JUDGMENT

This appeal is filed against the judgment and decree in A.S.No.60 of 2013 on the file of the Subordinate Court, Padmanabhapuram, confirming the judgment and decree in O.S.No.142 of 2007 dated 06.09.2013 on the file of the Additional District Munsif, Padmanabhapuram.

2.The appellant herein is the first defendant in the original suit. The first respondent herein is the plaintiff, second respondent herein is the second defendant in the original suit. The first respondent herein has filed an original suit before the learned Additional District Munsif, Padmanabhapuram in O.S.No.142 of

2007.

3. A brief substance of the plaint is as follows:

(i).The first defendant and the plaintiff are brothers. The second defendant is a building contractor who work for the first defendant. The suit property with an extent of 83 cents belonged to the father of the plaintiff and the first defendant by name Dominic. Dominic died in the year 1988, leaving the plaintiff, first defendant, his brothers and their mother as his legal representatives. On 24.10.1997, the legal representatives of Dominic partitioned the entire properties through a registered partition deed. The property was divided into 9 plots. Plot No.5 was given to the plaintiff, Plot No.4 was given to the first defendant and Plot Nos.3 and 6 were given to the other brothers. Plot No.7 was left as a common well. Plot No.8 was left as common pathway. Plot No.9 was left as a water course to let out the rain water from the common well through the road on the east. In Plot No.9 there was a wooden gate put up by the father to prevent the strangers to enter into the property.

ii). On 04.10.2002 The first defendant constructed a wall encroaching plot No.9 by removing the wooden gate. The plaintiff herein and his two brothers filed a suit in O.S.No.123 of 2003 before the trial Court for declaration, mandatory injunction and for permanent injunction. Plot No.9 was mentioned as Item No.1, Plot No.8 was mentioned as Item No.2 in the suit and the suit was decreed on 17.01.2005. The first defendant herein has filed an appeal in A.S.No.11 of 2006 and the appeal was dismissed by the Subordinate Court, Padmanabhapuram, on 07.07.2006. In the previous suit, a Court Commissioner was appointed and he filed a report and sketch which was marked as Ex.C2 and C4. After the dismissal of the earlier suit, the defendants constructed ground floor for the shopping complex in Plot No.4 and there is a projection in the roof with a width of one feet. Immediately the plaintiff presented a petition before the Thuckalay Police Station. This suit was filed to remove the roof which was projecting in item No.1 and for permanent injunction.

4.Brief substance of the written statement filed by the first defendant adopted by the second defendant is as follows:

(i)The legal heirs of Dominic partitioned the property with an extent of 83 cents and they divided the property into eight plots and there is no nineth plot. The defendant never removed any wooden gate. The first defendant never take any steps to put up a compound wall. The first defendant never resisted the usage of Plot-9 as a water course by the plaintiff. The first defendant obeyed the decree of the Court and caused no disturbance to Plot-9. The suit is affected on the principles of res judicata. As per the partition deed, the first defendant is having the title and is in enjoyment of Plot No.4 with an extent of 13.400 cents. He is paying the taxes and he put up construction in his own plot.

(ii)The plaintiff did not make any objection to the construction. Only a few days before the date of filing the suit in O.S.No.142 of 2007 before the learned Additional District Munsif, Padmanabhapuram, the plaintiff has given a complaint before the police that the roof is projecting. The width of the projection in the roof is only ½ feet which is 12 feet above the ground level. The construction made by the first defendant is no way resisting the water flow in Plot No.9. There was n