C.M. Lodha, J.
1. This is a defendant's second appeal arising out of a suit filed by Lalchand. (who has died during the pendency of this litigation and is now represented by his legal representatives Noratmal and others) in the Court of Sub-Judge. First Class, Beawar on 4-7-1953 praying that the defendant may be restrained from interfering with the southern wall of the plaintiff's stair case on the first floor, and may further be directed by a mandatory injunction to restore the wall to its original condition by making such repairs as may be necessary.
2. There is a staircase between the plaintiff's shop and the defendant's shop situated in Mewari Bazar, Beawar. This stair case was admittedly used by both the parties, for going to the first floor of their respective shops. It appears that a few years before the institution of the suit the plaintiff built a room on the first floor of his shop, and also constructed a stair case, for going from the first floor to the terrace on the second floor, just above the staircase from the ground floor to the first floor. The way to the upper stair case, that is the stair case leading to the terrace on the second floor is through the plaintiff's room. It may be noted that there was a door leading from the lower stair case to the terrace of the defendant's shop. The defendant wanted to fix shutters in this door. This was resisted by the plaintiff and he filed the present suit for getting the defendant restrained from fixing shutters in the door- It1 was also averred in the plaint that the defendant was threatening to break the southern wall of the stair case on the first floor and therefore it was prayed that he may be restrained from interfering with the southern wall of the staircase. The plaintiff's case as set out in the plaint was that both the stair-cases as well as the walls on both the sides on which the steps of the staircases rested exclusively belonged to him and the defendant had only a right to U3e the lower stair-case.
3. The suit was resisted by the defendant mainly on the ground that the lower stair case as well as the upper stair case jointly belonged to the parties and the southern wall of the staircase exclusively belongs to the defendant and the northern wall of the stair case belongs to the plaintiff.
4. After recording the evidence produced by the parties the learned sub-Judge, First Class, Beawar by his judgment and decree dated 1-10-1954 held that the lower stair case belongs to the parties jointly but the upper stair case exclusively belongs to the plaintiff. He also held that the southern wall jointly belonged to the parties and was a common wall. He further held that the defendant was entitled to fix up shutters in the door of his terrace on the first floor on payment of Rs. 30/- as compensation to the plaintiff for making use of the joint southern wall.
5. Aggrieved by the judgment and decree of the trial court the plaintiff filed appeal, which was dismissed by the Additional District Judge of the former State of Ajmer on 10-7-1956. The defendant filed a second appeal to this Court which was registered as S. B. Civil Second Appeal No. 271 of 1956 and this Court by its order dated 1-5-1962 set aside the judgment and decree of the learned Additional District Judge, Ajmer dated 10-7-1956 and remanded the case to the first appellate court for fresh decision. The remand was necessitated on account of the fact that the learned Addl. District Judge, Ajmer had refused to go into the question of ownership of the upper staircase and this Court was of the opinion that in view of the prayer in the plaint, and Issue No. 2, a decision on the question of ownership of the upper staircase ought to have been given.
6. After hearing the learned counsel for the parties again the learned District Judge. Ajmer by his judgment and decree dated 23-9-63 partially allowed the appeal set aside the condition for payment of Rs. 30/- as compensation to the plaintiff but maintained the rest of the decree of the trial court. Consequently, the defendant has again filed this second appeal.
7. The lower stair case has been held to be joint and there is, now no dispute between the parties regarding it. The dispute centres round the ownership regarding the upper staircase, that is, the stair case which was admittedly built by the plaintiff leading from his room on the first floor to his terrace on the second floor. Admittedly there is no construction on the first floor of the defendant's shop and at present there is no occasion for the defendant to use the upper stair case. The necessity for deciding the question whether the upper stair case should be considered as joint or exclusive of the plaintiff has arisen on account of the allegations made by the plaintiff in para No. 7 of the plaint in which it is stated that the defendant is threatening to break, and has actually broken a part of the plaintiff's stair case on the first storey. In the relief Clause, it has been prayed that the defendant may be restrained from using or interfering with the southern wall of the plaintiff's stair case on the first floor, even though there is no specific pleading by either party that the defendant wants to use the upper stair case by making an opening in the southern wall of the stair case. At one stage. I also doubted whether it should be necessary to decide this point in view of the pleadings of the parties which are not specific. But in view of the order of remand by this Court dated 1-5-1962, I have no alternative but to do so.
