N.G.Shelat:-

(1) This second appeal arises out of a suit instituted by the plaintiff - appellant in the court of the civil judge (junior division) rajpipla for a permanent injunction restraining the defendant - respondent from putting up any construction in the southern wall of his house inter alia alleging that the said wall is of his exclusive ownership and that the defendant has no right to make use thereof in any manner.

(2) The defendant - respondent resisted the suit inter alia contending that the suit wall is not of the exclusive ownership of the plaintiff but that it was their joint wall and was to be treated as such. He has therefore every right to make reasonable use thereof and that it would not cause any damage to that wall if the cement concrete boxing up to a small depth were constructed in this wall.

(3) On the pleadings of the parties the issues were raised by the trial court and in its view the plaintiff failed to prove that the southern wall of his house was of his exclusive ownership and that it is of the joint ownership of the parties. It also held that the defendant is entitled to make reasonable use thereof for the purpose of inserting a bar of 4 inches within a length of 15 - 16 feet for putting up a slab and thus the plaintiff is not entitled to any injunction sought for in the suit and in the result it dismissed the plaintiffs suit with costs. Against that decision passed on 30th september 1958 by mr. M. B. Pancholy civil judge (junior division) rajpipla the plaintiff preferred regular civil appeal no. 81 of 1958 in the court of the district judge at broach. The same issues were raised before him and on a consideration of the evidence on record he agreed with the finding of the trial court that the suit wall was of joint ownership of the parties and it was to be treated as such and in the result he dismissed the appeal with costs. Feeling dissatisfied with that decision passed on 18th april 1959 by mr. Y. D. Desai district judge broach the plaintiff has come in appeal.

(4) At the outset mr. Joshi the learned advocate for the appellant referred to his civil application no. 390 of 1961 and urged that the documents annexed therewith should be allowed to be admitted in evidence. According to him three of those documents are certified copies the originals whereof are said to be with the respondent and that since they are of vital importance for showing the ownership of the wall in question they should be admitted in evidence. It was besides said that when the other side has not filed any affidavit in rejoinder to his application and as the defendants cannot be unaware of those documents they should be permitted to be taken on record. This request was resisted by mr. Parikh the learned advocate for the respondent as according to him such documents cannot be allowed to be admitted in evidence in second appeal where no questions of fact have to be gone into and more particularly at such a late stage when no additional evidence can be admitted to improve upon the weakness of the case. Now while it is true that this court is not expected to go into pure questions of fact unless they fall under sec. 100 of the code of civil procedure additional evidence can be admitted either for enabling the court to pronounce judgment or for any other substantial cause under order xli rule 27 of the civil procedure code. By reason of order xlii of the civil procedure code the provisions contained in order xli are made applicable so far as may be to appeals from appellate decrees. Now order xli rule 27 provides as under: -

27 (1) the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary; in the appellate court. But if - (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or (b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause the appellate court may allow such evidence or document to be produced or witness to be examined. (2). .

It is thus obvious that the prayer made by mr. Joshi in his application does not fall under clause (a) of rule 27 and since the court does not require it so as to enable it to pronounce judgment and that way falling under the first part of clause (b) it can only be covered by second part of clause (b) i. E. Or for any other substantial cause in rule 27 of order xli of civil procedure code. The supreme court has in a case of k. Venkataramiah v. A. Seetharama reddy and others a. I. R. 1963 supreme court 1526 considered the ambit of rule 27 of order xli of the civil procedure code and held that under rule 27 (1) the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. Then it has been observed that there may well be cases where even though the court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under rule 27 (1) (b) of the code. Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party or that a party may move the court to supply the defect but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands. It follows there from that while it is open to the court to allow additional evidence under order xli rule 27 (1) (b) in the circumstances set out in that case there hardly appears any justification for this court to allow any such additional evidence at such a late stage and that too for the purpose of filling in as it were the lacuna by the production of such evidence in support of the plaintiffs claim about his ownership of the wall in question. In fact the documents referred to in the application could have been called for by the plaintiff from the defendant during the course of the trial in the first court and if the defendant failed to produce the same the certified copies thereof were available. No attempt was however made in either direction during the period that the trial went on in the court of the civil judge (junior division) at rajpipla and even later on while the appeal against the decision in that suit was pending in the court of the district judge at broach. The appeal was decided on 18th april 1959 and it was thereafter that in september 1959 the plaintiff applied for obtaining the certified copies of the sanads of those properties and they are sought to be produced in march 1961 before this court. On no ground whatever the court can allow any such additional evidence to be taken on record and more so when it would involve the retrial and the re - appreciation of evidence in the case. That application is therefore rejected.

