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Sardari Lal Gupta Vs. Siri Krishan Aggarwal - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 2194 of 1978
Reported inAIR1984P& H439
ActsSpecific Relief Act, 1877 - Sections 9, 54 and 55; Cantonments Act
AppellantSardari Lal Gupta
RespondentSiri Krishan Aggarwal
Cases ReferredP.W. Holden v. A. J. Tidwell
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....rajendra nath mittal, j.1. this judgment will dispose of r. s. a. nos. 2194 of 1978 and 584 of 1979 which arise out of the same judgment of the additional district judge, jullundur, dt. l9th september 1978. 2. briefly, the facts are that the plaintiff is the owner of house no. 12 and the defendant of houses nos. 13, 14 and 40. the houses of the plaintiff and defendant adjoin each other. it is alleged by the plaintiff that the wall between the houses belonged to him. there was a ventilator in that wall from which he was getting light, air and sun for the last more than 65 years and thus he had acquired the right of easement. the defendant, it is pleaded, intended to close it. it is further pleaded that the defendant constructed a pillar on the southern end of the wall without his consent.....

Rajendra Nath Mittal, J.

1. This judgment will dispose of R. S. A. Nos. 2194 of 1978 and 584 of 1979 which arise out of the same judgment of the Additional District Judge, Jullundur, dt. l9th September 1978.

2. Briefly, the facts are that the plaintiff is the owner of House No. 12 and the defendant of Houses Nos. 13, 14 and 40. The houses of the plaintiff and defendant adjoin each other. It is alleged by the plaintiff that the wall between the houses belonged to him. There was a ventilator in that wall from which he was getting light, air and sun for the last more than 65 years and thus he had acquired the right of easement. The defendant, it is pleaded, intended to close it. It is further pleaded that the defendant constructed a pillar on the southern end of the wall without his consent and also raised the height of a part of the wall. Consequently, it was prayed that a decree for mandatory injunction directing the defendant to remove the pillar and to restore the height of the wall to its original height by demolishing the portion raised by him and for a permanent injunction restraining the defendant from closing the ventilator be passed.

3. The suit was contested by the defendant who controverted the allegations of the plaintiff and, inter alia, pleaded that the wall was common wall and that he had a right to raise the wall without the consent of the defendant. He denied that the plaintiff had acquired right of easement of air, light and sun through the ventilator. He further averred that the pillar was in existence since long and he simply renovated it. Some other pleas were also taken but they do not survive in the appeals.

4. The trial Court held that the wall intervening the house of the plaintiff and that of the defendant was common and the plaintiff had acquired right of easement of light, sun and air through the ventilator. Consequently, the suit was partly decreed and a permanent injunction restraining the defendant from closing the ventilator of the house of the plaintiff and mandatory injunction directing him to demolish the raised wall was issued by it. However, the suit of the plaintiff seeking declaration that the wall was his exclusive property was dismissed. Two appeals were filed before the Additional District Judge, one by the plaintiff and the other by the defendant. Both the appeals were dismissed by him vide judgment dt. l9th September 1978. The defendant has filed R. S. A. No. 2194 of 1978 and the plaintiff R. S. A. No. 584 of 1975 against the said judgment to this Court. The correctness of judgment of this Court in Pritam Singh v. Mohan Lal, 1969 Cur L J 627 was challenged before the Motion Bench. Consequently, the appeals were admitted to D. B. I shall first deal with the appeal of the defendant.

5. Mr. Jain contends that the appellant being a tenant-in-common of the party-wall has a right to raise its height and use it if no damage is caused to the respondent. According to him, raising of party-wall and using it by the appellant does not amount to ouster of the respondent, if the former does not dispute the rights of the latter as tenant-in-common. He further contends that the decision of the Court in Pritam Singh's case (1969 Cur L J 627) (supra) does not lay down the correct law and the decisions on which reliance was placed by the learned Judge therein are per incuriam as those cases, did not take into consideration the Indian Law but decided it on the basis of the English Law which was different from the Indian Law. In support of his contention he places reliance on Vaidya Trambaklal Purshottam v. Madhavji Premji, (1973) 14 Guj L R 194.

