John Edge, Kt., C.J. and Blair, J.
1. Hardeo Sahai brought a suit for partition of houses and shops against Sohan Lal. A decree for partition was made. By direction of the Court the plaintiff prepared two lots. The defendant was allowed be select which of these two lots he would take. The defendant selected one lot: the plaintiff took the other. The amin put the parties in possession of their lots. Thereupon, it appears to us, the suit terminated. There was the decree, and there was execution complete. Afterwards the plaintiff came into Court and asked the Court to direct the amin to build a wall between his lot and the defendant's lot. The Court directed the amin to build a wall. The wall was built. The defendant objected to the jurisdiction of the Court to make any such order, and to the wall as having encroached on his land and as having excluded him from a portion of the land allotted to him. The Court dismissed the objection, and from that order of dismissal this appeal has been brought.
2. For the defendant appellant it has been contended that the Court had no longer jurisdiction after making its decree and order allotting the portion selected by the defendant to him and the portion left to the plaintiff. He also contended that, even if the jurisdiction of the Court was not then determined, the Court has no jurisdiction to direct a wall to be built, and that its order in that respect was in any event ultra vires.
3. On behalf of the plaintiff respondent it has been contended that the Court has power under Section 396 of the Code of Civil Procedure to order a wall to be built, and reliance is placed upon the third paragraph of Section 396. It is contended that the 'bounds' therein mentioned would include the building of a wall.
4. We are not aware that the Court has any power in a partition suit to direct an officer of the Court to have a wall built in carrying out the partition. There is nothing in Section 396 to suggest that a Court has any such authority. The 'metes and bounds' mentioned in the third paragraph of Section 396 are merely the measurements and the limits of the shares which maybe mentioned In the commissioners report. 'Bounds' there do not mean a wall to be built. If that was the meaning of the words of that section, the wall would have to be built in the report, and when the commissioners differed two walls would have to be built, each in a separate report. It would be inconvenient, if not dangerous to the rights of the parties, that a Court should have power to order its officer to have a wall built in a partition suit. Suppose the officer made a mistake and built a wall on the defendant's land instead of on the plaintiff's, what remedy would there be? What could the defendant do with the wall? He could not cart it away and put it upon anyone else's land, and the materials would be an obstruction on his own land. He would have no action against the plaintiff, as the wall was not built by the plaintiff, but by the Court amin under the orders of the Court. The defendant might complain that he did not want the wall and did not see why a wall should be built on his land for the amusement of the plaintiff. He might very reasonably say that, if the plaintiff wanted a wall built between them, the plaintiff was at liberty to build a wall on his own land, so long as he did not interfere with any rights or other easement which the defendant had obtained on partition. It is much safer to leave the person who can be answerable in a suit for trespass, or interference with an easement, to build a wall at his own risk than for the Court to instruct its amin to commit what may be an act of trespass.
5. We allow the objection to this extent that we hold that the Court had no authority to order the amin to build the wall and that its order in that respect was ultra vires: to this extent we allow this appeal with costs.