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6.Further, it is the plaintiff's case that beyond the wall, the plaintiff was entitled to the 3rd item of suit property for maintaining/colour washing the wall. Since the defendant had disturbed the plaintiff's usage of the lane and had put up a Gate on the eastern side of the lane, the plaintiff was constrained to file a suit in O.S.No.161 of 2007 in question. DEFENDANT'S CASE:

7.The defendant had denied the statements made in the plaint and had submitted that their great grand father, Muthu Konar had purchased the northern portion of the 2nd item of the suit property under a sale deed dated 04.10.1922. Since the sale deed is of the year 1922, the southern boundary has been clearly defined as common wall of the plaintiff's property. The said Muthu Konar died leaving behind his only legal heir, Esakki Konar, who had executed a will dated 08.12.1967 in a sound disposing state of mind and had bequeathed the property to his wife and his son, Nallamuthu @ Thalavai Konar. The said Esakki Konar died 25 years prior to the filing of the suit and from that date, his legal heirs have been enjoying the said property. The defendant is one of the sons of said Nallamuthu @ Thalavai Konar. Even in the said will, the 2nd item of suit property has been http://www.judis.nic.in described as common wall and the Gate had been installed in the eastern end of the pathway 10 years prior to the filing of the suit. Hence, the defendant prayed for dismissing the suit.

(iii) Whether the plaintiff is entitled for mandatory injunction with regard to 4th schedule property as prayed for?

(iv) Whether the 3rd schedule wall is a common wall as averred in the written statement?

(v) Is if true that the 4th schedule gate was put up some 10 years back as averred in the written statement?

(vi) To what other relief?

9.On the side of the plaintiff, P.W1 to P.W3 were examined and Ex.A1 to Ex.A8 were marked. On the side of the defendant, D.W1 and D.W2 were examined and Ex.B1 to Ex.B6 were marked and Court documents Ex.C1 to Ex.C4 were marked.

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10.The learned II Additional District Munsif, Tirunelveli, had returned a finding that the 2nd schedule property is the common wall and had held that the plaintiff was not entitled for the relief of declaration. As regard the gate installed in the 3rd schedule property, the learned Judge held that the plaintiff was not able to establish that the disputed gate has been installed within three years before the filing of the suit. Ultimately, the learned II Additional District Munsif, Tirunelveli, had proceeded to dismiss the suit on 02.02.2013.

17.In view of the categoric admission of P.W2, the Courts below have disbelieved the said will since it has not been proved in the manner known to law. I do not find any reason to interfere with this finding. Ex.B2 is of the year 1922 and in Ex.B2, it is stated that the property purchased by the defendant's great grand father had the southern boundary described as common wall.

18.The fact that Ex.B2, which is of the year 1922, clearly shows that the plaintiff does not have any right in the northern portion of the common wall and the said description was once again reiterated in Ex.B3, will, dated 08.02.1967. The plaintiff cannot claim a right to the common wall. Ex.A8, which is of the year 1981, clearly states that the northern portion of the 2 nd item of suit property, namely, the 3rd item of suit property is described as the property of the defendant's predecessor in title. Apart from this, Ex.A8 has not been proved in the manner known to law.