8. The sole point for decision therefore is, what is the nature of this upper stair case? Both the lower courts have held it to be the exclusive property of the plaintiff on the ground that it was constructed by the plaintiff as far back as in the year 1896 A. D. that is about 50 years before the institution of the suit and the plaintiff has been exclusively using it ever since it was constructed and further that the way to the upper stair case is through the plaintiff's room on the first storey.
9. Learned counsel for the appellant has urged that there is no material on the record in respect of the finding of the lower court that the upper stair case was constructed in or about 1896 A. D. No doubt, the parties have not led evidence on this point but there is a clear averment in para No. 6 of the plaint that this stair case was built more than 50 years ago and in reply to this paragraph the defendant has in the first instance made a general denial but there is no specific denial of the fact that the upper stair case was constructed 50 years ago. The plaintiff's exclusive ownership of the stair case and of the walls on either side of it alleged by the plaintiff in para No. 6 of the plaint have been specifically denied, and the defendant has pleaded that the stair case jointly belonged to the parties and the southern wall on which one side of the stair case rested, exclusively belonged to the defendant, though the ownership of the plaintiff over the northern wall admitted. What is significant is that the fact that the stair case was built 50 years ago, stated in the plaint, was not denied. In this state of pleadings the defendant must be deemed to nave impliedly admitted that the stair case was built by the plaintiff about 50 years before the institution of the suit, and in my view no just exception can be taken to the finding of the first appellate court in this respect.
10. Before I come to the question of ownership of the upper stair case it is necessary to decide one more point closely allied to it, namely, whether the finding of the trial court that the southern wall of the stair case is joint property of the parties is correct? The first appellate court has not given any specific finding on this point, though from the tenor of its judgment, it appears, that it accepted the finding of the trial court in this respect as correct. It is interesting to note that even the trial court has not referred to any evidence in support of its finding that, the southern wall of the upper stair case belongs jointly to the parties and must be treated as a party wall. Probably, he has assumed that the southern wall on the ground floor on which the lower stair case rests is joint and as the height of that wall has been raised, on the first floor, by the plaintiff to rest the steps of the upper stair case, the southern wall of the upper stair case roust also be held to be joint.
11. I have gone through the record and I do not find any evidence to that effect and learned counsel for the respondent had also to concede that there was no evidence on the point. This finding, therefore, stands vitiated. At this stage, it is also necessary to point out that even though the dispute had been raised by the parties regarding the ownership of the northern wall of the upper stair case on the plaintiff's side the trial court failed to record any finding with respect to it.
12. Learned counsel for the respondent asserted that the northern wall of the stair case towards the plaintiff's side must be held to be exclusive of the plaintiff on account of the admission made by the defendant himself in para No. 7 of the written statement. The defendant has stuck to this position even in his deposition as D. W. 4. But it must not be forgotten that while making this admission he has also stated that the southern wall belongs to him. To put in his own words 'Pardi (partition) walls on either side of it (the upper stair case) belong to parties on whichever side they are in possession of a party.' While taking into consideration the alleged admission on the point by the defendant in the written statement as well as in his deposition it must be borne in mind that the admission is a qualified one. What the defendant wants to convey by this admission is that the walls on either side of the stair case must be taken to be by the very nature of things belonging to the party on whose side the partition wall stands though the plaintiff came forward with a case that the walls on either side of the stair case belonged to him. There are admittedly 'Bhakaries' below the lower stair case in the plaintiff's shop as well as in the defendant's shop. The lower stair case has been rightly held to be joint.
As regards the partition walls on either side of it, it may be noted that either party has no use for the partition wall on the other side of the stair case except that the steps of the lower stair case which have been held to be joint rest on it. It is not the case of the plaintiff that he is entitled to use the partition wall of the stair case on the southern side for any other purpose. I am, therefore, inclined to hold that the 'Pardi-wall' standing on either side of the stair case must be held to be exclusive of the party on whose side it stands, even though the steps of the stair case which rest on it are joint. In this view of the matter, I find it difficult to accept the conclusion arrived at by the lower courts in this connection that the southern wall of the stair case on the defendant's side is joint. The plaintiff has undoubtedly raised the height of the southern wall on the first floor in order to rest the steps of the upper stair case on it and the defendant by not raising any objection impliedly permitted him to do so. That however, does net change the nature of ownership of the southern wall on the first floor andmerely because the plaintiff has spent in constructing it, it cannot become the joint property of the parties and must be held to be the exclusive property of the defendant. On the same reasoning the northern wall both on the ground floor as well as on the first floor on which the steps of the lower stair case as well as the upper stair case rest must also be held to be exclusively belonging to the plaintiff.
