Pritam Singh v. Mohan Lal And Another

Bal Raj Tuli, J. - The plaintiff, Mohan Lal, filed a suit for permanent injunction restraining the defendants, Pritam Singh and his wife Mohinder Kaur, from interfering in the construction of the wall shown red in the plan attached to the plaint on the allegation that the wall was a joint wall of the parties and the plaintiff had the right to build thereon. The defendants resisted the suit and pleaded that the wall was not a joint wall of the parties but was exclusively owned by the defendants. 2. On the pleadings of the parties, the following issues were framed by the learned trial Court :- 1. Whether the wall in dispute is the joint wall of the parties ? If so, what is its effect ? 2. Whether the plaintiff is in possession of the wall in dispute ? 3. If issue No. 2 is not proved, whether the suit is maintainable in the present form ? 4. Whether the suit is not within limitation ? 5. Relief. The learned trial Court held the wall in dispute to be joint of both the parties who have the right to use the same. On that basis, he held the plaintiff entitled to construct rooms by using the wall in dispute on the upper storey of his house. On issue No. 2, the decision was that the plaintiff is in joint possession of the wall in dispute and there is no question of his being in exclusive possession thereof. On issue No. 3 the suit was held to be maintainable in the present form. Issue No. 4 was decided against the defendants. As a result of his findings, the learned trial Court decreed the suit on January 30, 1969, leaving the parties to bear their own costs. Against that decree the defendants filed an appeal which was dismissed by the Additional District Judge, Gurgaon, on March 15, 1969. Pritam Singh defendant has filed the present appeal in this Court against the decree passed by the learned Additional District Judge, Gurgaon. 3. The finding of fact arrived at by both the learned lower Court that the wall in dispute is a joint wall of the parties is not being disputed by the learned counsel for the appellant. His submission is that in the case of a party wall the owners are tenants-in-common and none of them has the right to build upon that wall or raise its height without the consent of the other tenant-in-common or tenant-in-common. He has relied upon the decision of the Division Bench of the Lahore High Court (Shadi Lal, C.J., and Walker, J.) in Ganpat Rai and others v. Sain Dass and others, AIR 1931 Lahore 373. The learned Chief Justice wrote the judgment with which Walker, J. concurred. The facts were that the plaintiffs and the defendants were owners of two adjoining houses separate by a wall which belonged to both the parties as tenants-in-common. The defendants raised the height of the wall, with a view to build a super-structure on their tenement without the permission of the plaintiff. The question for decision before the Division Bench was whether the action of the defendants constituted a violation of the plaintiffs' right and whether the plaintiffs could ask for a mandatory injunction. The learned Chief Justice, dealing with this question, observed as under :- "The facts warrant the finding that the plaintiffs have been ousted by the defendants from the possession of the common wall and are entitled to remove the obstruction. The leading authority on the subject is the judgment in Watson v. Gray, (1880) 14 Ch.D. 192, in which Fry, J., laid down the rule that, if 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. This rule has been followed by the High Court in India : vide inter alia. Kanakayya v. Narasimhulu, (1896) 19 Mad. 38, Ikram Ullah Khan v. Muhammad Unis Ali Khan, (1915) 30 I.C. 33 and Basant Singh v. Shibba Mal, (1928) 107 I.C. 481. We are not concerned in the present case with the question whether a wall built on the top of a common wall by one co-owner with the consent or acquiescence of the other co-owner should be treated as the joint property of both the parties or the sole property of the person who built it; and it is unnecessary to refer to the decisions dealing with that question. The learned counsel for the appellants, however, contends that, as the defendants have not occupied the whole of the width of the top of the common wall, but have confined themselves to that moiety of the wall which is on the side of their own house and left the other moiety to the plaintiffs, the latter have no cause for complaint. To this contention I am unable to accede. As pointed out above this is a case of party wall of which the two adjoining owners are, to use the phraseology of the English law, tenants-in-common; and the wall cannot be treated as a wall divided longitudinally into the strips, one belonging to each of the neighbouring owners. The plaintiffs are, therefore, entitled to the use of the whole width of the top of the wall subject to a similar right of the defendants, and the construction of the new wall on half the width amounts to an ouster in so far as the width occupied by the defendants is concerned. As observed by Crompton, J., in Streadman v. Smith, (1957) 8 E.L. & B 11 : `You certainly had no longer the use of the same wall; you could not put flower-pots on its, for instance. Suppose he had covered it with broken glass, so as to prevent your passing along it, as you were entitled to do.' The learned Judge further says : `The plaintiff is excluded from the top of the wall; he might have wished to train fruit trees there or to amuse himself by running along the top of the wall'. These observations apply to the present case, and there can be no doubt that the defendants have secluded the plaintiffs from the use of one half of the top of the wall, to which they were entitled." This judgment completely covers the present case and also followed by Kapur, J., in Durga Parshad v. Jheetar Mal, AIR 1954 Punjab 125. It is thus clear that the view of the Lahore Court and this is that the owners of a joint wall are tenants-in-common and none of them can build upon it or increase its height without the consent of the other tenant or tenants-in-common. I need not refer to the judgments of other High Courts which have been referred to in these two decisions but the learned counsel for the plaintiff-respondent has brought to my notice a judgment of Nateson, J., of the Madras High Court, in C.S. Ramchandra Rao v. P. Chinnaswamy Kandar and another, AIR 1967(1) Madras Law Journal 316, in which it was held (as per the head-note) :- "In the case of a common party wall each co-owner is entitled to a reasonable user of the wall owned in common and so long as each co-owner uses it reasonably without interfering with the enjoyment of that wall by the other co-owner or without doing anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes. The other co-owner will have no cause for complaint unless the acts alleged amount to his ouster or to destruction of the party wall. It is a salutary rule to follow that owners of party wall, who are desirous of adding to or otherwise materially interfere with the common property, should obtain the consent of the others interested in it, to the change being effected. If the consent is unreasonably withheld it will be open to the party proposing to put up the construction to seek relief by way of injunction from the Court as withholding consent to any reasonable use will itself amount to ouster." On the basis of this judgment, the learned counsel for the respondent submits that the appellant is withholding his consent to a reasonable user of the wall which is already 8 feet high and is serving as a parda wall between the houses of the plaintiff and the defendants from raising its height by another 3 feet in order to enable him to build a room on his tenement which will in no way interfere with the user of the wall by the defendants. The plaintiff is willing to treat the entire wall as a joint wall of the parties even when he raises its height only at his own expense and states that he will not claim separate ownership of it or any cost of building it. The wall is 4-1/2 inches in width and he wants to have its support for the roof of the room that he wishes to build on his own side of the wall. This reasoning is contrary to the decisions of the Lahore High Court and this Court, referred to above, and it is not possible for me to accept the same. 4. For the reasons given above, this appeal is accepted and the decrees passed by the learned lower Courts are set aside and the suit of the plaintiff is dismissed. In the circumstances I leave the parties to bear their own costs of this appeal. Appeal accepted.