M PARAMASIVAM Vs. I KARUPPAIAH

JUDGEMENT

(1.) The Plaintiffs, who were successful in the Trial Court and unsuccessful in the first appellate court, are the Appellants.

(2.) The Appellants filed the suit for mandatory injunction for removing the asbestos rafters placed by the first Respondent in the common wall XY as per the rough sketch and marked as Ex.A1 and to close the windows and door in the common wall XY, for permanent injunction restraining the Respondents from interfering with the right of the Appellants to have the sewage water through the passage marked as RS in Ex.A1, and also for permanent injunction restraining the second Respondent from placing any stones or gunny bags in the common pathway shown as KLMN in Ex.A1 and for damages.

(3.) The case of the Appellants was that the suit schedule properties which are a row of houses belonged originally to Soundaravalli and Vasanthakokilam. There are seven houses in the building and each of them were given door numbers as 39A, A1, B, C, D, E and F. The first Appellant purchased the portion C from the owners through the power agent on 9.7.2001 and the second Appellant purchased the portion D on the same date from the power agent of the owners. The portion D is on the eastern side of the portion C. The first Respondent purchased the portions A and A1 from the same owners on 4.7.2001 and the first Respondent also purchased the first floor of portion B. The walls which divide the houses are common walls belonging to the adjacent owners and the wall that divides the portion B and C in the ground floor is the common wall and similarly the wall which divides the upstair portion of B and C is also a common wall and shown as XY in the rough plan Ex.A1. The original owner, while constructing the upstairs in the B portion, opened door way in the common wall XY opening into the terrace portion of C purchased by the first Appellant and also placed two windows in the common wall facing the open terrace belonging to the first Appellant. The asbestos roof that covered the upstairs portion of B was also protruding towards east over the terrace portion of C belonging to the first Appellant and therefore, after the purchase of the portion C, the first Appellant requested the first Respondent to close the doorway and the windows in the common wall XY in the first floor and that was not accepted by the first Respondent.