6. We have given due consideration to the arguments. The question that arises for determination is whether raising of the party-wall and using it by the appellant without the consent of the respondent if the former does not dispute the character of the wall is permissible in law. The learned counsel for the appellant has challenged the correctness of Pritam Singh's case (supra). The main reliance in Pritam Singh's case (supra) was placed on a Division Bench judgment of the Lahore High Court in Ganpat Rai v. Sain Das, AIR 1931 Lah 373. In that case, the plaintiffs and defendants were owners of two adjoining houses separated by a party-wall. The defendants raised the height of the wall with a view to building a superstructure thereon without the consent of the plaintiffs. The plaintiffs instituted a suit for mandatory injunction. The learned Bench mainly relying on Watson v. Gray, (1880) 14 Ch. D. 192 and Kanakayya v. Narasimhulu, (1896) ILR 19 Mad 38, came to the conclusion that the defendants had excluded the plaintiffs from the use of the wall to which they were entitled and, therefore, the plaintiffs were entitled to the injunction. The relevant discussion by the learned Bench is as follows:

'The question arises whether the action of the defendants constitutes a violation of the plaintiff's rights, and whether the plaintiffs can ask for a mandatory injunction. The facts warrant the finding that the plaintiffs have been ousted by the defendants from the possession of the common wall and are entitled to remove the obstruction. The leading authority on the subject is the judgment in Waston v. Gray (1880) 14 Ch. D. 192. in which Fry. J., laid down the rule that, if one of the two tenants-in-common of a wall between two adjoining houses 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. This rule has been followed by the High Courts in India: vide inter alia, Kanakayya v. Narasimhulu, (1896) ILR l9 Mad. 38; Ikram Ullah Khan v. Muhammad Yunis Ali Khan, (1915) 30 Ind. Cas. 33: (AIR 1915 All. 440) and Basant Singh v. Shibba Mal, (1928) l07 Ind. Cas. 48l.

* * * * * *

The learned counsel for the appellants however contends that us the defendants have not occupied the whole of the width of the top of the common wall, but have confined themselves to that moiety of the wall which is on the side of their own house and left the other moiety to the plaintiffs, the latter have no cause for complaint. To this contention I am unable to accede. As pointed out above this is a case of a party wall of which the two adjoining owners are, to use the phraseology of the English law, tenants-in-common: and the wall cannot be treated as a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners. The plaintiffs are therefore entitled to the use of the whole width of the top of the wall subject to a similar right of the defendants, and the construction of the new wall on half the width amounts to an ouster in so far as the width occupied by the defendants is concerned. As observed by Crompton, J., in Steadman v. Smith, (1857) 8 EL. & B1. 1:

'You certainly had no longer the use of the same wall; you could not put flower pots 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 further says:

'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 with the top of the wall.' Those observations apply to the present case, and there can be no doubt that the defendants have excluded the plaintiffs from the use of one-half of the top of the wall, to which they were entitled.'

In Watson's cases (1880-14 Ch. D. 192) (supra), reliance was placed on Cubitt v. Portor, (1828) 8 B. & C. 257. In Cubitt's case (supra) Bayley, J., posed a question that if one tenant-in-common has put bricks in order to heighten the wall, what is the remedy of the other tenant-in-common? The reply given by the learned Judge was that the other co-tenant could remove it himself. The relevant observations by the learned Judge read as follows:--

'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 he 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? He may remove it. That is the only remedy he can have.'

7. From the above observations, it is evident that, in England, the law at that time was that in case one of the tenants-in-common raised the wall, the other co-tenant himself could remove it and taking that into consideration it was held that if a tenant-in-common could remove the bricks himself, the Courts could also grant that relief to him. In Watson's case (1880-14 Ch. D. 192) (supra). Concurring with the said view, it was observed by Fry J. that if one of the two tenants-in-common of a wall excluded the other from the use of it by placing an obstruction on it, the only remedy of the excluded tenant was to remove the obstruction. The above case was also followed by a Division Bench of the Madras High Court in Kanakayya's case (1896-ILR 19 Mad 38) (supra). There, the defendants raised the height of the party-wall with a view to building a superstructure on their own tenement. The plaintiffs, the tenants-in-common, did not consent to the alteration in the wall. They though suffered no inconvenience therefrom, yet sued to enforce the removal of the newly erected portion. It was held that the plaintiff was entitled to the relief sought for. The main judgment is by Parker J., and it after reproducing the findings of the Court below, runs as follows:

'The plaint asks that the part of the wall newly raised by the defendants shall be removed, and on the authority of Watson v. Gray, (1880) 14 Ch. D. 192. I am of opinion that plaintiffs are entitled to the relief asked for. It is true that the refusal of plaintiffs to give the required permission may be ill-natured and that the raising of the wall will not really harm them; but, at the same time, the altered wall is no longer the same wall and the newly-erected portion will not be a common or party-wall. The erection of it might give rise to inconvenience and quarrels.'

Subramania Ayyar, J., in the first instance, wanted to take a different view but later concurred with Parker, J., by observing that the better rule to lay down is the simpler one enunciated in Watson's case (supra) 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 before hand 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.

8. Watson's (1880-14 Ch. D. 1921) and Kanakayya's (1896-ILR 19 Mad. 38) cases (supra) were inter alia followed in Shivputrappa Parappa Kamshetti v. Shivrudrappa Kalappa Huli, AIR 1926 Bom. 387; Mithoobhai v. Omprakash. AIR 1951 Nag. 389: Durga Parshad v. Jheetar Mal, AIR 1954 Punj. 125: Balvant Yadneshwar v. Srinivas Appaji Kulkarni. AIR 1959 Mys. 244 and Roopchand v. Punamchand, AIR 1962 Raj. 227. Similar view was taken by Tuli, J., in Pritam Singh's case (1969 Cur. L. J. 627) (Punj.) (supra). The learned Judge placed reliance on Ganpat Rai's (AIR 1931 Lah. 373) and Durga Parshad's (AIR 1954 Punj. 125) cases (supra). The counsel for the respondent in that case referred to C. S. Ramchandra Rao v. P. Chinnaswamy Kandar, (1967) 1 Mad. L. J. 316. wherein it was observed as follows:

'In the case of a common party wall each co-owner is entitled to a reasonable user of the wall owned in common and so long as each co-owner uses it reasonably without interfering with the enjoyment of that wall by the other co-owner or without doing anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes. The other co-owner will have no cause for complaint unless the acts alleged amount to his ouster or to destruction of the party wall.

It is a salutory rule to follow that owners of party wall, who are desirous of adding to or otherwise materially interfere with the common property, should obtain the consent of the others interested in it, to the change being effected. If the consent is unreasonably withheld it will be open to the party proposing, to put up the construction to seek relief by way of injunction from the Court as withholding consent to any reasonable use will itself amount to ouster.'

The counsel for the respondent in that case urged that the appellant was withholding his consent to a reasonable user of the wall which was already 8 feet high and was serving as a parda wall between the houses of the parties from raising its height by another 3 feet in order to enable him to build a room on his tenement which will in no way interfere with the user of the wall by the appellant.

The respondent was willing to treat the entire wall as a joint wall of the parties even when he raised its height only at his own expense and that he would not claim separate ownership of it or any cost of building it. It was further contended that the wall was 41/2 inches in width and the respondent wanted to have its support for the roof of the room that he wished to build on his own side of the wall. The learned Judge rejected the contention, observing that the reasoning was contrary to the decisions of the Lahore High Court and this Court referred to above and it was not possible for him to accept the same. From the above observations it is evident that the learned Judge did not notice the law as existed in India but decided the case mainly on the basis of Ganpat Rai's (AIR 1931 Lah 373) and Durga Parshad's (AIR 1954 Punj 125) cases (supra) which in turn followed the English decisions.

