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Daudkhan Musekhan Vs. Chandulal Kanhayalal Bhujan - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom370; 76Ind.Cas.521
AppellantDaudkhan Musekhan
RespondentChandulal Kanhayalal Bhujan
Excerpt:
co-sharers - joint wall--rights of co-owners--encroachment--remedy. - - but if tie well is joint, tnen eacn party is entitled to act as owner of his own half and be cannot compel the owner of theother h alf, to bear any greater burden that he chooses to place upon it, so that one joint owner cannot encrcach on the other half of tie wall in defiance of the other owner'srights......beyond tlenhddle 1 ne is ontle plaintiff's side of the pa ty wall. tl e conditions attaching to a party wall are not very easy to define. but if tie well is joint, tnen eacn party is entitled to act as owner of his own half and be cannot compel the owner of theother h alf, to bear any greater burden that he chooses to place upon it, so that one joint owner cannot encrcach on the other half of tie wall in defiance of the other owner'srights. there be s teen no partition of_ this wall by metes and bounds. it still remains a party wall between the two houses, though it is brick on the defendant's side and mud on the plaintiff's side, and that condition cannot be altered until definite steps are taken to divide the wall. we therefore, set aisde the decree of the district judge, and declare.....
Judgment:

1. The defendant admitted the wall was joint, but in re-build:ng his own house iie built beyond the middle line of the wall. The plaintiff wished for a mandatory injunction that defendant should remove the encroachment which after all is not a serious one. As a matter of fact, the part of the wall on the plaintih's side would be imprrved by gettins treater support from the defendants brick-tuld-ing. At the same time, defendant cannot be allowed to consider the encroachment as his own, on payment of compensation which was directed by the District Judge unless tre plaintiff is willing to accept compensation. Considering tiat the defendant was in the wrong we do not think that the plaintiff could be forced in effect t) sellnisland. Wed) not order the defendant to pull down his wall on account of an encroacl ment rf a few incnes. But we declare, tnat that portion of the defendant s br'ck-build'nt wl 'ch goes beyond tlenhddle 1 ne is ontle plaintiff's side of the pa ty wall. Tl e conditions attaching to a party wall are not very easy to define. But if tie well is joint, tnen eacn party is entitled to act as owner of his own half and be cannot compel the owner of theother h alf, to bear any greater burden that he chooses to place upon it, so that one joint owner cannot encrcach on the other half of tie wall in defiance of the other owner'srights. There be s teen no partition of_ this wall by metes and bounds. It still remains a party wall between the two houses, though it is brick on the defendant's side and mud on the plaintiff's side, and that condition cannot be altered until definite steps are taken to divide the wall. We therefore, set aisde the decree of the District judge, and declare that that portion of the wall encroached upon by the defendant belongs to the plaintiff's half of the party wall, and therefore, if, at any time hereafter, the wall should be divided that portion of the wall now encroached upon will belong to the plaintiff. The plaintiff will be entitled to his costs of his appeal.


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