A.D. Desai, J.
1. This second appeal comes before us for final decision on the reference made by our brother D. A. Desai. J. Shortly stated the relevant facts are that the appellant-defendant and respondent-plaintiff are neighbours and their houses are adjoining. The suit house of the defendant is situated in the east of that of the plaintiff. Till the filing of the suit, the house of the defendant had a ground floor only. There is a wall dividing the two houses. The total length of the wall is 22 feet. The breadth of the wall is 9 inches. There is no dispute between the parties that the common wall having the length of 19 feet on the ground floor is a joint wall. The first 4 feet of the wall is admittedly of the exclusive ownership of the plaintiff. The plaintiff had constructed a first floor and in so doing he increased the height of this common wall. It was the case of the plaintiff that this wall on the first floor which was erected on the common wall was his exclusive property. In constructing the second floor of his house, the defendant had raised the wall on the second floor which was constructed by the plaintiff. This additional wall is 9' in breadth and the plaintiff and the defendant differ about its height. According to the plaintiff it is 4 feet and according to the defendant it is 1 feet. The defendant has put a slab over this wall. The plaintiff, therefore, claiming to be the independent owner of the wall on the first floor, which divides the houses of the plaintiff and the defendant, prayed for a declaration that the said wall is his exclusive property. The plaintiff also prayed for a mandatory injunction against the defendant ordering him to remove the additional construction erected by the defendant on this wall. The defendant contested the suit contending that the wall on the first floor which was erected on the common wall was the joint property of the plaintiff and defendant. The defendant denied that the plaintiff was exclusive owner thereof. The defendant further contended that by reason of the construction he had made, he had not ousted the plaintiff or interferred with his right as a co-owner.
2. The learned trial Judge decreed the suit of the plaintiff directing the defendant to pull down the raised portion of the disputed wall so as to bring it at the original height as it stood before. Being aggrieved by the said decree the defendant filed Regular Civil Appeal No. 75 of 1956 in the Court of the Assistant Judge, at Jamnagar, who agreeing with the trial Court dismissed the appeal. It is against this decree that this second appeal was filed in this Court. When the appeal was heard by the learned Single Judge of this Court, the argument that was advanced was whether raising of a party wall by one of the tenatits-in-common without consent or acquiescence of the other tenant-in-common would not be a reasonable use of the wall, or whether in every case it would be such an unreasonable use or invasion of the right of the other tenant-in-common so that the tenant-in-common complaining about it, even though unreasonably withholding his consent or acquiescence, was entitled to a discretionary relief of mandatory character. The learned Judge was of the view that if on either side of the party wall a cupboard can be fixed, niches can be dug out, seems can be inserted, all of which fall within the ambit of a reasonable use thereof, then raising of the height of the joint party wall by one tenant-in-common for a legitimate purpose of enclosing one side of his house built at a higher level could not by any stretch of imagination be said to be an unreasonable use thereof. The learned Judge referred the matter to the Division Bench because he found himself bound by a decision of the Division. Bench in Shivputrappa Parappa Kamshetli v. Shivrudrappa KaJappa Hull 28, B.L.R. 708, wherein it was held that where one co-owner of a party wall raises the height of the wall without the consent, or acquiescence of the other co-owner, the latter can either himself remove the raised portion of the wall without rendering himself liable to a claim for damages or can obtain an injunction from the court in order to get the raised portion removed.
3. Now in the case of Mahesh Narain v. Nowbal Pathak I.L.R. 32 Cal. 837, Mookerjee, J. denied the rights of the co-owner as follows:
It is perfectly true that in the case of immoveable property jointly owned, each co-owner is in theory interested in every infinitesimal portion of the subject matter, and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property jointly with the other, or in the language of Lord Coke, 'their occupation is undivided, and neither of them known his part in several' (Co-Litt Section 292). But it does not follow that every use of joint property by one co-owner renders him liable to an action for account to the other, even though the use is perfectly legitimate and does not constitute an invasion of the rights of the co-sharer. If there is no assertion of hostile title, no exclusion or ouster, obviously an action of ejectment cannot lie. If there is no destruction of the properly, no conversion an action of trove is not the appropriate means of redress;....