9. The observations in Kanakayya's (1896-ILR l9 Mad 38) and Ganpat Rai's (AIR 1931 Lah 373) cases have been reproduced in detail above. It is clear from them that the learned Judges did not advert to the provisions of the law as existed at that time in this country while deciding these cases. S. 9 of the Specific Relief Act, 1877 provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. The section provides a speedy and summary remedy to a person who has been wrongfully dispossessed, on the basis of his possession. In such a case the defendant cannot plead his title nor the Court can go into that question. The provision has been made in order to avoid breach of peace and to prevent the aggrieved party to take law into his own hands. A person who has been dispossessed from property can also institute a suit for possession on the basis of title. In India it was never intended that if a person is deprived of his right to the property, he should take law in his own hand to redress his grievance. The law in England as referred to in Watson's (1880-14 Ch D 192), Steadman's (1857-8 EL & B1 1 and Cubitt's (1828-8 B & C 257) cases (supra) was different. In that country if a tenant-in-common raised any construction on a party wall, the other tenant could remove the same himself. In view of the said position of law it was held that if an individual could redress his grievance by his own act, the Court could also get the same redressed.

10. In India legislation provided in what circumstances the relief of injunction could be allowed by the Courts. S. 54 of the Specific Relief Act 1877, dealt with the cases where perpetual injunction could be granted. It inter alia provided that when the defendant invaded or threatened to invade the plaintiff's right to, or enjoyment of property, the Court might grant a perpetual injunction where there existed no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; where the invasion was such that pecuniary compensation would not afford adequate relief; and where it was probable that pecuniary compensation could not be got for the invasion. Section 55 said that an injunction could be granted in mandatory forms to prevent the breach of an obligation when it was necessary to compel the performance of certain acts which the Court was capable of enforcing. While granting mandatory injunction the same principle was to be kept in mind as was applicable for granting perpetual injunction. Similar provisions have now been incorporated in the Specific Relief Act, 1963. Before granting injunctions the Court has to take into consideration whether the case is covered by the said sections. It is a settled proposition of law that if a person can be compensated by damages, the Courts generally do not grant him the relief of injunction. While granting injunction in favour of a tenant-in-common regarding the joint properties, the said principle is kept in view. In the aforesaid view I am fortified by the observations of the Privy Council in Robert Watson & Co. v. Ram Chand Dutt, (1890) 17 Ind App 110. The principal question of law in that appeal was as to the rights of tenants-in-common, inter se, to cultivate or restrain the cultivation of lands in Bengal, so held in a tenancy-in-common. The District Judge held the plaintiffs to be entitled to the injunction sought in the plaint, i.e., a permanent injunction prohibiting the defendants from sowing indigo, and from allowing anybody else to do so without the plaintiffs' consent. The declaratory part of the decree was that the plaintiffs' interest in 4120 bighas of land cultivated by the Watsons with indigo was two-thirds of 14 annas, that they were entitled to joint possession with the Watsons of those lands, and also to their similar proportion of the rent of those lands calculated at 8 annas per bigha. In appeal the High Court declared the right of the plaintiffs to joint possession of the entire 14 annas of the khas lands, and a similar proportion of rent at 8 annas per bigha, and granted an injunction restraining the Watsons from excluding the plaintiffs by any means from their enjoyment of the joint possession of those lands, and from taking, retaining, or giving to others exclusive possession thereof as against the plaintiffs. The defendants went up in appeal to the Privy Council. Their Lordships observed as follows:

'Their Lordships are of opinion that the judgment and decree of the High Court are erroneous and ought to be reversed, with costs, and that the decree of the District Judge ought to be modified and partly reversed. It was contended on the part of the respondents, that the acts of the Watsons amounted to what in England is called an actual ouster, and that the plaintiffs were entitled to a decree ordering them to be put into ijmali possession with the defendants; but it appears to their Lordships that the plaintiffs have not established a right to have such a decree; and for the same reason they think that so much of the decree of the District Court as declares that they are entitled to get joint possession ought to be reversed. It seems to their Lordships that if there be two or more tenants in common, and one (A) be in actual occupation of part of the estate and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property and another tenant in common (B) attempts to come upon the said part for the purpose of carrying on operations there inconsistent with the course of cultivation in which A. is engaged, and the profitable use by him of the said part, and A. resists and prevents such entry, not in denial of B's title, but simply with the objection of protecting himself in the profitable enjoyment of the land, such conduct on the part of A would not entitle B to a decree for joint possession. Their Lordships are further of opinion that the decree of the District Judge, so far as it orders an injunction to be issued, ought to be reverse. It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy. In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husband-like manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation until al1 the share holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected--a work which, in ordinary course, in large estates would probably occupy a period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal the courts of justice, in cases where no specific rule exists, are to act accordingly to justice, equity, and good conscience, and if, in a case of shareholders holding lands in common, it should be found that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's labour or capital.'

