(1.) The defendant in O.S. No. 189/1987, on the file of Prl. Civil Judge (Jr. Dn.), Gadag, has come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration, permanent injunction and as well as mandatory injunction.
(2.) The brief facts leading to this second appeal are that the plaintiff is the owner of suit schedule property bearing TMC No. 1261 (old VPC No. 1687), situated in Mulgund town of Gadag district. The said suit is filed by him contending that the sole defendant who is the owner of property bearing TMC No. 1209 situated on the northern side of the suit schedule property has initially tried to demolish the common wall and subsequently he raised the existing wall and thereby built first floor of his property with the wall of his building resting on the common wall and also by opening a window towards the suit property in which he has no manner of right.
(3.) Hence the present suit was filed for the relief of declaration that the wall situated between the property of himself and the defendant is common wall which is available to the benefit of both plaintiff and as well as defendant and also for the relief of mandatory injunction restraining the defendant from disturbing the right of plaintiff to enjoy the common wall and also for mandatory injunction to remove the window which is put in the first floor portion of the wall constructed above the common wall belonging to the plaintiff and defendant. In addition to that he also sought for a prayer to restrain the defendant from allowing water flowing from his bathroom entering into the property of plaintiff through a sprout which is available in the common wall.