No exception can be taken to this statement of law and it is in this light that we have to consider the point raised before us. In Mohanchand Nemchand v. Isakbhai Valad Ianji 2 B.L.R. 898, the plaintiff sued to restrain the defendant who had commenced to lay a drain pipe, for the purpose of carrying off the drainage from his premises, under the surface of a piece of land which was held by the defendant in common with the plaintiff. The court held that the act of the defendant was not an infringement of the rights of the co-tenant giving rise to a cause of action because the laying the drain and the incidental temporary interference with the soil could not be regarded either as an ouster or destruction or even an act of waste. During the course of the judgment the court referred to the statement of law laid down by Lord Hatherly in Jacob v. Sewara L.R. 5 E. & LA. at page 474 and the passage is as under:
The cases in which trover would lie against a tenant-in-common are reducible to this. They are cases in which something has been done which has destroyed the common property, or where there has been a direct and positive exclusion of the co-tenant-in-common from the common property, he seeking to exercise his rights therein and being denied the exercise of such rights.
Thus the principle of law is that when the co-tenant is ousted from the common property or when the other co-owner does something which destroys the common property a relief in court can be obtained.
4. In the instant case it is now admitted by the plaintiff that the wall on the first floor which was erected by him is their joint wall. It is also undisputed that the defendant has raised this wall. The parties have a dispute as to its height but as far as width is concerned, it is admittedly 9'. The question is whether the plaintiff, who is the co-owner, can be said to have been excluded or ousted in its user or prevented from exercising his right therein as a co-owner. The contention of Mr. Shah was that the plaintiff had been excluded or ousted from the use of the wall and, therefore, entitled to a relief of injunction. In support of his proposition he placed strong reliance on the decision of the Division Bench of the Bombay High Court in the case of Shivputrappa Parappa Kamshetti (supra). The facts of that case were that there was one wall between the house of the plaintiff and the defendant. The defendant without the consent of the plaintiff raised the height of the wall in order to rest his roof on it. The plaintiff, therefore, sued for injunction restraining the defendant from raising the height of the wall and for a mandatory injunction ordering the defendant to remove the newly raised portion of the wall. The court considered the right of one co-owner of a party wall against the other co-owner who had raised the party wall. In the opinion of the court that question was answered in Cub v. Porter (1828) 8 B. & C. 257, in which case Justice Bayley observed as under:
There in 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 making a prompt restitution. It was not a destruction : the object of the party was not that there should be no wall there, but there should be a wall there again as expeditiously as a wall could be made. But then it is said the wall was before. What is the consequence of that One tenant is 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.
The Division Bench of the Bombay High Court then referred to the decision of Watson v. Gray 1880, 14 Ch. D. 192, where the plaintiff complained that the defendant had committed certain acts of trespass in that he had knocked down the new pieces of wall which the plaintiff had built on the top of the party wall and claimed damages, it was held that the plaintiff was not entitled to any damages, in respect of the throwing down of the new pieces of wall. The Division Bench then observed:
Now we have to deal with the question whether, if one co-owner raises the wall without the consent or acquiescence of the other co-owner, he makes himself liable to an action for an injunction. It seems to us that if it is the law that the plaintiff can himself remove the raised portion of the wall without rendering himself liable to a claim for damages, he is a fortiori entitled to come to the court and ask for an injunction in order to get the raised portion removed.
In that case the court granted mandatory injunction as asked by the plaintiff. The case proceeded on the assumption that a co-owner has a right to remove the construction that the other co-owner had erected without his consent. The court did not decide the point as to whether such was the right of the co-owner, and this is clear from the expression 'it seems to us that if it is the law that the plaintiff can himself remove the raised portion of the wall without rendering himself liable to claim damages, he is a fortiori entitled to come to a court and ask for injunction....' The court proceeded on assumption that the principle laid down in Court v. Porter was applicable to India. At the time when Shivputrappa's case (supra) was decided, Specific Relief Act, 1877 had come into force and Section 9 thereof provided that if any person was dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him might by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. The main idea of enacting this section was that the disputed rights were to be decided by due process of law and not otherwise. In order to prevent breach of peace or riots a person was prevented to take law in his own hand. The provisions of Section 9 provided a speedy remedy. A person dispossessed of immoveable property or any right thereof had also the right to proceed in the manner prescribed in the Civil Procedure Code. The person who is dispossessed in contravention of law has also a remedy in criminal law. The Legislature did not intend that such a person should take law in his own hands so as to remove the wrong done to him. The Legislature required that such a person should remedy the wrong done to him through court.