It is evident from the above observations that their Lordships preferred to grant damages instead of injunction to the tenants-in-common regarding joint property. The case was decided as far back as April, 1890.

11. It is well settled that in the case of immovable property owned jointly by tenants-in-common, each tenant is interested in every infinitesimal portion of the property and has the right irrespective of his share to be in possession of every part of property jointly with the other tenants, but that does not mean that a tenant has got a right of action against the others if the latter puts the property to a proper use as that does not constitute invasion of the right of a co-sharer (see Mahesh Narain v. Nowbat Pathak, (1905) ILR 32 Cal 837.)

12. If the matter is examined from this point of view, it is clear that every owner has same rights in a party-wall and he is entitled to its user in a reasonable way. He can even raise its, height provided he admits the newly erected portion of the wall, a joint property of all the co-owners. He can also support his building on the common wall if that does not cause damage to the other co-owners. However, if a co-owner wants to raise the construction on the common wall with the purpose of ousting the other co-owners the ousted co-owners are entitled to raise objection regarding the construction.

13. It is thus clear that the judgment in Ganpat Rai's case (AIR 1931 Lah 373) (supra) was rendered in ignorance of the position of law as existed then. The learned Judges proceeded on the basis of English Law according to which if one of the co-owners of a party-wall placed obstruction on it, the aggrieved party had himself the right to remove the obstruction. However, the law in India was different. Therefore, the said judgment is per incuriam. After noticing Salmond on Jurisprudence it has been held in Yeshbai v. Ganpat Irappa Jangam, AIR 1975 Bom 20. that a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to and had not present to its mind, the precise terms of the statutes. Similarly a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand: such a mistake is again such incuria as to vitiate the decision. Similar view was taken in Sitaram Hari Salunkhe v. Laxman Rambodh Dubey, AIR 1980 Bom 55, and Thuraka Onnuramma v. Tahsildar, Kadiri, AIR 1980 Andh Pra 267. We are in respectful agreement with the abovesaid view. Therefore, we are not bound to follow the ratio in Ganpat Rai s case (AIR 1931 Lah 373). We are further of the view that in this situation it is not necessary to refer the case to a larger Bench. With great respect to the learned Judges, in our opinion, Durga Parshad's (AIR 1954 Punj 125) and Pritam Singh's (1969 Cur LJ 627) (Punj) cases were not correctly decided and consequently these stand overruled.

14. In the aforesaid view we are fortified by the observations of a Division Bench in Vaidya Trambaklal Purshottam's case (1973-14 Guj LR 194) wherein similar question arose and was decided by a Division Bench of the Gujarat High Court. In that case main reliance was placed by the respondents on Shivputrappa's case (AIR 1926 Bom 387). The learned Bench came to the conclusion that in Shivputrappa's case the Court proceeded on an erroneous assumption that an aggrieved party had himself a right to remove the obstruction. It was observed that the Court did not inquire as to what was the Indian Law on the point and applied the English Law without investigating what the true English Law then was. Consequently it held that the decision in that case was per incuriam. Regarding the rights of tenant-in-common in the joint wall the observations of the Bench are as follows:

'When a co-owner uses the joint wall for. the improvement of his property, without injuring the wall or the adjoining property and not claiming the additional structure as his own, it cannot be said that the co-owner who builds upon common wall makes an unreasonable use of common wall. Merely because a co-owner makes a profitable or reasonable use of the joint property, it cannot be said that the other co-owner is ousted as the additional structure is the property of both. If a co-owner raises the common wall and claims the additional structure as his exclusive it may amount to ouster of the other co-owner. If a co-owner raises the common wall and such an act is likely to cause damage to the adjoining property or the common wall the use thereof is not reasonable and any co-owner who is aggrieved may have remedy at law. When without injuring the common wall or the adjoining property a co-owner makes a reasonable or profitable use of it, it cannot be said that he makes an unreasonable use of the property. The houses which the common wall divides were built many years ago; they would require repair or need modern reconstruction to suit the requirements of the occupiers. The society moves fast, the changes are speedy and to hold that one co-owner has absolute right to prevent the other co-owner from making profitable or reasonable use of the common wall would prevent citizens from making profitable use of their properties.'