(5) In order to appreciate the contention made out by mr. Joshi it is essential to appreciate the situation of the houses of the parties and as to what the defendant intends to put up in the southern wall said to be of the plaintiffs house exhibit 34 is the sketch prepared by the learned civil judge while he inspected the property in question. He has shown the portion in broken lines where the defendant intends to construct a small building in the open space which he got under the partition effected between his brothers during the life - time of their father. There was originally a kitchen on that open space for the use of the entire family. There exists a connecting door for going in that kitchen side. Besides there exist rafters inserted as also the marks of an old waterstand (paniara) in that southern wall. The southern wall in dispute is marked as abcd in the sketch. Now it is common ground that there were 3 galas of the original house belonging to their father bhagwanji ramdas. He had seven sons. During his life - time he had made an arrangement whereby the partition was to be effected in respect of the various properties with which we are not concerned. I will refer to the house no. 1 mentioned in exhibit 21/1 dated 10th june 1946 as a house having 3 galas. All of them were living in that house. The southern gala came to be given to the youngest son sumanlal - the plaintiff. The gala to its north was given to another son nathubhai and further on to its north the third gala was given to his other son balubhai. To the south of the gala given to the plaintiff there was an open space which was purchased by bhagwanji ramdas and the sale - deed of that open space has not been on record. That open space came to be given to the defendant who happened to be the eldest son of bhagwanji under that partition and as provided therein he was given rs. 1 0 for putting up a new construction on that open space. Now in that open space there was a kitchen with a roof thereon. It was constructed by bhagwanji ramdas and was made use of by all of them. For going to the kitchen there exists a door in that southern wall and one jali is also there. As found by both the courts here below after this partition - arrangement had taken place in 1946 the parents of the parties used to cook and dine in that kitchen and the same was continued to be used till the life - time of their mother. Their mother died in 1954. Their father died in the year 1952. Thus it is abundantly clear that till 1954 the kitchen in the open space was being used for all the members of the family and it was thereafter that in pursuance of the partition - arrangement of 1946 that the open house - site carne to the defendant and his other brothers took their respective galas in this house. The contention made out by mr. Joshi is that it would be for the defendant to establish that the southern wall was of the joint ownership or that it was intended to be kept as joint and in absence of any recital in the partition - arrangement exhibit 21/1 since it was a wall of the original house it went along with the southern gala of the house to the plaintiff. The defendant can claim joint ownership in respect of that wall provided according to him the original owner of that open space was a co - owner or a joint owner in respect of that wall with the owner of this house their father bhagwanji ramdas. I do not think any such contention can at all prevail for the simple reason that the entire house along with that open space had become of the exclusive ownership of bhagwanji ramdas and that it had come to be amalgamated with the main house. That entire property was being used by all the members in the family and consequently anything that existed in or over that property would be of the members of the family and that way of joint or common ownership amongst them. The learned appellate judge has considered the effect of this partition arrangement exhibit 21/1 and observed that it makes no reference whatever about the exclusive ownership or otherwise in respect of the wall in question. In absence of any such recital it has to be taken that the character of the wall was allowed to remain as common amongst them for the proper and beneficial enjoyment of the plaintiff living in the last southern gala and the defendant who has been given the open space to its south for the purpose of constructing a house and for which he was given rs. 1 0 as the other brothers were given separate portions out of the main house. Just as the wall between the other galas would remain joint between the other brothers to whom they have gone in partition arrangement this wall would similarly remain for the common enjoyment of both the plaintiff and the defendant it being between the two properties given to them. Both the courts herebelow have found on the evidence led by the parties that the southern wall was a joint wall and that it was intended to be treated as such. That is a concurrent finding of both the courts on an issue as to the ownership of the suit wall and there is hardly anything which justifies this court to go into that appreciation of evidence in the second appeal. In fact even if the finding was grossly erroneous as laid down in sri sinha ramanuja jeer v. Sri ranga ramanuja jeer and others a. I. R. 1961 supreme court 1720 this court in second appeal cannot interfere having regard to the provisions contained in sec. 100 of the civil procedure code. Thus that finding about the southern wall being a joint wall stands and there is nothing wrong about the same as well.

(6) That raises the material question as to what are the rights of the parties in respect of such a wall. It was urged by mr. Joshi for the appellant that the defendant - respondent cannot put up any construction in such a joint or common wall without his express consent and since no consent is obtained by him he is entitled to have an injunction issued against the defendant as asked for in the suit. Now it is clear as found by both the courts here below that the southern wall in question is about 1 feet broad and what the defendant intendes to do is to put a cement concrete slab within a depth of 4 inches in the said wall and then plastering the same. That has to be done lengthwise of the wall which is about 15 or 16 feet it is further found by both the courts here below that such work which the defendant intends to do would not have the effect of either weakening or damaging the wall or increasing for the defendant and diminishing for the plaintiff the user of the common wall enjoyed and therefore the principle of law laid down in a case of kalishanker pitamber v. Bai kashi reported in 6 b. L. R. 682 can properly be applied to such a case.

