purchased a house on the western side of the above said property in S.No.2200. The first defendant's house was adjacent to the plaintiff's main wall, in which the roof of the plaintiff was resting. The first defendant has made an arrangement to remove the tiled roof and to put up RCC construction. Since the house of the plaintiff is very old, and the western main wall is made up of clay and mud, he requested the first defendant not to raise pillars nearer to the plaintiff's western main wall, and also requested him not to have any window on the eastern wall of his house, as the same would endangers the privacy of the plaintiff. It was the specific submission of the plaintiff that, at the time of construction, the first defendant had agreed to leave 1 ½ foot space from the plaintiff's western main wall. However, contravening to his promise and also in contravention to the approved plan of the second defendant, the first defendant had put up a wall, very near to the plaintiff's western main wall. Inspite of the objection for such an illegal construction, the first defendant had proceeded with construction hurriedly by employing more number of masons and labours. Further, the plaintiff had complained regarding such illegal construction of the first defendant to the second defendant. Even then, the second defendant did not take any steps to stop the construction. Hence the plaintiff had come forward with a suit for the relief of mandatory injunction and also for permanent injunction.

4. The said suit was resisted by the first defendant by contenting that on 14.11.2002, the first defendant had purchased the property from One Krishnaswamy and he wanted to put up RCC roof after removing the tiles and he also obtained approved plan from the Corporation. Thus defendant submits that the alleged western main wall belongs to him. The first defendant further submits that he has not put up any construction endangering the plaintiff's wall, and the so called window will in no way affect the privacy of the plaintiff or the family members.

Hence prayed to dismiss the suit.

Evidence and documents:

5. Before the trial Court, the Plaintff has marked 5 documents as

Exs.A1 to A5, and the defendants marked 3 documents as Exs.B1 to B3. As a Court document, Exs.C1 and C2 have been marked. On behalf of the plaintiff, defendants and as Court witness, each one witness was examined.

Findings of the Courts below:

6. The trial Court, after considering the oral and documentary evidence has dismissed the suit. Aggrieved by the said finding, the plaintiff preferred an Appeal, wherein the first Appellate Court found that the first defendant has put up construction in contravention to the plan approved by the second Respondent and also found that erection of window would impair the privacy of the Plaintiff. Eventually allowed the appeal, thereby decreed the suit on 28.07.2007.

Substantial questions of law:

7. At the time of admission of the second appeal, this Court has admitted this appeal with the following substantial questions of law:

(i) Whether the suit for mandatory injunction is barred under Section 69 of the Specific Relief Act in the absence of any suit notice being issued by the plaintiff before filing the suit claiming the said relief against the first defendant?

(ii) Whether the plaintiff is entitled to the decree for mandatory injunction and permanent injunction on the principles of right to privacy, when he himself has not let out any side set back on the western side of the suit property so as to enable the firs