1. This second appeal involves a very important point of law. It is admitted in feet, it has been decided in a previous suit—that the wall in dispute between the houses of the plaintiff and the defendants is a party wall. The plaintiff's case is that the first defendant has built on that wall another portion nearly 6½′ high. As this has been done without the plaintiff's consent and as the defendant has no right to do so, the plaintiff has prayed for a mandatory injunction requiring that the wall be pulled down and brought back to its original position. The contention of defendant 1 was that it was a party wall in the sense that half of it on the defendant's side belonged to defendant 1 and the other half to the plaintiff.

2. He also pleaded that he raised the wall with the plaintiff's consent. Defendant 2 contended that he had nothing to do with the suit wall and that he was unnecessarily made a party to the suit. At the trial, the first defendant did not press his contention that the longitudinal half of the wall oil his side exclusively belonged to him, thus accepting the position that the wall was a party wall. The trial Court held that the plaintiff was entitled to the mandatory injunction and gave him a decree. In appeal by defendant 1, the decree was confirmed Defendant 1 has come up in second appeal. By his application dated 27-1-1959 under O. XLI, Rule 27, C.P.C, the appellant has sought to produce two documents which are certified copies of pursis passed on by each of the parties in the previous suit No. 237/50 on the file of the Civil Judge, Junior Division, Jamkhandi. The learned Advocate for the respondent contends that he had no time to put in his counter to this application. All the same, the Advocates on both the sides have argued on that application about the admissibility of the documents.

3. The learned Advocate for the respondent has contended that the provisions of O. XLI, Rule 27, C.P.C apply only to first appeals and not to second appeals. He urges that the High Court has no jurisdiction in second appeals to admit fresh documents under the said rule which is intended only for first appeals. This question needs careful examination.

4. If we look to the scheme of the Civil Procedure Code, we find that Part VII which relates to appeals is subdivided into five divisions viz.,

1. appeals from original decrees (Ss. 96 to 99),

2. appeals from appellate decrees (Ss. 100 to 103);

3. appeals from orders (Ss. 104 to 106);

4. general provisions relating to appeals; (Ss. 107 and 108);

5. appeals to the Supreme Court (Ss. 109 to 112).

5. It will be found that the scope of the provisions relating to second appeals is very narrow. Whereas S. 96 provides that an appeal shall lie from every decree, except one passed by consent of parties, S. 100 lays down that a second appeal shall lie only on one of the three grounds, viz.,

(a) when the decision is contrary to law or to tome usage having the force of law;

(b) when it has failed to determine some material issue of law or usage having the force of law; and

(c) when there is a substantial error or defect in procedure which may have produced some error or defect in the decision of the case upon the merits.

6. Section 101 lays down emphatically that no second appeal shall lie except on the said grounds. From these provisions, it is clear that no second appeal can lie on a question of fact. In other words, the High Court, in second appeal, is bound to accept the finding of the first appellate court as final and it cannot enter into questions of fact. An exception to this rule is provided by S. 103. It provides that the High Court in second appeal may determine any issue of fact where it is necessary for the disposal of the appeal under two circumstances viz.

(1) where such an issue has not been determined by the lower appellate Court;

(2) where it has been wrongly determined by that Court by reason of any illegality, omission or error or defect such as is referred to in S. 100(1).

7. Except under such circumstances, it is not open for the High Court in second appeal to enter into questions of fact.

8. Examining further the scheme of the Civil Procedure Code, we find that Order XLI, relates to appeals from original decrees and Order XLII to appeals from appellate decrees. The latter Order consists of only one Rule which lays down that “the rules of O. XLI shall apply so far as may be to appeals from appellate decrees”. It is obvious that the use of the clause ‘so far as may Be’ in the above Rule indicates that, although generally the provisions of O. XLI are applicable to second appeals, some of them cannot be applied. If all the Rules are applicable the above qualifying clause would not have been introduced.

