K GPUTTASAMIAH Vs. GANGAMMA

JUDGEMENT

(1.) This appeal arises out of a suit for mandatory injunction directing the defendant (a) to remove the latrine pit kept by him on the sides of the northern wall of the plaintiff's house and put the same 3 ft. To 4 ft. off farther so that no damage may be caused to the said wall of the plaintiff's house and also to repair the drain so that the water of eaves of the plaintiff's house and the water of the defendant's house may flow out easily; and (b) to allow the workers of the plaintiff to enter upon the defendant's open yard for repairing the northern wall of the plaintiff's house and not to cause any obstruction in so entering and carrying out the repairing work.

(2.) The defendant is the appellant before me. The first Court dismissed the suit. The lower appellate Court reversed the said decision of the first Court. The present appeal has been filed against the said decision of the lower appellate Court.

(3.) The plaintiff and the defendant are adjacent owners. Their respective premises are separated by one wall which is the wall in question. The plaintiff's case is that the said wall belonged to her exclusively, the defendant's case being that the said wall was a common wall. The defendant made an alternative claim, viz., that even if the wall be held not to be a common wall, the plaintiff has no easement right to enter into his portion and repair the said wall.