C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for injunction for restraining the defendant from interfering with the moiety of common wall on his side, intervening the houses of the parties in the third storey and for a mandatory injunction also for demolition of that part of the construction in the defendant's house which had been made to rest on the wall in question.
2. The facts are not in. dispute. There is a common wall between the houses of the plaintiff and the defendant. The width of the wall is 16'. In the third storey the plaintiff raised the width of half the party wall on his side leaving the moiety of the wall on the side of the defendant for the latter's use. The plaintiff then built his third storey by making use of the moiety of the wall on his side. Some time in the year 1954 A. D. the defendant also raised construction in the third storey of his house by fixing some 'patties' etc. in the moiety of the wall on the plaintiff's side. The plaintiff filed the present suit on 27-10-1960 alleging that the defendant was not entitled to use the moiety of the wall on the plaintiff's side as it constituted a violation of the plaintiff's rights.
He prayed for a mandatory injunction for removal of the defendant's patties and slabs on his half side of the joint wall in the third storey and also prayed for issue of a perpetual injunction restraining the defendant from interfering with it in future. The defendant contested the plaintiff's claim on the ground that the plaintiff was not entitled to raise the width of half of the party wall of his side without permission of the defer dant and since he had done so the defer dant was entitled to use the whole widh of the party wall.
3. The learned Civil Judge, Udaipur by his judgment dated 31-1-1963 decreed the plaintiff's suit directing the defendant to remove the 'patties' fixed by him in the wall in question in the third storey, and further restrained him from interfering with the plaintiff's moiety of the party wall in future. Aggrieved by the judgment and decree of the trialCourt the defendant filed appeal in the Court of District Judge, Udaipur, who allowed the appeal set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit. Consequently, the plaintiff has come in second appeal to this Court.
4. The only question for determination in this second appeal is whether the action of the defendant constitutes a violation of the plaintiff's right and whether the plaintiff can ask for a mandatory injunction?
5. It was held in Roopchand v. Poonam Chand, ILR (1961) 11 Raj 1203 = (AIR 1962 Raj 227) that it is not open to a co-owner of a joint wall to raise its height or otherwise deprive the other co-owner of the use of such wall without the latter's consent, whether express or implied, and where such unauthorised interference is established a case does arise for the grant of a mandatory injunction. In the present case the party wall has not been raised in its full width, but the plaintiff has confined himself to that moiety of the wall which is on his side and left the other moiety to the defendant.
Learned counsel for the appellant, therefore, contends that as the plaintiff has not occupied the whole of the width of the common wall in the third storey but has raised its height towards his side only to the extent of half the width of the wall, the defendant has no right to rest his 'patties' on the moiety of the wall on the plaintiff's side and must use the moiety of the wall on the other side for his benefit. To this contention I am unable to accede. This is a case of party wall of which both the plaintiff as well as the defendant are to use the phraseology of English law tenants-in-common.
6. Learned counsel for the appellant relied on Daudkhan Musekhan v. Chandulal Kanhayalal, AIR 1923 Bom 370. The facts of that case were that the defendant while rebuilding his house built beyond the middle line of the party wall, and the plaintiff prayed for a mandatory injunction for removal of the encroachment by the defendant. The learned Judges refused to grant the relief for mandatory injunction on the Tround that the encroachment was not a (sic)rious one, and that part of the wall on the plaintiff's side would be improved by (sic)jtting greater support from the defendant's brick-building. In these circumstances the learned Judges did not think it proper to order the defendant to pull down his wall on account of encroachment of a few inches. However, they observed that if the wall is joint then each party is entitled to act as owner of his own half and he cannot compel the owner of the other half to bear any greater burden that he chooses to placeupon it, so that one joint owner cannot encroach on the other half of the wall in defiance of the other owner's rights.
7. With utmost respect, I find myself unable to subscribe to that view. It would not be correct to say that each of the tenants-in-common of the party wall is owner of the moiety of the wall on his side in absence of a partition by metes and bounds. The party wall in the present case cannot be treated as a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners and both the plaintiff as well as the defendant are, in my opinion, entitled to the use of the whole width of the wall. The construction of a new wall by the plaintiff on half the width of the wall without the permission of the defendant was unwarranted, and the defendant could have asked for pulling it down. But he did not do so and chose to make use of the moiety of the wall constructed by the plaintiff on the third storey.
In these circumstances, the defendant cannot be said to have encroached upon the plaintiff's wall, and the plaintiff is not entitled to get the 'patties' and slabs fixed by the defendant on the party wall in dispute demolished nor is he entitled to get any perpetual injunction in this respect. I am supported in this view by a Bench decision of the Lahore High Court : Ganpat Rai v. Sain Das, AIR 1931 Lah 373.
8. The learned District Judge hasalso non-suited the plaintiff on the ground that the impugned construction by the defendant was made as far back as in the year 1954 A. D., whereas the present suit for demolition of the same was brought in the year 1960 A. D. Thus the petitioner, according to the learned District Judge, was guilty of laches and by his acquiescence he disentitled himself to get the relief for mandatory injunction I concur in this finding of the learned District Judge also and do not see any reason to take a different view.
9. The result is that this appeal has no force, and is hereby dismissed, but in the circumstances of the case I leave the parties to bear their own costs.