9. The following are some of the rules inapplicable to second appeals. Rule 20 of Order XLI empowers an appellate Court to implead any person who was a party to the suit but who has not been made a party to the appeal if he finds that he is interested in the result of the appeal. A question had arisen before the Allahabad High Court whether this rule empowers the High Court in second appeal to add such a person as a party. In the case of Chunni v. Lala Ram, ILR 16 All 5, and also in Pach Kauri v. Ram Khilawan, ILR 37 All 57 : (AIR 1914 All 293), that Court held in the negative. This is one of the provisions which possibly was not intended to be used in second appeals. Dealing with the provisions of R. 31 of Order XLI, C.P.C, which prescribes that the judgment of an appellate Court should contain, Mahamood J. expressed in Sohawan v. Babu Nand, ILR 9 All 26 that the said Rule does not apply to judgments of High Courts in second appeals. In the case of Sundar Bibi v. Bisheshar Nath, ILR 9 All 93 (FB), Sir John Edge (C.J) also expressed:

“It was never intended that S. 574 of the Code (which is the same as Order XLI, Rule 31, C.P.C) should apply to cases where the High Court, having heard the judgment of the Court below and arguments thereon, comes to the conclusion that both the judgment and the reasons which it gives are completely satisfactory, and such as the High Court itself would have given.”

10. Let me now examine whether the provisions of R. 27 of Order XLI are applicable to second appeals. As above mentioned, the only occasion when in a second appeal the High Court can go into a question of fact is circumscribed by the provisions of S. 103, Civil P.C One of the conditions for such going into the questions of fact under that section is when the evidence on record is sufficient to determine any issue of fact necessary for the disposal of the appeal.

11. This necessarily implies that even if the evidence on record is insufficient, the High Court cannot allow the evidence to be supplemented for that purpose of going into a question of fact. If so, it follows that the provisions of R. 27 of Order XLI, Civil P.C cannot apply to second appeals. To allow fresh evidence in second appeals would amount to going into a question of fact even where the evidence on record is insufficient. This would be contrary to the provisions of S. 103, Civil P.C

12. This has been a subject-matter for consideration by various High Courts from time to time. A Full Bench of the Madras High Court went into the question in the case of The Secy. of State for India v. Manjeswar Krishnaya, ILR 31 Mad 415. Relying on the earliest decisions in Ramachandra v. Krishnaji, ILR 28 Bom 4 and Raru Kutty v. Mamad, ILR 18 Mad 480, it upheld the objection against the admissibility of fresh evidence in second appeal and dismissed the petition.

13. In Wali Mahomed v. Mahomed Bakash, AIR 1924 Lah 444, their Lordships accepted the contention that Rule 27 of Order XLI, Civil P.C does not provide for the production of additional evidence in second appeals. A Bench of the Calcutta High Court also took a similar view in Shamsuddin Biswas v. Molannessa Bibi, AIR 1926 Cal 941.

“As we sitting here cannot be said to require any document to be produced or any witness to be examined to enable us to pronounce judgment on a question of fact or for any other substantial cause to enable us to pronounce judgment on a question of fact, if we are to accept this document we should have to reverse the finding of fact arrived at by the Court of appeal below and to send back the case for re-trial after taking into consideration the evidence which we allow to be produced in this Court. But we can set aside a judgment in second appeal only on the ground set forth in S. 100 of the Civil P.C The findings of fact which had been arrived at by the lower appellate Court are not tainted by any of the defects mentioned in S. 100 in which case only we can interfere in second appeal. It seems to me that we are, therefore, not in a position to accept fresh evidence in second appeal with regard to a question of fact under the circumstances mentioned by the appellant.”

14. The ruling of the Calcutta High Court in AIR 1926 Cal 941 was followed by the Allahabad High Court in Rang Lal v. Lilawati, AIR 1929 All 375:

“In second appeals, decisions of fact cannot be impugned. It is clear that this evidence is tendered in order to impugn a question of fact. I hold that it is useless for this Court to accept the evidence if it cannot use that evidence for the purpose of which it is tendered, and I further hold, it cannot.”