(7) Mr. Joshi the learned advocate for the appellant relied upon two cases in support of his contention. The first is a decision in the case of imambhai kamruddin v. Rahimbhai usmanbhai 27 b. L. R. 503. In that case the wall between the two houses belonging to the plaintiffs on one side and the defendants on the other was a party wall. The defendant raised the height of the wall at his own expense and opened new windows in the portion of the wall newly raised. There was neither any arrangement between the parties when the wall was raised nor had the plaintiff imambhai given his consent to the raising of the wall. Imambhai the plaintiff filed a suit for obtaining an injunction calling upon rahimbhai to close up the windows newly opened by him or to allow imambhai to do at rahimbhais expense and also restrain rahimbhai from making any new openings in the wall. The trial court as also the first appellate court dismissed the suit. The plaintiff imambhai preferred an appeal against that decision and it was held by the division bench of the high court of bombay thatwhere one of the two neighbouring owners raises a party wall the other owner either giving his consent or acquiescing the raised portion of the wall assumes the same character as the old party wall on which it stands. Neither party has the rights to commit a trespass on the party wall so raised in height by opening windows etc. In it. In the other case of shivputrappa parappa kamshetti v. Shivrudrappa kalappa huli 28 b. L. R. 708 a similar question had arisen and there again the defendant in that suit had raised the height of the party wall between the two houses of the parties without the consent of the plaintiff in order to rest on it. While the trial court held that the defendant was not entitled to raise the height of the wall inspite of the question whether it was a party wall or not the district judge found that the plaintiff had suffered no damage and was not entitled to injunction. Against that decision the plaintiff had gone to the high court and it was held that where one co - owner of a party wall raises the height of the wall without the consent or ascquiescence of the other co - owner the latter can either himself remove the raised portion of the wall without rendering himself liable to a claim for damages or can obtain an injunction from the court in order to get the raised portion removed. In both the cases therefore the question was with regard to the raising of a party wall between the two houses and they would have no application for the reason that no question of raising of the party wall or as to the rights and consequences that might arise on account of putting up any window or so in such a party wall between the two houses of the parties arises in this case.

(8) On the other hand we have two decisions of the same high court which may help in determining the point raised in the present case. The first is the decision in a case of mohanchand nemchand v. Isakbhai 2 b. L. R. 898. In that case the plaintiff and the defendants were neighbouring owners and the defendant intended to lay a drain pipe under the surface of the piece of land and along its north side for the purpose of carrying off the drainage from its premises. The parties were found to be tenants - in - common in respect of that surface of land through which the pipe was intended to be taken and the question arose as to whether one of two tenants - in - common has any right to take such a drain pipe and if so under what circumstances. It was held that the act of the defendant was not in infringement of the rights of the co - tenant giving rise to a cause of action because laying the drain and the incidential temporary interference with the soil could not be regarded either as an ouster or destruction or even act of waste. It was further observed in that case that one tenant - in - common cannot maintain an action against the order for a temporary removal of the subject - matter of the tenancy - in - common the party removing it having at the same time an intention of making a prompt restitution. The principle laid down in this decision was subsequently followed in the case of kalishanker pitamber v. Bai kashi 6 b. L. R. 682. The plaintiff in this case had filed the suit to obtain a mandatory injunction directing the defendants to remove a beam and wooden supports that were alleged to have been inserted in the back wall of the plaintiffs house. The defendant contended that the wall in question belonged to him and the plaintiff jointly. The wall in dispute was found by the subordinate judge as belonging exclusively to the plaintiff and the mandatory injunction was granted by the trial court. On appeal the first appellate court held that the wall in question was a party - wall and even then upheld the order passed by the court of first instance and that way the matter went up before the high court in second appeal. There the question that came to be considered was whether that the defendants were alleged to have done with regard to the party - wall amounted to an ouster of the plaintiff or to the destruction of the party - wall for in their opinion only then an action could lie against the neighbouring owner. The matter was sent back for the determination of the issues in that respect. The findings of the court then were that the defendant had inserted the beam (which was supported by a pillar standing outside the party wall) to the extent of four inches of the cornices of two pillars to the extent of two and a half inches the possible insertion of mobhs (beams) to the extent of six inches in the party - wall and such an act did not amount to any ouster and consequently no injunction was granted. In other words it is clear that where one of the owners of a party - wall in constructing his house inserts beams and pillars into his side of the wall the other owner has a right to complain only if the alleged acts amount to his ouster or to a destruction of the party - wall. This would govern the present case. It was however urged by mr. Joshi that for having a definite finding as to whether the acts intended to be done by the defendant in the wall in question amounted to ouster or destruction of a party - wall the case should be remanded to the trial court for having necessary findings in that respect as done in that case. I do not think that it is at all necessary as we have clear findings recorded by both the courts herebelow that what the defendant intended to do is to put a cement concrete slab from his side of the wall and for that purpose he wants to insert a bar of 4 inches within a length of 15 to 16 feet of the said wall and that the wall is to be plastered thereafter. The wall is about 1 1/2 feet broad. Both the courts have also found that it would not cause any damage to the wall. Nor would it amount to waste of the joint wall and at any rate there will be no ouster of the plaintiff from the possession and enjoyment of that wall. In that case no such findings were there and therefore the case had to be sent back.