5. Thus the old Law of England and the Indian Law are different on the point. What was the correct English Law on this point has been pointed out by the Division Bench of the Bombay High Court in the case of Emperor v. Ztpru Tanaji Patil 29 B.L.R. 484. The facts of this case where that the accused, who had a right of way for his carts across the fields of the complainants, was prevented from exercising his right by the complainants erecting dams in the fields. The accused resorted to the Mamlatdar's Court and obtained an injunction restraining the complainants from interferring with the accused in the exercise of right. The complainants failed to comply with the injunction. The accused instead of enforcing the injunction, himself proceeded to the complainant's fields and had the dams abolished. The question before the court was whether the accused was guilty of an offence under Section 426 of the Indian Penal Code. While considering the said question the court referred to what the English law was and observed:
Thus in Blackstone's Commentaries, on the Laws of England Book 3, Chapter I, page 5, it is stated as follows : Whatsoever unlawfully annoys or both damage to another is a nuisance and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot (or breach of the peace) in the doing it.... If a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way may cut it down and destroy it.
It is however said in Peacock's 'Law Relating to Easements' (1st Edition) p. 505, that this form of remedy has not been in favour with the English Courts in the modern times. Thus, in Hyde v. Graham (1862) 1 H & C page 598, Pollock, C.B. said:
No doubt in Blackstone's Commentaries some instances are given where a person is allowed to obtain redress by his own act, as wall as by operation of law, but the occasions are very few; and they might constantly lead to breaches of the peace, for if a man has a right to remove a gate placed across the land of another, he would have a right to do it even though the owner was there and forbade him. The law of England appears to me, both in spirit and on principle, to prevent persons from redressing their grievances by their own act.
The Indian Legislature has enacted laws by which a person injured can without any delay remedy the wrong done to him and thus has prevented an individual himself taking steps to remove the wrong done to him. When Shivputrappa's case was decided the English law prevented persons from redressing their grievances by their own acts. Thus in Shivputrappa's case, the court proceeded on an erroneous assumption that an aggrieved party had himself a right to remove the obstruction. In the said case 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. The said decision is, therefore, per incuriam. In Shivputrappa's case the court relied upon the decision in Watson v. Gray and the facts of the case were that the plaintiff had recently commenced erecting in backyard a shed. This shed immediately adjoined the wall separating his yard from the defendant's yard and the plaintiff had without the defendant's permission built on the top of that wall a new piece of wall of a triangular shape about 4'-6' in length at the bottom, and about 3'-4' in height. The new piece of wall was intended to support the shed. The defendant had knocked down the new piece of the wall. The plaintiff claimed damages for the removal of the new piece of wall, and an injunction to restrain the defendant from interfering with the rebuilding of it. The court came to the conclusion that the disputed wall was party wall. The court followed the decision in Cubitt's case. What is to be remembered is that the wall in dispute was a wall in the yard. The wall in dispute was not a wall which divides two houses, as in our case. Uses to which the yard wall and the use to which the wall which divides two houses can be put to are different. A backyard wall can be used for putting a flower pot but the wall dividing two houses is not used for such a purpose. It is thus clear that the decision in Watson's case is quite distinguishable and the distinctive features are two fold. The first is that the said decision was based on English Law which permitted an individual himself to remove the wrong without approaching the Court of Law; the second is that the wall which was the subject matter in that case was a compound wall.
6. In Robert Watson & Co. v. Ram Chand Dull and Ors. 17', Indian Appeals, 110, Their Lordships of the Privy Council, considered the rights of the co-owners of cultivable lands. In that case Robert Watson & Co. were co-owner of a joint estate. The other co-owners wished to grow oil seeds and they sued for an injunction to restrain Watson from growing Indigo on Ijmali land. While discussing the rights of the co-owners, Their Lordships observed:
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 object 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 reversed. 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 all the shareholders 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 estate 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 according 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.
The ratio of this decision is that the co-owner is entitled to make profitable use of common property and if one uses to the exclusion of the other co-owner, the excluded co-owner is entitled to damages and the injunction is not the proper remedy.