15. A similar question had come up before the Madras High Court in Subbaraja v. Narayana Raja, AIR 1954 Mad 1074 : 1954 Mad WN 677. Most of the above said cases were considered in the course of the judgment in that case, and it has been observed:

“The circumstances under which a second appellate court may determine an issue of fact are therefore limited to the conditions arising under S. 103 which makes the position clear that so far as evidence is concerned, on which an issue of fact may be determined, the evidence on record must be sufficient to enable the High Court to decide the question of fact. That necessarily implies that it should not be ordinarily competent to the High Court in second appeal to consider any other evidence excepting the evidence on record.”

16. The learned Advocate for the appellant relies on a ruling of the Calcutta High Court in Sashikantha v. Jagannath, AIR 1946 Cal 518. In that case, after the decision of the trial Court, an application was made to it for review of the judgment on the ground that the plaintiff had discovered certain facts after the judgment. After the filing of that application an appeal was filed before the lower appellate Court without any application for reception of additional evidence. After the appeal was disposed of, an application for review of judgment was filed before the lower appellate Court on the ground that the applicant had then, for the first time been able to procure some relevant documentary evidence.

17. A week later i.e on 18-8-1942, a second appeal was filed before the High Court. The review application filed before the lower appellate Court was dismissed on 18-12-1942. In the High Court, an application was filed on 10-1-1946 for receiving fresh evidence, viz., two documents. The learned Judge observed:

“The question is whether I have jurisdiction in second appeal to entertain the application which has been made, apart from its merits. In my view, I have such jurisdiction.”

18. From the discussion in the course of the judgment, it does not appear that the question of the applicability of the provisions of O. XLI, R. 27, Civil P.C to second appeals was specifically raised. But it cannot be said that it was not implied in the decision. It appears that the question decided was that since the application by way of review was dismissed by the lower Court, thereafter an application for admitting documents in appeal could not be entertained. This can be seen from the observations of the learned Judge:

“On the rejection of the application (for review) the decree as passed by that Court remained as it was and when that decree came to be dealt with by this court in second appeal, it is impossible to say that an application for admission of additional evidence would not lie as a matter of law, because such an application, made in the form of an application for review, had been rejected by the lower appellate Court. The question before me simply is whether the appellant has been able to bring himself within the limits of O. XLI, R. 27, Civil P.C”

19. The further discussion centres round the question as to the circumstances under which documents can be admitted under O. XLI, R. 27 and there is no discussion as to whether the provisions of R. 27 of O. XLI admit of production of documents in second appeals. It can also be seen from the discussion that none of the above mentioned cases—not even the case of the Calcutta High Court in AIR 1926 Cal 941 referred to above—were considered. Under such circumstances, I find considerable difficulty in accepting the proposition that fresh documents can be admitted in second appeal under O. XLI, R. 27, Civil P.C

20. On a careful consideration of the foregoing, I reach the conclusion that the provisions of R. 27 of O. XLI, Civil P.C are not applicable to second appeals and no document can be allowed to be produced in second appeal.

21. The documents sought to be produced purport to be certified copies of two memos, one by each party, in an earlier suit. According to the learned Advocate for the appellant, they are necessary for the purpose of showing that both parties agreed to the erection of the portion of the wall in dispute. Hence, on the basis of these documents it is, sought to be proved that there was an implied consent between the parties. This is a question of fact. No document could be produced in second appeal in order to prove a question of fact. Besides, the copies of the documents were taken in 1954. There is obviously no explanation as to why they were not produced in the trial Court or in the first appellate Court. They cannot be permitted to be produced for the first time in second appeal.

22. I next come to the main point in the case. The facts of the case have already been narrated in the opening paragraph. It is clear from it that the only point for consideration is whether, in the case of a party wall, any one of the joint owners has a right to raise it without the consent of the other and whether, if one of them does so, the other has a right to claim a mandatory injunction for removing it. As already mentioned, both the lower Courts have held that the defendant in this case had no right to build on the party wall and have therefore given a mandatory injunction requiring the additional portion so built to be pulled down.