(9) Mr. Parikh the learned advocate for the respondent has referred to some other cases which in substance lay down the same principles as already referred to hereabove. In a case of baij nath v. Janki prasad a. I. R. 1930 allahabad 318 where such a question had come to be considered it was held that in the case of a party - wall each co - owner has a right to make reasonable use 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 there can be no complaint. That principle was affirmed in a subsequent decision of the same high court in paduman das v. Shrimati parbati a. I. R. 1935 allahabad 649. The other case referred to was one of gulabchand gappalal v. Manikchand gulabchand a. I. R. 1960 madhya pradesh 263. In that case the decisions in relation to the rights of the parties with regard to a party - wall or joint - wall have been considered and the same principles as referred to above have been upheld. The deductions from such decisions in relation to rights in a party of a joint - wall can well be summed up as under: - (1) each co - owner can reasonably use it so as not to interfere with the enjoyment of the wall by the other (2) that he must not do anything which will damage or weaken that wall (3) that its user should not amount to an ouster or destruction of the wall. Within these limits reasonable user of such a wall is permissible as otherwise a co - owner may never consent to reasonable use being allowed by the other co - owner and that way deny him even reasonable use thereof though he is equally an owner thereof with the co - owner. However if one co - owner builds a new piece of wall on the top of the party - wall either with the consent or with the acquiescence of the other co - owner the raised portion of the wall assumes the same character as the original party wall and if one co - owner raised the wall without the consent or acquiescence of the other co - owner he makes himself liable to an action for an injunction. Thus the rights of the parties in respect of the party - wall or a joint - wall between the two neighbouring houses would stand covered under the abovesaid principles deduced from various decisions referred to hereabove. Since there is no question of raising any party wall and as all that the defendant intended to do is to put up a slab in the wall by inserting the same by 4 inches on one side of the wall and then plastering the same so as to be placed in its proper condition there is neither any question of ouster or the interference with the enjoyment of the said wall by the other side nor would it amount to waste or weakening of the wall so as to forbid the defendant from making reasonable use of such a joint or common wall of the parties. No consent is therefore essential to be taken by one from the other co - owner in making such reasonable use of a joint or party - wall. Both the courts herebelow were therefore perfectly right in refusing to grant an injunction as sought for against the defendants in the case.

(10) An attempt was further made by mr. Joshi to say that in the suit - wall there is a door and one jali falling on to the open space now belonging to the defendant on which he intends to put up a construction and according to him since they have been there since long in that wall they are in the nature of easement rights in respect of his property and the defendant cannot therefore be allowed to close the same by putting up any such construction on his side. Apart from the fact that there is no such claim made in the suit as pointed out by the learned district judge in para 14 of his judgment it is clear that there cannot arise any question of any right of easement in respect of that door or a jali in that particular wall having been acquired for after all both the properties belonged to one person though no doubt the open space originally may have been belonging to some other person. In order to claim any such right it must be a right claimed and acquired against some other owner of a property and there was none in the case as both the properties belonged to the same person viz. The father of the parties. We do not know as to how many years before the date of the suit the open space had come to be purchased by the father of the parties and at any rate all that the evidence shows is that both the properties were with the family of the parties since before 1946 and had remained to be the joint property belonging to the family of the parties. The user thereof was also joint and in fact as already said hereabove there was a kitchen on the open space which was being used by all the persons living in the house. In a case of marghabhai v. Motibhai a. I. R. 1932 bombay 513 it was held that a person cannot acquire an easement unless he acts with the knowledge that it is a case of dominant and servient tenement and he is exercising a right over property which does not belong to him. If he enjoys a right under the supposition that he is an owner of property he does not acquire an easement. Not only that but as observed in that case there can be no question of acquiring an easement of light and air over property jointly owned by him with others. This position of law is well settled and is based on various decisions of different high courts. It is therefore clear that when the property belonged to the same person there was no question of acquiring or claiming any right by way of easement in respect of the jali and the door existing in the wall in question. There is thus no substance in that contention. The decision arrived at by both the court herebelow therefore appears to be perfectly proper and there is no justification for interfering therewith on any ground whatever.

(11) In the result the appeal fails and is dismissed with costs. Civil application no. 390 of 1961 is also dismissed with costs. Appeal dismissed.