7. The question again came before the Privy Council in Lachmeswar Sing v. Manowar Hossein and Ors. I.L.R. 19, Cal. 253. The facts of the case were that a suit was brought against Lachmeswar, the Maharaja of Durbhanga, in reference to a ferry over the river Bagmati near the Kamtowal Indigo Factory. As a purchaser of the factory, the Maharaja had become a proprietor of two annas share in the village Baigra (which village Kamtowal adjoined) and of the ferry, where the channel and landing places were on the Ijmati lands. The place from which the ferry started, the river itself and the land on the otherside were joint property. The defendant alone got the income on account of the ferry. Passage by ferry free of toll was allowed to the plaintiffs. The plaintiffs were the co-owners of the remaining fourteen annas of this mouza and they brought a suit for a declaration of their rights to profits of the ferry proportionate to the amount of their shares in the village and also claiming to have the defendant restrained by injunction from opposing the possession of the plaintiffs. The defence of Maharaja was that he had exclusive right to the ferry by prescription. The principle question in the case was as to the rights of co-owners of undivided property, where part of it was profitably used by one of them in regard both to continuance of possession by all and their right to share in the profits made by the use of the property common to all. The trial Court held that the possession of the defendant was adverse and the suit was barred by time. On appeal the High Court held:
What the lower court has found is, that the landing place of the ferry in question is on joint land of mauza Baigra, and that the bed and the western bank of the river Bagmati are also on joint lands of village Baigra; that a bridge was constructed by the Kamtowal Factory some thirty years ago, and when that bridge fell through a ferry was started and tolls levied by the factory, but not to the exclusion of the plaintiff: but on the contrary, that the maliks of Baigra and their men were allowed to pass over free of toll; that is, one man established the ferry at his own expense and levied the tolls, but he never assumed that he had exclusive rights over it, and the arrangement was that the other co-sharers and their men should be carried across free of charge. It seems, to us that when they had a right to go across as a right and free of toll, the possession of the factory cannot be said to be exclusive.
We are, therefore, of opinion that the decree of the lower Court should be set aside, and that it should be declared that the river Bagmati and the ghat or ferry of the river at Baigra are within mauza Baigra in pargana Jarail, and that the defendants are only entitled to hold possession and appropriate the profits of the said ferry in proportion to their proprietary right in the said mauza Baigra. We further direct that the said defendants do account for the profits of that ferry from date of suit to the present date, and for this purpose that the record be sent down to the Judge in the lower Court,....
An appeal was filed in the Privy Council and Their Lordships observed:
There seems to be but little authority in decided cases to show how far courts of justice will interfere to control the use of property as between joint owners, or how fat they will leave those who are dissatisfied with its use to seek a remedy by partition.
Their Lordships then referred to the case Watson & Co. v. Ramchand Dutt (supra) and citing the passage there from which is quoted by us herein above observed:
Their Lordships have not referred to the case of the Watson in order to follow the decision, for the facts of that case and of this are very different; but for the purpose of showing authority for the position that the courts should be very cautious of interfering with the enjoyment of joint estates as between their co-owners, though they will do so in proper cases.
Now in this case the High Court has not granted any injunction, but it has made a declaration with respect to the possession and profits of the ferry, and has directed an account of the profits accordingly. But if the defendant's use of the landing places and the river is consistent with joint possession, why should the plaintiffs have any of the profit They have not earned any, and none have been earned by the exclusion of them from possession, as was done by the Watson's in the case cited. By the defendant's act they have lost nothing, and have received some substantial convenience. It will be time enough to give them remedies against him when he encroaches on their enjoyment.
But then they ask to have it declared that the river and the ferry are within mauza Baigra, and that the defendant may be restrained from offering opposition to their possession. If the defendant had not denied their title, it would clearly not have been proper to give them any such relief. Should it make any difference in this respect that, when asked to account for the profits of the ferry, the defendant has sought to protest himself by setting up a title in himself to the profits of the ferry and to the landing places With some doubt their Lordships think not. It does not appear that the plaintiffs, even before the suit, asked for anything but a share in the profits, and though they now ask for removal of opposition to their possession, they themselves state, and their Lordships now hold, that all the co-sharers have been in possession all along. No such decree therefore is needed.