23. The learned Advocate for the appellant contends firstly that half the site below the wall and half the wall on the side of the defendant belongs to him and that the other half belongs to the plaintiff. He, therefore, contends that the defendant can raise his side of the wall. According to him, this is exactly what he has done. If he has built only on half the portion of the total breadth of the party wall, and if he has not touched the other half on the side of the plaintiff it is urged that the plaintiff has no right to contend that the defendant's action is in any way wrongful. This contention of the appellant is hardly supported by the facts of the case.

24. No doubt, such a contention was raised by the defendant in his written statement Exhibit XV. But, in the course of the proceedings before the trial Court, the defendant gave a pursis Ext. VII giving up the contention of ownership to half the portion and accepting that the wall in question is a joint common wall. It is in view of this stand adopted by him that issue No. 3 was dropped as not pressed. He cannot now be heard to say contrary to his admission and to the stand deliberately adopted by him in the trial Court. The next point urged on behalf of the appellant is that building of the wall in question has not caused any prejudice or injury to the plaintiff or to the wall in question.

25. The plaintiff has neither pleaded any such injury or inconvenience nor has he claimed any damages. In this connection, it is also urged that the act of infringement by any co-sharer of the rights of the other co-sharer does not entitle him to a mandatory injunction to pull down the structure put up by the former. In support of these contentions of his, he has relied on several rulings. But, before I consider the cases cited by him, it would be necessary to understand the implications of the rights of parties in a party wall.

26. The ordinary meaning and legally accepted notion of the term ‘party wall’ is that it is a wall in between the properties of two adjoining owners and that these owners are tenants in common in respect of that wall. In the case of a land held jointly each of the co-tenants is entitled to the possession of the land and also to make use of it in any reasonable manner. Even if one of the co-owners receives some benefits more than he ought to get, the proper remedy of the other party is to call upon him to account. In case, one of the co-tenants builds upon a certain portion of an open site, the remedy open to the other party is to require that the part so built upon should as far as possible be apportioned to the share of the person who built it.

27. Ordinarily one tenant in common or a joint tenant of a land is not entitled to file an action for trespass against his co-tenant. But there are two exceptions to this general rule:

(1) When the act of trespass amounts to a complete exclusion or ouster of the other co-tenant, or

(2) when it amounts to a destructive waste of the common property.

28. The above proposition is laid down by Lord Hatherly in Jacobs v. Seward, (1872) 5 HL 464:

“The cases in which trover would lie against a tenant in common are reducible to this. They are cases in which something has been done which has destroyed the common property, or where there has been a direct and positive exclusion of the co-tenant in common from the common property, he seeking to exercise his rights therein and being denied the exercise of such rights.”

29. Although the above is the general rule in respect of property owned by tenants in common and although ordinarily a tenant in common is entitled to make use of the joint property in any reasonable manner, the application of the said principles to a party wall leads to different results. It cannot be doubted that a party wall—much like any other tenancy in common—has to be used by the co-tenants for the common benefit or for the convenience of both the co-tenants. At the same time, neither of the two co-tenants is entitled to do any act which is likely to interfere with the enjoyment of the wall by the other.

30. If the height of a party wall is raised by putting some more construction on it or is lowered by removing a part of it, it is no longer the same wall as before. The parties on either side cannot have the same use of it. There is to some extent an interference with the right of the other party. Be sides this, it is also considered that the right of making use of the top of the wall by the parties or any one of them, is taken away by the said act.

31. It is considered to be an exclusion of one party by the other from the use of the wall as before. It is on this basis that no party is entitled either to raise the wall or to lower it without the consent of the other. In case one of the parties does so, that act amounts to exclusion, which is one of the exceptions above noted, and the party aggrieved is entitled to have the wall brought to the former position. The cases of party wall form a distinct category to which are applied the above principles.