Similar view was taken in C. S. Ramachandra Rao's case (1967-1 Mad LJ 316) (supra). The relevant observations of the learned Judge have already been reproduced above. We are respectfully in agreement with the observations in the above said case.

15. Now we advert to the facts of this case. It has been held by the Courts below that the wall is a party-wall. The finding being one of fact cannot be gone into in second appeal. Therefore, in view of the above observations the raising of the party-wall and using it by the appellant without the consent of the respondent is permissible, if the respondent does not suffer any damage.

16. The matter may be examined from another angle. The properties are situated in the Cantonment area. In the Cantonments Act which is applicable in all the cantonments, the word 'party-wall' has been defined as follows:

' 'party-wall' means a wall forming part of a building and used or constructed to be used for the support or separation of adjoining buildings belonging to different owners, or constructed or adapted to be occupied by different persons.'

17. From a reading of the definition it is evident that the party-wall is either used for the purpose of separation of the adjoining buildings or for the support of such. buildings. It is not the case here that the party-wall is for separation of the buildings only. On the other hand admittedly the plaintiff-respondent is using it for the support of his building. In this situation it cannot be said that the defendant-appellant is not entitled to use it for the same purpose. From this point of view also, it is clear that the appellant is entitled to make a reasonable use of it.

18. Now it is to be seen whether the respondent will suffer any damage, if the appellant supports his building on it. Mr. Sharma has argued that there is a ventilator in the wall from which the respondent is getting light and air in a room of his house. The appellate Court has held that the respondent had acquired right of easement to get light and air through the ventilator. He submits that in case the appellant constructs the building, the respondent will not get the light and air from the ventilator and thus his prescriptive right would be defeated.

19. We have duly considered the argument but are not impressed with it. The party-wall is ordinarily a solid wall throughout its entire extent. It follows that the co-owners of the wall do not have a right to open ventilators or windows or other openings in it except by an agreement with the other owner or under a statutory provision. Our attention has not been drawn to any statutory provisions under which a co-owner can keep any window or ventilator or opening in a common wall. The result is that if any window etc. has been kept in such a wall, the other co-owner has a right to close and make use of that portion on his side. The co-owner having window, etc. cannot acquire right to easement of light and air through a party-wall. In the above view we are fortified by the observations in P.W. Holden v. A. J. Tidwell, 49 LRA (NS) 369, where it was held that a party-wall must ordinarily be construed to mean a solid wall without windows and openings and in the absence of statutory regulation or express agreement between the parties, the right exists either to close such openings or windows as may have been placed in the said wall at a time when one of the lots was vacant (see head-note 3). The plaintiff-respondent, in our view, cannot, therefore, claim right of easement regarding air and light to his building through the common wall. In this situation it cannot be held that the respondent shall suffer any damage, if the appellant supports his building on the party-wall and closes the ventilator. The appeal, therefore, deserves to be accepted.

20. Now we advert to R.S.A. No. 584 of 1979 filed by the plaintiff. The only contention of Mr. Sharma is that the wall in dispute is not a party wall but is exclusive wall of the plaintiff. He vehemently contends that the finding of the appellate Court is erroneous.

21. We do not find substance in the submission of the learned counsel. It has already been held above that the finding whether the wall in dispute is a party-wall or not is a question of fact and Mr. Sharma cannot be allowed to assail this finding in the second appeal. He has not been able to show to us that the finding is perverse or stands vitiated. In this situation a finding of fact arrived at by the first appellate Court is binding in second appeal. Therefore, there is no merit in this appeal.

22. For the aforesaid reasons we accept Appeal No. 2194 of 1978 and dismiss the suit of the plaintiff. We, however, dismiss Appeal No. 584 of 1979. No order as to costs.

23. Order accordingly.

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