13. Having decided the question of ownership of the walls on either side of both the stair cases. I come to the main question regarding the ownership of the upper stair case. The lower stair case, as already stated above, has been held to be joint and the plaintiff has not made any grievance of it by filing an appeal-The contention of the learned counsel for the appellant is that the whole of the space over the lower stair case must be considered to be joint and merely because the plaintiff has built the upper stair case for his convenience, it cannot become his exclusive property. His submission is that the principle of adverse possession cannot apply to such a case as there was no occasion for the defendant to make use of the upper stair case as he has not built so far any thing on the first floor, and the terrace of the second floor has not come into existence.
14. Learned counsel for the respondent has, on the other hand, strenuously contended that there has been ouster of the defendant so far as the upper stair case is concerned, and the defendant cannot use the upper stair case by trespassing in the plaintiff's room from which the stair case starts. Learned counsel for both the parties have cited a number of authorities to lend support to their contentions. But all these authorities pertain to a party wall. However, no authority in point has been placed before me.
15. The law seems to be well settled in respect of party wall that one of the co-sharers cannot raise the height of the wall or otherwise interfere with it without the consent of other co-sharers as such an act on the part of one of the co-sharers has been held to be an ouster of the other co-sharers. It has been further held that if there is an interference with the party wall by a co-sharer, the other co-sharer who is ousted has a right to get it restored to its original condition. If, however there is consent of all the co-sharers a party wall can be changed in any way they like. But there is not a single authority brought to my notice in which it has been held that if a change has been made in the party wall and to be more specific, its height has been raised without the express consent of the other co-sharers, who however, do not take any steps to get it pulled down, the other co-sharers would be debarred from making use of the raised portion of the party wall on account of the principles of adverse possession. All the cases of adverse possession cited at the Bar pertain to land or other immovable property, and none of them deals with a situation like the one arising in the case on hand.
16. The fact that there was no objection by the defendant at the time when the plaintiff built the upper stair case for going on the second floor of his shop is apparent lest he or his predecessors would not have remained silent for a period of 50 years, during which it has been in existence. Consequently, the conduct of the defendant or his predecessors can only be explained on the basis of acquiescence or implied consent-I am, therefore, of the opinion that there was implied consent or acquiescence of the defendant in the plaintiff's act of constructing the upper stair case. The objection raised on behalf of the respondents that the defendant cannot commit trespass for the use of the upper stair case by passing through the plaintiff's room from where the upper stair case starts, is also unassailable. But the question still remains whether the plaintiff for all time to come can debar the defendant of the advantage of using the space above the lower stair case which has been held to be joint for going to the second floor over his shop as and when he may construct it? If the view propounded by the learned counsel for the respondent were accepted, the result would be that the party who has built the upper storey first and has been able to construct a stair case either with the express or implied consent of the other party would close down the chances for the other party of reaching the upper floors of the other party by that way. That would be putting a premium on the party in default who has stolen a march over the other party in raising construction on account of circumstances favourable to it. That would not be just and equitable.
In my view, therefore, in such circumstances, since I have held that the southern wall of the upper stair case on the defendant's side exclusively belongs to him it would be open to the defendant as and when he raises construction on the second floor of his shop, to make use of the upper stair case by making a suitable opening in his own wall that is the southern wall of the stair case so as to get on the stair case at a point beyond the room of the plaintiff so as to able to go to the second floor by that stair case. It goes without saying that the defendant would not be entitled to trespass into the plaintiff's room or any other apartment for making use of the stair case. That is the only way in which the facility of using the upper stair case can be extended to the defendant.
17. In these circumstances, I am unable to accept the finding of the courts below that the upper stair case exclusively belongs to the plaintiff and hold that like the lower stair case the upper stair case must also be held to be joint, the use of which shall be made available to the defendant in the way I have indicated above.
18. The net result of the foregoing discussion is that I partly allow this appeal and modify the judgment and decree of the learned District Judge, Aimer to this extent that the southern wall of the upper stair case on the defendant's side belongs exclusively to the defendant and so also the northern wall of the stair case towards the plaintiff's side belongs exclusively to the plaintiff, and that the upper stair case like the lower stair case belongs jointly to the parties and the defendant can make use of the same without trespassing into the plaintiff's room or any other apartment by making a suitable opening in his own wall that is, the southern wall of the stair case.
19. In the circumstances of the case, I leave the parties to bear their own costs throughout.
20. Learned counsel for the respondents prays for leave to appeal to Division Bench- However. I do not consider it a fit case for grant of leave. The prayer is disallowed.