JUDGMENT : N. SATHISH KUMAR, J. 1. Aggrieved over the concurrent findings of the Courts below passed a decree for mandatory injunction against the defendant/first appellant to remove the constructions put up on the common wall in the suit property, the present Second appeal is filed. 2. The parties are referred to as per their own ranking before the Courts below. 3. The brief facts leading to the filing of the present second appeal is as follows: 3.1. The plaintiff and the defendant are the owners of the properties adjacent to each other. The plaintiff is the owner of the property situated within the north of the defendant's property as well as the defendant is the owner of the property situated within the south of the plaintiff's property. There is a common east-west compound wall in their properties and it is common to both of them. The height of the common wall is only about 5.1/4 feet. The plaintiff is mostly residing in Coimbatore. The suit property situated is far away from his residence. In the year 1985, the defendant had unlawfully and illegally raised the height of the common compound wall in the middle to the length of 50 feet and to a height of 10 feet and put a tiled structure in such a manner so as to drain water into the property of the plaintiff. 3.2. It is also the case of the plaintiff that the water falling from such a height will certainly cause serious damage and loss to his property. Therefore, the plaintiff has issued a legal notice complaining about the unlawful activity of the defendant. Whereas, the defendant stated that the compound wall in question was constructed as early as in the year 1987 and completed within a period of few months. The defendant further stated that the plaintiff did not take any exception and only after getting consent from the plaintiff, he raised the height of the compound wall. Hence, the suit. 4. The appellants filed a written statement by admitting the ownership of the property and the location of the property. The defendant further stated that the plaintiff did not take any exception and only after getting consent from the plaintiff, he raised the height of the compound wall. Hence, the suit. 4. The appellants filed a written statement by admitting the ownership of the property and the location of the property. It is submitted by the appellants that the compound wall in question is common for both the appellants and the respondents and the height of the compound wall is raised only with the specific permission of the father of the respondents 2 to 8 and the first respondent is also aware of the construction put up by the first appellant and the construction was also put up in such a manner that water will not drain into the respondents' property. It is submitted by the appellants that no damage will be caused to the respondents' property. Hence, the appellants filed this appeal for dismissal of the suit. 5. Based on the above pleadings, the trial Court has framed the following issues:- "(i) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? (ii) Whether the defendant has right of easement? (iii) To what other relief the plaintiff is entitled for?" 6. During trial, on the side of the plaintiff, PW-1 was examined and Ex. A.1 to Ex. A.4 were marked. On the side of the defendant, DW-1 to DW-4 were examined and Ex. B.1 to Ex. B.8 were marked and Ex. C.1 to Ex. C.7 were marked as Court documents. 7. The trial Court based on the evidence and materials decreed the suit and the First Appellate Court has also confirmed the findings of the trial Court. As against which, the present Second Appeal is filed. 8. While admitting the Second Appeal, the following substantial questions of law have been framed:- "1. Is the Lower Appellate Court correct in holding and confirming the findings of the trial Court that while the plaintiff has knowledge about the heightening of the common compound wall, which was done immediately after the purchase in the year 1982, is entitled to ask for a mandatory injunction/to remove the said compound wall after a considerable length and if so, is it not the fact that the doctrine of acquiescence come into operation? 2. 2. Is it not open to the Court below to frame an issue on the basis of the plaint and the evidence adduced by the litigants in a particular proceeding?" 9. The learned counsel appearing for the appellants submitted that though the compound wall is common to both the appellants and the respondents, the construction was put by the first appellant only with the permission of the first respondent. It is their further contention that the first appellant himself has admitted the fact that the compound wall was put up as early as in June 1987 and whereas, the suit has been filed by the respondents in the year 1989 after a period of two years. Hence, it is the contention of the appellants that the suit is not maintainable and it is barred by limitation. It is their further contention that the compound wall in question was raised only after getting oral consent from the first respondent and the trial Court had not answered this aspect. It is their further contention that only after getting oral consent from the first respondent, the compound wall is constructed and it could not be demolished. Hence, they prayed for allowing the appeal. 10. The learned counsel appearing for the respondents would submit that the contention of the appellants is without any evidence and the property itself was purchased by the plaintiff in the year 1982 and the compound wall itself was constructed in the year 1987 and the suit has been filed within a period of two years. It is their further contention that if the construction was put up only after getting permission from the first plaintiff, the same has to be established by the defendants. But, there is no pleading as regards the permission given by the first respondent. The Courts below has clearly found that the construction was put up only without permission of the first respondent which was nearly raised about 10 feet height and one feet width. Therefore, when the defence of the appellants is found to be false, the respondents/plaintiffs being the owner of the compound wall, are certainly entitled to mandatory injunction. Hence, he prayed for dismissal of the appeal. 11. Therefore, when the defence of the appellants is found to be false, the respondents/plaintiffs being the owner of the compound wall, are certainly entitled to mandatory injunction. Hence, he prayed for dismissal of the appeal. 