1. This second appeal has been filed against the judgment and order dated 16th December, 1983 passed by the Extra Assistant Judge, Nanded wherein the suit of the respondents (original plaintiffs) was decreed after setting aside the order of dismissal of the suit dated 23rd August, 1982 passed by the C.J.J.D, Kinwat.
2. The respondents-original plaintiffs brought a suit for perpetual injunction and mandatory injunction against the present appellant.
3. The plaintiff no. 1 and father of the defendant constructed a house with a common wall. The said wall had no windows or ventilators, the plaintiffs constructed a new house leaving a space of four and half feet from the said common wall. This four and half feet space was left open by the plaintiffs for using the Bath Room. It was stated that the defendant demolished some portion of the wall and started digging foundation. The plaintiffs protested and obstructed the work of digging of foundation of the defendant. The defendant agreed before the Panchas that he would not keep windows or ventilators in the new wall or make any projections on the common wall of four and half feet if he was allowed to construct the house using the common wall to the extent of one and half feet.
4. The defendant however, in breach of the said agreement, fixed windows in the new wall. The plaintiffs protested. The plaintiffs, therefore, filed the suit for mandatory injunction against the defendant for removal of the said windows or projections.
5. The appellant-original defendant denied that there was a common wall. It was stated that it exclusively belonged to him. The destruction of the alleged common wall and agreement in presence of the panchas or that in the new wall constructed by him, ventilators or windows have been built, are also denied. The defendant stated that he had started the construction after obtaining due permission from the Gram Panchayat of Sirpur. The Sarpanch, after due inspection, granted permission to the defendant to construct a new house. There was no objection by the original plaintiffs. Finally, the defendant stated that he was windows in the new wall but not in breach of the agreement. Hence there was no question of directions or removal of the windows or projections.
6. The learned trial Judge after framing certain issues and recording evidence as was adduced by the parties, dismissed the suit of the plaintiffs observing:—
“The lintels are at the height of more than 8 feet from ground level. In any way the lintels cannot come into contact with any object. Moreover, the proposed windows are not coming over the stair's base and hence the question of touching of lintels to the heads of person going through the stairs does not arise. The plaintiffs' map itself shows that the lintels are not coming on the way of stairs.”
7. Finally, the learned trial Judge observed that the defendant has got every right to open the windows and lintels on it and the plaintiffs have no right to close the windows and prevent the Defendant from lying lintels over windows.
8. The matter was taken up in appeal. The learned Appellate Judge below, after taking into consideration the evidence on record, held that the southern wall was a common wall. He further observed that admittedly, there were no windows or ventilators in the southern wall. Observing further that the windows and lintels, if allowed to remain in the southern wall, would infringe the easmentary rights of the respondents-original plaintiffs, he proceeded to set aside the order of dismissal of the suit and decreed the suit of the respondents. It is against this judgment and decree the present appeal has been filed.
9. I have heard Shri S.G Karlekar, learned Counsel for the appellant and Mrs. Sangeeta Kulkarni, learned counsel for respondents.
10. On perusal of the record, it would be seen that there is clear finding of the Courts that the windows and ventilators which have been fixed, are on the southern wall, which is a common wall. The common wall is known under the Easement Act as “party wall”. The co-owner of a party wall is not entitled to make any additions or alterations to the party wall without consent of the other co-owner. Raising of party wall or unauthorised constructions over wall or otherwise scrapping or damaging party wall by one of the co-owners is not permitted. 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 or if a co-owner scraps or otherwise damages party wall, the other co-owner has right to move the Court under the provisions of section 35 of the Indian Easements Act, 1882. In the present case, the appellants while taking up constructions opened up the windows and ventilators in the common wall. The respondents rightly brought the suit for mandatory injunction. The Appellate Judge has rightly granted mandatory injunction directing the appellant to close the wall and ventilators or lintels and to put the wall in its original condition. No fault can be found with the reasoning or the order of the first Appellate Court. There is no merit in the appeal.
11. In the result, appeal is dismissed with no order as to costs.
Appeal dismissed.
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