1. Plaintiffs in O.S 160 of 1974 of the Principal Munsiff's Court, Parur are the appellants. The suit filed by them for mandatory injunction, recovery of possession and prohibitory injunction was dismissed by the trial Court. In A.S 8 of 1982 the Principal Sub Judge, Parur modified the judgment and decree of the trial Court holding that the plaintiffs are entitled to get a declaration that the disputed wall is a common wall. The plaintiffs sought declaration that the wall separating their property and that of the defendants lie within their property and that the defendants have no right to meddle with it. Plaintiffs also wanted to restrain the defendants from interfering with their enjoyment of the wall. Injunction is also sought against trespass and commission of any act detrimental to the wall. Further there is prayer for the removal of encroachment made by the defendants and recovery of that portion of the property trespassed upon by them with damages.
2. Defendants contended that the plaintiffs have no right over the wall and that it lies in the property belonging to the first defendant. Allegations of encroachment are denied.
3. As the suit is based on title the burden is squarely on the plaintiffs to prove their title to the property in dispute. Failure on the part of the plaintiffs to measure the property with reference to their title deed is fatal to their case. Title to the property cannot be determined by conjectures and probabilities. As the plaintiffs failed to prove that the wall in question is within their property the finding of the Sub Judge that they have failed to establish their exclusive title to the wall cannot be assailed.
4. The averments in the plaint itself would indicate that the wall is the common wall between the properties of the plaintiffs and the defendants. In the plaint itself it is stated that the disputed wall forms part of the building belonging to the defendants which is on the southern sides of plaintiffs' property. The commissioner's report and the oral evidence unmistakably show that both the parties are using the wallas the common wall and that they have the right to do so
5. The evidence in the case would show that the wall separating the properties of the plaintiffs and the defendants is common. In the case of a common wall each party is entitled to act as the owner and one of them cannot compel the other to relinquish his right. A co-owner cannot legally assert exclusive right over the common wall to the detriment of the other. He cannot place any greater burden unilaterally or encroach or infringe upon the other owner's right in the wall. Without the consent of the joint owner one of the owners cannot meddle with the wall by raising its height or reducing it or in any was tampering with it to the detriment of the other. If one of the owners meddle with the wall the aggrieved party can sue for damages or seek restitution of the wall in its original condition by mandatory injunction. It the height of the party wall is raised by one of the parties Without the consent of the other the latter can remove the raised portion of the wall and in that case he will not be rendered liable for damages. It is always open to him to seek for mandatory injunction for the restoration of the wall in its original condition in case of demolition of the wall, whether partial or full. In this context it is useful to refer to Sivaputrappa v. Shivraudrappa (AIR 1926 Bombay 387) where the Court held thus:
“If one co-owner raised the party-wall without 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 the Court and ask for an injunction in order to get the raised portion removed.”
6. In Natson v. Gray (1830-14-Ch D 192) the plaintiff complained that the defendant had committed certain acts of trespass in that he had knocked down the new piece of wall which the plaintiff had built on the top of the party wall and claimed damages. It was held that plaintiff was not entitled to any damages in respect of the demolition of the new piece of wall as the defendant was well within his right to knock down the new unauthorised construction on the party wall. In Imambhai v. Rahimbhai (AIR 1925 Bombay 373) the question that arose for consideration was regarding the character of the raised portion of the party wall which had been built by one co-owner, either with the consent or with the acquiescence of the other co-owner and it was held that in those circumstances the raised portion of the wall assumed the same character as the original party wall. Thus, if the height of a party wall is raised or lowered with the consent of the joint-owner the resultant wall assumes the same character as the original party wall. Position will be different when it is done without consent or acquiescence of the joint owner. The aggrieved co-owner can certainly approach the, Court for mandatory injunction to restore the wall to its original condition.
7. Where the wall is a common-party wall the owners on both sides of it are entitled to the ownership over it. One of them cannot compel the other to forsake his right over the wall or do anything to infringe his right. In Dudkhan Musekhan v. Chandulal Kanhayalal (AIR 1923 Bombay 370) it is held as follows:
“The conditions attaching to a party wall are not very easy to define. But if the waif is joint, then each party is entitled to act as owner of his own half, and he cannot compel the owner of the other half, to bear any greater burden that he chooses to place upon it, so that one joint owner cannot encroach on the other half of the wall in defiance of the other owner's rights.”
8. Following the above ruling High Court of Punjab in Durga Parshad v. Jheetar Mal (AIR 1954 Punjab 125) observed thus:
“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.”
9. The settled legal position is that in the case of a common party wall each co-owner is entitled to a reasonable use of the wall owned in common and so one of them cannot unilaterally interfere with the enjoyment of the other. In the case of high handed action by a co-owner torpedoing the rights of the other Court will not remain a silent spectator and it will not hesitate to grant mandatory injunction to restore the wall in its original condition. As neither the plaintiffs nor the defendants have any right to use the common party wall in such a way to cause inconvenience to the other and as there is evidence that the plaintiffs have raised the disputed wall unilaterally the defendants were within their rights when they demolished the same. The learned Sub Judge was justified in holding that the action of the plaintiffs being illegal, they are not entitled to get an injunction against the defendants. The judgment and decree of the lower appellate Court do not warrant interference.
10. The Second Appeal is dismissed and the judgment and decree of the lower appellate Court are confirmed. The parties are directed to bear their respective costs.
Comments