This case clearly lays down that if joint property is used consistently with the continuance of the joint ownership and possession, without exclusion of the co-sharer, there is no encroachment of the rights of such co-owner as regards common enjoyment so as to give ground for a suit.
8. In Midnapur Zamindary Co. Limited v. Naresh Narayan Roy and Ors. 51, Indian Appeals, 293 the Privy Council had again to consider the question of right of co-sharers in respect of non-cultivable lands and Their Lordships observed as follows:
The lands in suit are comprised in an estate which has been periodically settled under Ben. Reg. II of 1819. As has been mentioned, they are char lands. The proprietary interest in the lands is admittedly vested in the plaintiff and the Midnapur Company as co-sharers, who hold the lands in common. Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husbandlike manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands. When co-sharers cannot agree how many lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands.
9. It is strenuously argued by Mr. Shah that the decision given by the Division Bench in Shivputrappa's case (supra) is binding to us being a decision of the Division Bench and if we differ from the ratio decidendi, the only alternative for us is to refer the matter to a Full Bench. A Special Full Bench of this Court in State of Gujarat v. Gordhandas Keshavji Gandhi, III G.L.R. 269 has considered the question as to binding nature of judicial precedents. K. T. Desai, CJ. in his judgment at page 284 observed:
Judicial precedents are divisiable into two classes, those which are authoritative and those which are persuasive. An authoritative precedents is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court.... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of co-ordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's jurisprudence, 11th Edn. at page 199 to 217.
(1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.
(2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.
(3) A precedent loses its binding force if court that decided it overlooked an inconsistent decision of higher court.
(4) xx xx xx xx xx
(5) Precedents sub silentio are not regarded as authoritative. A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind.
The decision in Shivputrappa's case (supra) was given on the assumption that the old English Law, namely, that a co-owner whose right had been infringed had a right to remove that which infringed his right. The court did not inquire whether the said law was applicable to India or what was the correct English Law on the point. The case was decided in ignorance of the Indian Law. The said decision is also inconsistent with the Privy Council decisions in Rober Watson & Co., Lachmeswar Sing, and Midnapur Zamindary Company Limited (supra). The consequence is that the said decision is per in curium and lays down a principle which is contrary to what the Privy Council said in various decisions discussed herein before. That being the case, the legal doctrine of stare decisis cannot be invoked. The result of non-acceptance of the decision in Shivputrappa's case will be that pending suit or suit which will be brought in future involving question would be affected. The result is that the said decision cannot be considered as a binding authority. It is therefore, not necessary for us to refer this case to a Fuller Bench.
10. In the present case the defendant has erected a wall on a half portion of the joint wall. The question is whether by such construction, the other co-owner is ousted in exercising his rights of co-ownership. In this country the houses are so constructed that joint wall is not an in common feature. Common wall serves the purpose of giving support to both the houses and divides them so as to keep or assure privacy. This is the main purpose which a common wall serves. There are other incidental uses of the common wall e.g. fixing cup-boards, constructing niches, using to support the beam etc. When the main purpose of the joint wall is to support adjoining buildings, can it be said that when a co-owner erects an additional wall on a part of the joint wall to support the structures which he intends to erect in his property that he makes an unreasonable use of the wall, when he admits that the newly erected wall is a joint property of his and the other co-owner? When a co-owner uses the joint wall for the improvement of his own property, without injuring to the wall or the adjoining property and not claiming the additional structure as his own, can it be said that the co-owner who builds upon common wall makes an unreasonable use of common wall The answer, to put in the words of their Lordships of the Privy Council is that such a co-owner makes a profitable use of the property which the other co-owner does not make any use of. Merely because a co-owner makes a profitable or reasonable use of the joint property, it cannot be said the other co-owner is ousted as the additional structure is admitted to be 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. As said above, the common wall can be used mainly for the support. By the erection of the wall by defendant the plaintiff has not suffered any injury or inconvenience. No right of the plaintiff is destroyed. He can with advantage use the additional structure. By the said act of the defendant, the plaintiff has lost nothing but to some extent has obtained an advantage.' There is an accretion to the joint property without any damage to it. 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.