32. They are distinguishable from the cases of all other common property which consist of open sites.

33. Let me now refer to the case law. The leading English case on the point is Watson v. Gray, (1880) 14 Ch Dn 192. Dealing with the question whether putting up an additional portion by one party on the existing party wall amounts to a violation of the rights of the other, Fry J. observes:

“I have come to the conclusion that the plaintiff was not justified in doing what he did (i.e in building the additional portion of the wall).”

34. The idea is that such an act amounts to an actual ouster by one party of the other from possession and use of the wall. This is expressed in the following words:

“Just so in the present case, the plaintiff has excluded the defendant from the use of the top of the wall.”

35. This case has been followed in several English as well as Indian cases as laying down the correct law.

36. In Kanakayya v. Narasimhalu, ILR 19 Mad 38, one of the two tenants-in-common of a party wall, raised the height of the wall with a view to building a superstructure on his own tenement. This was done without the consent of the other tenant in common. As a matter of fact, the latter had suffered no inconvenience by the raising of the height of the wall. He nevertheless sued for a mandatory injunction that the newly erected portion should be removed. Relying on the above case (1880) 14 Ch. D 192 the Court held that the plaintiff was entitled to a decree for removing the portion of the wall newly raised. This decision was approved by the Bombay High Court in Shivputrappa v. Shivrudrappa, AIR 1926 Bom 387. Basing his conclusions on (1880) 14 Ch. D 192, Madeod C.J observed:

“If one co-owner raises a party wall without the consent or acquiescence of the other co-owner, the latter can himself remove the raised portion of the wall without rendering himself liable to a claim for damages or may come to Court and ask for a mandatory injunction in order to get the raised portion removed.”

37. In Ganpat Rai v. Sain Das, AIR 1931 Lah 373, relying on the same English case, Shadi Lal C.J has observed:

“A mandatory injunction can be granted in case, where one of the two tenants-in-common of a wall between two adjoining houses excludes the other from the use of it by placing an obstruction on it. The only remedy of the excluded tenant is to remove the obstruction as the common wall cannot be treated as divided longitudinally into two strips, one belonging to each of the neighbouring owners. Both the owners are entitled to use the whole width, subject to similar rights of each other.”

38. Similar is the conclusion in Mathubhai v. Om Prakash, AIR 1951 Nag 389:

“One of the two co-sharers in a party wall cannot build upon that wall so as to make exclusive use of it. Since a co-owner in such a case has a right himself to remove the raised portion of the party wall, he is, a fortiori entitled to come to the Court and ask for a mandatory injunction in order to get the raised portion removed.”

39. Most of the above cases were referred to and followed in Durga Parshad v. Jheetar Mai, AIR 1954 Punj 125. The learned Judge observes:

“The two adjoining owners of a party wall are tenants-in-common, and the wall cannot be treated as a wall divisible longitudinally into two strips one belonging to one neighbour and the other to the other. If one of them excludes the other from the use of the wall by building upon it, the excluded owner will be entitled to a mandatory injunction for the removal of the obstruction.”

40. It will thus be found from the foregoing decisions that in the case of a party wall, the increasing or lowering its height amounts not only to an interference with the right of use of the other, but it amounts to an exclusion. It is on this principle that it has been uniformly laid down that the party aggrieved is entitled to have the wall brought back to the original position.

41. As against these rulings, the learned Advocate for the appellant cites several authorities to show that even assuming that increasing the height of a wall amounts to an interference with the right of use of the other, unless that interference causes any loss or damage to the other party, it should not be removed. In such cases, the proper remedy is for an action for damages and not for a mandatory injunction for removing the wall. In support of this view, he relies on Manilal v. Nanubhai, AIR 1947 Bom 394. In that case, Lokur J. observed:

“One co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights, absolutely, and without reference to the amount of damages to be sustained by the one side or the other from the granting or with-holding of the injunction.”

42. That was not a case of a party wall. The joint property in that case was a lane measuring 48′×5.′ One of the parties wanted to put up a balcony projecting 2′9″ into the wall at a height of 14′10″ from the ground.

