1. This is a defendant's appeal against an appellate decree of Additional District Judge N. L. Vijh, dated 16-8-1951 modifying the decree of the trial Court and giving a mandatory injunction against the defendant.
2. The plaintiff owns the house No. 3210 in Kucha Baga-ullan Khan and the defendant purchased the adjoining house which is on the north of the plaintiff's house. The defendant started raising the northern wall of the porch of this house to which objection was taxen by the plaintiff on the ground that the well was his. He, on 22-6-1946, made a report to the Police complaining about this alleged unauthorised construction. He also sent a telegrapnic notice to the defendant warning him not to build and to remove the structures that he had already built. The defendant has also stated as D. W. 9 that after the wall had been built some persons on behalf of the plaintiff came to see him in regard to the wall. The plaintiff then brought a suit on 20-7-1943 for a declaration that the wall in dispute was his and for a mandatory injunction against the defendant to remove the disputed wall of his room built on the northern wall.
3. On 2-8-1947 the plaintiff made an application for the temporary injunction which was granted and the next day or the day following he made an application for the appointment of a commissioner to see as to how much construction had already been made, but the Court did not agree with this. On 29-8-1947 the plaintiff asked for action being taken for disobedience of the injunction and a local commissioner was appointed on the following day, and he made a report that the walls had been built but the rafters of the roof had not yet been put.
4. The appellate Court as well as the trial Court have found that it has not neen proved that the wall belongs either to the plaintiff or the defendant and that it is therefore a joint or a party-wall. It is in these circumstances that it has to be determined as to what is the consequence of the defendant's building on this wall. The learned Judge has directed a mandatory injunction for the removal of the wall of the room which has been built.
5. Several cases have been cited before me. On behalf of the defendant appellant it is argued that the removal of the wall should not be ordered, but the order should be, as was made by the Bombay High Court in -- 'Daood Khan v. Chandu Lal', AIR 1923 Bom 370 (A) that that portion of the wall which goes beyond the middle line of the wall belonging to the plaintiff should be declared to belong to the plaintiff. But, I with very great respect, am unable to agree that this lays down a correct law because it seems to be contrary to the weight of opinion of other Courts. Besides, in this Bombay case the encroachment was very small and according to the finding the building of the wall gave support to the wall of the plaintiff. The correct rule, in my opinion, has been laid down by a Division Bench of the Lahore High Court presided over by Sir Shadi Lal C. J. in -- 'Ganpat Rai v. Sain Das', AIR 1931 Lah 373 (B), where it was held that parties are in such cases tenants-in-common and the wall cannot be treated as a wall divisible longitudinally into two strips, one belonging to one neighbour and the other to the other, and the plaintiffs in that case were held entitled to the use of the whole width of the top of the wall subject to similar rights of the defendants and the construction on the wall amounted to an ouster.
The learned Chief Justice followed an English judgment in -- 'Watson v. Gray', (1880) 14 Ch. D. 192 (C), where it was held that the ordinary meaning of the term 'party-wall' is a wall of which the two adjoining owners are tenante-in-common, and if one of the two tenants-in-common excludes the other from the use of it by placing an obstruction on it, the only remedy of the excluded tenant is to remove the obstruction. In another English case, -- 'Stedman v. smith', (1857) 8 El & B1 1 (D), Crompton J. observed:
'You certainly had no longer the use of the same wall; you could not put flowerpots on it, for instance. Suppose he had covered it with broken glass, so as to prevent your passing along it, as you were entitled to do.'
The learned Judge went on to say--
'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.'
As was observed by Sir Shadi Lal C. J. in the Lahore case these observations apply as much to the present case as they did to the cases cited there.
6. In an earlier case in Madras, -- 'Kanakayya v. Narasimhulu', 19 Mad 38 (E), one of two te-nants-in-common of a party-wall raised the height of the wall with a view to building a superstructure on his own tenement. The other tenant objected although he suffered no inconvenience and he brought a suit to enforce the removal of the newly erected portion, and it was held that he could get the relief sought. I would refer to the observations of Subramania Ayyar J. where the learned Judge said--
'On further consideration, however, I have arrived at the conclusion that the better rule to lay down is the similar one enunciated in -- '(1880) 14 Ch D 192 (C) since it will compel such of the owners of party-walls as are desirous of adding to, or otherwise materially interfering with, the common property to obtain beforehand the consent of the others interested in it to the change being effected, and consequently is the one less likely to lead to disputes among joint holders of party-walls.'
The later view of the Bombay High Court in -- 'Shivputrappa Parappa v. Shivrudrappa Kal-appa', AIR 1926 Bom 387 (F)', is also the same as that which was taken by Sir Shadi Lal C. J. in Lahore. It was there held that if a party-wall is built upon without the consent of one of the parties he can get the obstruction removed. Reference wss in this case made to the Madras case, -- 'Watson v. Gray', (C) and several other cases, and particularly to the observations of Bay-ley J. in -- 'Cubitt v. Proter', (1823) 6 L J K B 306 (G), where the learned Judge had said--
'There is no authority to show that one tenant-in-common can maintain an action against the other 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. It 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 expediti-ously 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 clone further than it ought to have been done, what is the remedy of the other party? He may remove it. That is the only remedy ho can have.'
In yet another case which is much more recent,the Nagpur High Court has also taken the sameview in -- 'Mithoobhai v. Omprakash', AIR 1951Nag 389 (H), where Mudholkar J. has reviewedall these cases and has taken the same view aswas taken by the Lahore High Court. The weightof authority therefore is in favour of the viewwhich was taken by the learned District Judge,and I am in respectful agreement with the viewwhich has been taken by the learned Judges incases which I have noted above. I would, therefore, dismiss this appeal with costs.