Norman Macleod, Kt., C.J.
1. The plaintiff sued for an injunction against the defendants restraining them from raising the plaint wall and placing their roof thereon and from interfering with it in any way. Defendant No. 1 denied the claim, and contended that the plaintiff was not the exclusive owner of the plaint wall; that the plaintiff and defendant No. 1 were the joint owners thereof; that each had a right to make use of the wall; and that the plaintiff was not entitled to the injunction sought.
2. Before the Subordinate Judge the parties put in a Pursis as follows:-
As it is settled that the issue whether the wall in dispute in this case is of the independent ownership of the plaintiff or of the joint ownership of both the plaintiff and defendant No. 1 is not to be decided in this suit, we are not going be examine any witnesses.
3. So that the Judge said :-
On the pleading of defendants themselves I think the plaintiff is entitled to the reliefs claimed by him. If the plaintiff is the exclusive owner of the plaint wall, it goes without saying that defendants cannot raise it. Even if it be assumed that the wall is a joint wall as contended by defendants, I think defendants cannot raise it without the consent and permission of the plaintiff.
4. The Judge, therefore, granted an injunction restraining the defendants from raising the plaint wall, and ordering them to remove at their expanse the portion of the wall recently built by them on the old wall, as also the roof thereon.
5. On appeal, the District Judge considered the case from the point of view whether the plaintiff had in fact suffered any injury, and, if so, whether pecuniary compensation would not have afforded him adequate relief. As he considered that the plaintiff did not suffer any damage, ha held that he was not entitled to any injunction.
6. One of the points in appeal by the present respondent was that the trial Court erred in relying on the decision in Kanakayya v. Narasimhulu I.L.R. (1895) Mad. 38 which was decided under English law. It has now been argued by the respondent's pleader, inconsistently with that ground of appeal, that the English law as regards party walls is directly opposad to the law laid down in Kanakayya v. Narasimhulu. But, as a matter of fact, that case was decided on the authority of Watson v. Gray (1880) 14 Ch.D. 192.
7. We have to consider what is the right of one co-owner of a party wall against the other co-owner who has raised the party wall. That question was answered inCubitt v. Porter (1828) 8 B. & C. 257 by Mr. Justice Bayley, who said at p. 265 :-
There is no authority to shew that one tenant in common can maintain an action against the other foe 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 promptrestitution. In was not a destruction : the object of the party was not that there should be no wall there, but that there should be a wall there again as expeditiously as a wall could be made. But then it is said the wall here is much higher than the wall was before. What is the consequence of that? One tenant in common has, upon that which is the subject-matter of the tenancy in common, laid bricks and heightened the wall. If that be done further than it ought to have been done, what is the remedy of the other party I He may remove it. That is the only remedy he can have.
8. Consequently in Watson v. Gray, where the plaintiff complained that the defendant had committed certain acts oftrespass 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 the plaintiff was not entitled to any damages in respect of the throwing down of the new piece of wall.
9. In Imanbhai v. Rahimbhai : (1925)27BOMLR503 the question arose what was 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 decided that in those circumstances the raised portion of the wall assumed the same character as the original party wall.
10. Now we have to deal with the question whether, if one co-owner raises the wall without the consent or acquiescence of the other co-owner, he makes himself liable to an action for an injunction, It seems to us that if it is the law that the plaintiff can himself remove the raised portion of the wall without rendering himself liable to a claim for damages, he is a fortiori entitled to come to the Court and ask for an injunction in order to get the raised portion removed.
11. We think that the District Judge has looked at the case from the wrong point of view, and that the appeal must be allowed and the order of the trial Court restored with costs throughout.