43. The learned Judge held that the balcony proposed to be put up overhangs the common lane and that “there is no question of his sole occupation so as to deprive the plaintiff's enjoyment of the existing actual user of that chhindy (lane).” The only use to which that chhindy was being put to was as a passage and a balcony at a height of more than 14′ from the ground was not likely to interfere with the user of the chhindy or lane in any manner. Hence this case is clearly distinguishable. It cannot apply to the facts of the present case.

44. Somewhat similar are the facts in the case reported in Barumal v. Ralaram, AIR 1938 Lah 779. That suit also related to an open site which was used as a lane leading to the property of the plaintiff. The defendants roofed over the part of the lane adjoining their own property by means of a chhatra over which a room was built. Plaintiffs sued for an injunction to compel the removal of the structure. In that case, it was held that it was not practicable for the aggrieved party to sue either for partition or for joint possession. Hence it was held that the only remedies left were by way of injunction or damages.

45. The relief of injunction was, however, declined for the reason that the plaintiff himself had made an exactly similar use of the lane opposite his own property and so it was held that he could not ask the defendants to remove that structure so long as his own structure remained. A small amount was however, awarded as damages. It cannot be seen how this decision can be made applicable to the facts of the case on hand.

46. A lane as a common property was the subject of another case Krishnan Pillai v. Kilasathammal, AIR 1928 Mad 810. An injunction to remove the structure put up across the common lane was refused on the ground that there was laches on the part of the plaintiff and that the balance of convenience was in favour of defendant. The injunction requiring the removal of a small pial put up on the lane was, however, confirmed on the same ground of balance of convenience. Hence this case also will not help the appellant.

47. In order to show that a structure already built cannot be directed to be removed unless substantial injury is proved, the learned Advocate for the appellant relies on the case of Krishna Kumar Singh v. Padumsingh, AIR 1950 Pat 511, where their Lordships observed:

“The plaintiff who complains of a building of a permanent structure on the joint property by his co-owner cannot obtain a decree for its demolition or for joint possession, unless he can establish that he has sustained some substantial injury by reason of the act and that he took reasonable steps in time to prevent the erection.”

48. This again is a case which does not pertain to a party wall. The property in question was an open plot belonging to the plaintiffs and defendants jointly. The plaintiffs alleged that the defendants started construction of a structure of a permanent character on that plot. They pleaded that this would deprive them of the right of getting the plot allotted to their share in the event of the partition of the joint lands. They alleged that their preferential claim to this plot was on account of its nearness to their residence.

49. Their Lordships were of the opinion that pacca buildings on a joint land should not ordinarily be ordered to be demolished unless it is shown that injury would be caused to the other co-sharer. Their Lordships held that a mandatory injunction was not available to the plaintiffs in that case. Obviously, the reasoning underlying this decision is that if one of the co-sharers has put up a structure on a joint open site, it would be open to the other party to have this site allotted at a partition to the party building it. There is no such scope in the case of a party wall. Hence that class of cases stands on an absolutely different footing.

50. The learned Advocate for the appellant relies on the Full Bench decision of the Allahabad High Court in Chhadi Lal v. Chhote Lal, AIR 1951 All 199 where it was held:

“The question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. While a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief of demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify.”

51. Firstly this case also relates to an open site and not to a party wall. Secondly, the ultimate conclusion of their Lordships is that the relief to be granted has to depend upon the facts of each case. This case is clearly distinguishable from the one on hand.

52. The foregoing discussion will show that none of the cases relied on for the appellant relate to party walls. They relate either to open sites or to open lanes used as passages. On the other hand, all the cases that relate to party walls have been decided on the principle enunciated in (1880) 14 Ch. D. 192. It has been uniformly held that the raising of a party wall amounts to an ouster of the other side from its use as it was. On that basis, the conclusion reached is that, in such cases, it is necessary to remove the additional structure put up and to bring the wall to the former position so as to allow it to be used by the other party in the same way as it could have been used before the addition.