11. In Kanakayya v. Narasimhulu and Ors. A.I.R. 19, Madras, 38 Subramania Ayyar J. while dealing with the question of rights of co-owners referred to the decision in Bookes v. Curtis, Gray's case on Property Vol. II pp. 225, 226, where the Court of Appeal, observed:
The fairer view and the one generally adopted in legislative provisions on the subject in this and other countries is to treat a party-wall as a structure for the common benefit and convenience of both of the tenements which it separates and to permit either party to make any use of it which he may require either by deepening the foundation or increasing the height, so far as it can be done without injury to the other. The party making the change, when not required for purposes of repair is absolutely responsible for any damage which it occasions; but in so far as he can use the wall in the improvement of his own property without injury to the wall or the adjoining property, there is no good reason why he should not be permitted to do so.
This decision in Brookes case completely supports the view which we are taking.
12. During the course of arguments Mr. Shah in supports of his arguments that when co-owner of a party wall raises the height of the wall without consent or acquiescence of the co-owner, the latter can either remove the part of the wall or can obtain injection from the court in order to get the raised portion removed, relied upon the following decision (1) Ganpatrai and Ors. v. Sain Das and Ors. A.I.R. 1931 Lahore, 373; (2) Mithoobhai v. Omprakash A.I.R. 1951, Nagpura, 389; (3) Mst. Charan Kaur v. Hari Singh and Anr. ; (4) M. P. Philip v. Chinna Subba Iyer Annaswamy Iyer A.I.R. 1956 Tra. C. 57; (5) Balvant Yadneshwar v. Srinivas Appaji Kulkarnii A.I.R. 1959 Mysore 244; (6) Roopchand v. Punamchand ; and (7) Kanakayya v. Narasinmhulu and Ors. I.L.R. 19, Madras page 38. All these decisions follow Watson v. Gray (supra) which we have discussed earlier and it is not necessary to repeat what we have said in respect thereto. In Kanakayya's case (supra) Subramania Ayyar J. did refer to Brookes' care and was inclined to take that view but did not do so on the ground that if the decision in Watson's case was followed, there was less likely-hood of disputes amongst joint holders of the party wall. Inspite of taking such a view such disputes have not ended and it is difficult, with respect, to accept, the said reasoning.
13. There is another angle from which the question of granting relief of injunction has to be considered. This is on the assumption that there is an ouster of the plaintiff in exercise of his right as a co-owner. The decision in Shivputrappa's case (supra) lays down that a co-owner who raises a portion of the common wall without the consent of another is entitled to come to the court and ask for an injunction. Granting the relief of injunction is discretionary; the discretion has to be judicial one. Section 54 of the Specific Relief Act, so far relevant, provides that subject to the other provisions contained in or referred to by, the Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. It further provides that if the defendant threatens to invade the plaintiff's right to, or enjoyment of property, the court may grant a perpetual injunction in the following cases, namely, (a) where the defendant is trustee of the property of the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that pecuniary compensation would not afford adequate relief; (d) where it is probable that pecuniary compensation cannot be got for the invasion; (e) where the injunction is necessary to prevent a multiplicity of judicial proceedings. Illustration (n) given to the section provides that A, B and C are members of ah undivided Hindu family. A cuts timber growing on the family property, and threatens to destroy part of the family house and to sell some of the family utensils. B and C may sue for an injunction to restrain him. These provisions give discretion to the court to grant a perpectual injunction. It provides a guide line for the exercise of judicial discretion. Section 55 of the Specific Relief Act provides that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. This section provides for mandatory injunction. It is well-settled law that a mandatory injunction is granted upon the same principles and subject to the same conditions as a perpetual injunction. Section 56 of the Specific Relief Act, provides cases wherein an injunction cannot be grated. The aforesaid provisions give discretion to the court to grant or not to grant an injunction and provide a guide line to the court for exercising its discretion. Similar provisions are to be found in the Specific Relief Act of 1963 and the relevant sections are Sections 38, 39 and 41. The court may grant an injunction if on consideration of the facts of the case, the court thinks that the remedy is necessary in order to prevent an injury. In a case of raising of joint wall without the consent of the co-owner, the co-owner who is aggrieved has got three remedies viz., to ask for (1) joint possession or (2) damages or (3) injunction. Injunction is not ordinarily granted when the grievance can be otherwise compensated. The right of a co-owner in respect of the joint property should be kept separate