11. In the light of the above submissions and on analysing the materials and evidences, it is clear that it is not disputed by both the parties that the subject matter of the property belonged to both the parties. The first appellant purchased the property along with the compound wall in the year 1987. It is not the case of the appellants that the compound wall existed even while the purchase made by the first respondent. On the other hand, it is the specific contention of the appellants that the construction was put up by the first appellant and the compound wall was raised upto ten feet height in the year 1987 that too with the permission of the first respondent. Whereas, there is no pleadings whatsoever as to the nature of the permission given by the first respondent and the date of construction etc. 12. The plaintiff has admitted in his evidence that the compound wall was demolished in the year 1983 and the construction was put up in the year 1985. On perusal of the entire evidences, though such reference was made in the PW-1's evidence, this Court is able to see that the year of the construction has been wrongly typed in the deposition for the simple reason that the first defendant has purchased the property in the year 1987 and the suit has been filed in the year 1989 and therefore, the respondents' evidence that the first appellant put up the construction in the year 1987 indicate that there was mistake in the deposition. Even in the evidence, the appellants had clearly admitted that only after the purchase of the property, the respondents have given a consent for raising the compound wall. The evidence of DW-1 and DW-2 would clearly indicate the fact that the construction was put up only after getting consent from the first respondent. However, the nature of the consent has not even pleaded. There was no witness except the evidences of DW-1 and DW-2 to prove the said consent. The evidence of DW-1 and DW-2 would clearly indicate the fact that the construction was put up only after getting consent from the first respondent. However, the nature of the consent has not even pleaded. There was no witness except the evidences of DW-1 and DW-2 to prove the said consent. Admittedly, the property is a common property at the time of purchase by the first defendant and the compound wall was not raised to such level (i.e.,) 10 feet height. Only after his purchase in the year 1987, the same was raised, which had been admitted by the first defendant. 13. In such view of the matter, this Court is of the view that when the property held to be a common to the joint co-owners, each are entitled to use the common wall and one cannot make any construction without getting permission from the other co-owner. If one co-owner is allowed to use the wall exclusively, it will certainly infringe the rights of the others. The nature of the construction put up by the defendants and the photographs filed before the trial Court would clearly indicate that after raising the height of the compound wall, the rain water drained into the property of the plaintiffs and it may lead to serious damage to the other co-owners. 14. At this juncture, it is relevant to refer the judgment of this Court reported in C. Mayam Perumal Konar and Others vs. Thangammal, 1996 (2) MLJ 505 in which it has been held that when the disputed wall is a party common wall and the plaintiff is entitled to the relief of permanent injunction and also entitled to the relief of mandatory injunction cannot be said to be either improper or perverse. In Paragraph Nos. 11 and 15 of the above said judgment, it has been held as follows:- "11. In M.P. Philip vs. Chinna Subba Iyer, AIR 1956 Tra. Cochin 57, it is observed that: "It is settled law that any one of such co-owners cannot build upon such a party wall so as to make exclusive use of the wall for himself, without the consent of the other co-owner. If any such unauthorised construction is attempted by one co-owner the other co-owner has the right to get such unauthorised construction removed. If any such unauthorised construction is attempted by one co-owner the other co-owner has the right to get such unauthorised construction removed. The act of one co-owner in raising the height of the party wall build to his own convenience without the consent of the other co-owner will constitute trespass in the eye of law. The other party is entitled to a mandatory injunction so that the unauthorised construction over the wall is removed and the position of the wall is restored to the situation in which it existed prior to such unauthorised construction." 15. On the basis of the principles laid down by the above referred decisions, the concurrent findings of the Courts below that disputed wall is a party common wall and the plaintiff is entitled to the relief of permanent injunction and also the relief of mandatory injunction cannot be said to be either improper or perverse. As a matter of fact, the evidence and the Commissioner's report and plan disclose that in the party-wall wherein lies the portion X, Y, F, E under Ex. C-3, the entire party-wall has been occupied by the construction of the defendants and the defendants have also put up number of pillars on the east of the party-wall over which only the construction rests. In these circumstances, I am in entire agreement with the findings of the Courts below that raising of the party-wall to a considerable height by the defendants and wherein the entire party-wall has been occupied by the defendants would virtually prevent anyone from making use of the same for any other purpose. Hence the Courts below are justified in granting the decree for declaration, permanent injunction as well as mandatory injunction in favour of the plaintiff. Consequently, I am unable to accept any of the arguments of the learned counsel for the appellant. Consequently, the Second Appeal fails and is dismissed. No order as to costs." 15. Having regard to the above said judgment and after analysing the entire materials and evidences, this Court is of the view that this Court do not find any infirmity in the judgment of the trial Court. Accordingly, the substantial questions of law are answered. 16. It is not the case of the appellants that the respondents have knowledge and acquiescence about the construction and therefore, the question of applying doctrine of acquiescence will not arise in this case. 17. Accordingly, the substantial questions of law are answered. 16. It is not the case of the appellants that the respondents have knowledge and acquiescence about the construction and therefore, the question of applying doctrine of acquiescence will not arise in this case. 17. The first defendant has not entered into the witness box, whereas, his grandson deposed as power of attorney of the first defendant. After his examination is over, the first defendant himself entered into the box and examined himself as DW-2. Once his power of attorney has deposed, the question of again entering to fill the lacuna cannot be permitted. The party to proceedings should be examined first before any other witness on his side. However, the Court can permit the party to examine him later, after the witness is examined. However, in this case, no permission whatsoever obtained by the defendants to examine himself at later point of time. 18. Therefore, the evidence of the defendants cannot be given much importance in this case. At any event, even when the entire evidences of both DW-1 and DW-2 are scanned, the specific contention that the construction was put up only with the consent has not been established. In such view of the matter the defence taken by the defendants seems to be false. 19. With the above observation, the Second Appeal stands dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.