53. Under these circumstances, it is not necessary that the plaintiff need prove any particular injury or loss or damage caused to him. Hence the question of compensation does not arise. From this, it follows that the only remedy that is available a to the plaintiff is a mandatory injunction. The possible exception to the grant of this relief would only be in cases where the plaintiff is guilty of laches. It is, therefore, necessary to see whether, in the present case, there are any laches on the part of the plaintiff such that the injunction should be refused.

54. In para 9 of the plaint, there is a specific allegation that the wall was constructed in the month of December 1950 during Christmas holidays. The suit was filed on 11-1-1951. In the whole of the written statement, there is no denial of this averment in the plaint: nor is there a specific plea of laches on the part of the plaintiff as a bar to the suit or to the relief of injunction. There is, however, an allegation in cl. (b) of para 5 of the written statement Ex. 15 that when the house was being built the defendant (plaintiff?) was silent without any objection and that there was full consent of the plaintiff to the building of the wall. Amongst the seven issues raised in the trial Court, there is not one relating either to the laches on the part of the plaintiff or to the consent of the plaintiff. Issue No. 6, however, is as follows:

“Does the defendant prove that the plaintiff acquiesced in opening of the mori?”

55. This relates only to the mori and has nothing to do with the wall in question. Even on this point, the finding of the trial Court is in the negative. The learned Civil Judge has found that the plaintiff is a Government servant residing in a village called ‘Banahatti’ and that the wall was built in his absence. The defendant has admitted that the work of constructing the mori occupied only 10 minutes and that of the wall only 15 or 20 days.

56. It will be seen that none of these questions were raised before the first appellate Court. The only point there urged was that it was not proper to grant a mandatory injunction to remove the wall. Under these circumstances, it is not open for the appellant, at this late stage in second appeal, to urge that there were laches on the part of the plaintiff Looking to the dates above mentioned there does not appear to be any serious laches so as to disentitle the plaintiff to the relief of mandatory injunction.

57. It is further argued by the learned counsel for the respondent that this relief is discretionary and that both the lower courts have used their discretion in favour of the plaintiff. On this ground, he urges that the High Court in second appeal should ordinarily not interfere with the discretion used by the lower courts. In my opinion, there is much force in this contention. I, therefore, hold that the plaintiff is not disentitled to the relief of mandatory injunction granted by both the lower courts.

58. There is one more point urged by the learned Advocate for the appellant. He contends that the present suit is barred by the provisions of Order II, Rule 2 of the Civil Procedure Code. According to him, the plaintiff had filed a suit, O.S No. 237/50 against the defendant in respect of the same cause of action. In that suit, he failed to pray for the present relief to have the wall pulled down although he was entitled to claim in even at that date. It is, therefore, urged that he cannot now be permitted to sue for that relief. The learned Advocate for the respondent contends that the point raised is not a pure question of law but a mixed question of fact and law.

59. Hence the appellant should not be permitted to raise it for the first time, in appeal. It is clear from the written statement that no such objection has been taken therein nor was any issue on the point got raised in either of the Courts below. The only document that gives some indication of the previous suit is Ext. XXXVI. It is a certified copy of the judgment of the District Judge, Bijapur, in appeal No. 357/51 against the said Civil Suit No. 337/50. That document was produced in support of the bar of res judicata which was urged by the defendant.

60. From that document, it appears that the plaintiff then went to the Court on the allegation that the wall then in question was one in his exclusive ownership. On these allegations, he claimed a right of easement for a window of his in that wall. The defendant contended that it was a joint wall. Both the Courts held that it was not in the absolute ownership of the plaintiff and that it was a joint wall owned both by the plaintiff as well as the defendant. In the present suit, the plaintiff bases his claim on accepting the position that the wall is a joint wall. It is on this basis that the relief of mandatory injunction is claimed. It cannot be said that the present suit is in respect of the same cause of action as in the earlier suit. Hence the question of omitting to claim the relief does not arise, and the provisions of Order II, Rule 2 C.P.C do not apply.

61. In the result, the appeal fails. It is dismissed with costs.

V.S.B

Appeal dismissed.