and distinct from the question as to what relief should be granted to the co-owner whose right in respect of the property is invaded by other co-owner either by ouster or raising injurious construction thereon. In Maniram Peerchand Marwadi and Anr. v. Tithu Ramjl Patil Pande A.I.R. 1923 Bombay 371, the court came to the conclusion that the wall in dispute was a common wall and inspite of that the court refused to grant a relief of mandatory injunction on the ground that the encroachment was very small. This decision makes it clear that the co-owner whose right of enjoyment is invaded is not ipso facto by reason of invasion entitled to an order of an injunction. Granting of injunction would depend upon various circumstances. The granting of relief of injunction vary with the facts of the case. The Division Bench of the Bombay High Court in Lalji Dayal v. Vishvanath Prabhuram Vaidya 31 B.L.R. 126, cited with approval the following passage from Rewa v. Brijvalabh 6 B.L.R. 41:
Now it is well established as rule by which courts are guided in reference to the granting of mandatory injunction that though it is within the power of a court to grant a mandatory injunction even if the building complained of has been completed, still the court is reluctant to make an order for the removal of a building already finished at some considerable cost and trouble unless it be clear that material damage would otherwise ensue. It is by reference to this rule that the point before us should be decided; and we are under the impression that these considerations were not closely present in the minds of the lower Courts when they dealt with this part of the case....
Similar view has been taken by the Full Bench of the Allahabad High Court in Chhedi Lal and Anr. v. Chhotey Lal : AIR1951All199 .
14. Then we come to the facts of our case. There is no dispute that the wall on the first floor is a joint wall. It was erected by the plaintiff or his predecessors. The plaintiff once claimed exclusive ownership in respect of this wall and thus he had ousted the defendant from exercising his right as co-owner. Before erecting the present additional wall the defendant had asked the plaintiff to permit him to raise the present structure. The plaintiff refused the said permission on the ground that the on the first floor was of his exclusive ownership and the defendant had no right or interest therein. It is thus apparently clear that it is the plaintiff who unreasonably withheld the permission for the erection or additional structure, by claiming exclusive ownership of himself in respect of the wall on the first floor which he now admits to be the common wall. The consequence is that it is the plaintiff who ousted the defendant from making a reasonable use of the common wall. Such a plaintiff is not entitled to relief of injunction. It must be noted that the defendant admits the co-ownership of the additional wall he has constructed on the common wall and thus he does not exclude the plaintiff from the use thereof. It is not the case of the plaintiff that by raising of additional construction his property is damaged or that there is a damage to the common wall. There is no complaint about any nuisance or inconvenience caused by the erection of this additional structure. Taking into consideration comparative hardship, the balance of convenience is in favour of the defendant because the defendant will be required to pull down the additional wall and this would result in preventing him from raising any construction to meet his requirements. The plaintiff would not suffer any damage as there is no injury to the wall or to his property. He does not suffer any inconvenience. It is thus clear that the plaintiff is not entitled to a relief by way of mandatory injunction.
15. It was argued by Mr. Shah that the lower Courts exercised discretion in granting the injunction and this Court should not interfere with that discretion. There are two reasons why we interfere with discretion exercised by the courts below. The first is that the lower courts granted the decree of injunction on the basis of Shivputrappa's case (supra) which we have shown does not lay down the correct law; the second reason is that the lower Court did not at all consider the question whether granting of a mandatory injunction was called for in the circumstances of this case. The defendant had admitted that the additional wall which he has raised is a common property of the plaintiff and the defendant and, therefore, no relief on that score need be given. No relief by way of damages is claimed by the plaintiff. No amendment on that score is asked for even though the opportunity was given and, therefore, it is not necessary for us to consider the question of granting relief ordering payment of damages to the plaintiff. The consequence is that the decree passed by the lower Appellate Court confirming the decree passed by the trial Court ordering the defendant to pull down the raised portion of the disputed wall so as to bring it to its original height cannot be sustained and, therefore, the same is set aside.
16. The suit of the plaintiff in respect of the mandatory injunction in respect of the disputed wall is dismissed and there shall be no order as to costs throughout. Appeal allowed.