Skip to content


Baij Nath Vs. Janki Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All318
AppellantBaij Nath
RespondentJanki Prasad
Excerpt:
- - 122 clearly lays down a principle that in such a case as this one of the tenants in common is not entitled to interfere with the party wall without the consent of the other tenant-in-common. i am of opinion that in a case like this where there is no alteration of the party wall different considerations apply. co-ownership implies that each co-owner should have a reasonable user of the thing owned in common, and so long as each co-owner uses a wall reasonably without interfering with the enjoyment of that wall by the other party, or without doing anything which would weaken, damage or increase or diminish the wall enjoyed in common, he is entitled to do what he likes. in this case i am satisfied therefore that the plaintiff has not made out a case for the granting of an injunction......a.l.j. 473. 3. this case decided that one of two tenants in common is not entitled to build upon a party wall without the consent of the other tenant in common; and in particular he relied upon a portion of the judgment in the case as follows:the case of watson v. gray [1880] 14 ch. d. 122 clearly lays down a principle that in such a case as this one of the tenants in common is not entitled to interfere with the party wall without the consent of the other tenant-in-common.3. it is clear, in my view, that this decision is distinguishable from the present case. in the above case one of the co-owners proposed to increase the height of the party wall. the defendant in this case does not propose to do anything of the sort. different considerations arise where there is an increase in the.....
Judgment:

Young, J.

1. This is a defendant's appeal. The plaintiff brought an action against the defendant claiming an injunction to restrain the defendant from opening an almirah in the wall between the two houses, and asking that another almirah already made should be closed, and further that certain beams which the defendant was placing or proposed to place on his side of the wall should not be allowed, and an injunction restraining him from so doing be decreed.

2. It appears that the plaintiff has a house three storey high; the defendant has a house one storey high-both parties using the same wall in common. It has been decided by the lower appellate Court as a matter of fact that the wall between the two houses is held in common by both the parties. The defendant wished to add one storey more to his present house. That would make his house two storeys in height, with the plaintiff's house still a storey higher above the defendant's house. The lower appellate Court refused to grant an injunction. The appellant contends that an injunction ought to issue, and quotes as his authority the case of Ekramullah Khan v. Muhammad Yunis Ali Khan [1915] 13 A.L.J. 473. 3. This case decided that one of two tenants in common is not entitled to build upon a party wall without the consent of the other tenant in common; and in particular he relied upon a portion of the judgment in the case as follows:

The case of Watson v. Gray [1880] 14 Ch. D. 122 clearly lays down a principle that in such a case as this one of the tenants in common is not entitled to interfere With the party wall without the consent of the other tenant-in-common.

3. It is clear, in my view, that this decision is distinguishable from the present case. In the above case one of the co-owners proposed to increase the height of the party wall. The defendant in this case does not propose to do anything of the sort. Different considerations arise where there is an increase in the height of the party wall, as Crompton, J., said in Stedman v. Smith [1857] 8 E. & B. 1:

You certainly had no longer the use of the same wall; you could not put flower-pots on it, for instance; or suppose he had covered it with broken glass, so as to prevent your passing along it, as you were entitled to do. The plaintiff is excluded from the top of the wall; he might have wished to train fruit trees there, or to amuse himself by running along the top of the wall.

4. This case of Stedman v. Smith [1857] 8 E. & B. 1 is quoted with approval in the case of Watson v. Gray [1880] 14 Ch. D. 122 which is alluded to in the case I have just qouted in. 13 A L.J. (1). It is quite clear therefore from a perusal of the authorities in this matter that an injunction issues where there is an alteration, such as an increase in height of the party wall. I am of opinion that in a case like this where there is no alteration of the party wall different considerations apply. Co-ownership implies that each co-owner should have a reasonable user of the thing owned in common, and so long as each co-owner uses a wall reasonably without interfering with the enjoyment of that wall by the other party, or without doing anything which would weaken, damage or increase or diminish the wall enjoyed in common, he is entitled to do what he likes. In this case I am satisfied therefore that the plaintiff has not made out a case for the granting of an injunction. There is no evidence on the record of any damage having been done to the wall, or that it has been weakened, or of any interference with the reasonable user of the plaintiff of the wall. All that the defendant has done is to use his rights reasonably as a co-owner.

5. The appeal is, therefore, dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //