I.N. Modi, J.
1. This is a defendant's second appeal in a suit for injunction.
2. The dispute between the parties who are brothers relates to a joint wall situate between their respective houses. The house of the plaintiff stands to the east to that of the defendant. The case of the plaintiff was that this wall was his exclusive property, and that while he was at Bombay, the defendant had dismantled his house and started re-building it, and in doing so he had put in a chimney for the remission of smoke in his kitchen and set up some new 'Alas' and almirahs (the number whereof, incidentally, was not mentioned in the plaint) and further that he was raising the height of this wall so as to build a third storey on it. The case of the plaintiff further was that as soon as he was informed of what the defendant was doing, he hastened to his village from Bombay and raised a strong protest with the defendant but without any avail. A passing reference may as well be made to one more fact, and that is that, according to the plaintiff, the defendant was building a balcony in front of his house and he had built it so as to project beyond the half of the width of the party-wall.
It may at once be stated that the trial court has ordered the removal of the chimney and also the removal of the balcony if and in so far as it projects beyond the half of the width of the party-wall and there is no dispute in this appeal about these. To resume the narrative of facts, the plaintiff later on amended his plaint and claimed in the alternative that even if the wall in question was established to be joint between the parties, he is entitled to claim an injunction directing the defendant to demolish the party-wall in so far as he had heightened it beyond the second storey and further that an injunction should also issue' against him directing him to close down the Alas and the almirahs which he had built in the wall in question and to restore it to the condition in which it stood before. The plaintiff also claimed a perpetual injunction restraining the defendant from raising the height of this party-wall without his consent in future.
3. The defendant resisted the suit. His case was that the wall in question was not the exclucive property of the plaintiff but was the joint wail of the parties, and that the former was within his rights in having dealt with the wall as he did. It was also contended that the defendant had a customary right to use the party-wall to build a third storey of his house.
4. Both courts below have held that the wall which is the bone of contention between the parties was not the exclusive property of the plaintiff but was the joint wall of the parties, and this finding must be accepted as correct in this second appeal. There is also a concurrent finding that the defendant has failed to establish the custom on which he relied, and this finding has not been seriously challenged before me nor indeed it could be. Now so far as the raising of the wall and the opening of the Alas and almirahs by the defendant is concerned, the trial court held that this was entirely harmless and had been made with the implied consent of the plaintiff, and in that view of the matter, it dismissed the suit so far as this part of the case was concerned. I have already stated above that the plaintiff's case as respects the removal of the chimney was accepted by the trial court and so also the readjustment of the balcony in so far as it encroached upon more than half the portion of the common wall, and these matters are no longer in controversy in this appeal.
On appeal by the plaintiff, the learned District Judge, Pali, held that the defendant was not authorised in law to raise the height of the party-wall without the consent of the plaintiff, and that likewise he had no right to open new Alas and Almirahs in this wall beyond those which were already in existence before the defendant started constructing the house and to this extent allowed the appeal. The learned Judge therefore issued a mandatory injunction directing the defendant to demolish the wall on the third storey beyond two feet from the terrace and to close down the new Alas and almirahs in addition to the relief which had already been granted to the plaintiff by the trial court.
The learned Judge has also ordered the closure of a bath-room and certain apertures made in the party-wall. It is admitted before me on behalf of the plaintiff respondent that the mention of the bath-room in the decree passed by the learned Judge is nothing but a mistake, and it is also not known to what precise apertures the learned Judge was referring when he ordered their closure in the decree passed by him; but it is unnecessary to dwell on this point at any length in the view I have formed of the case.
5. The defendant has now come up in second appeal to this Court.
6. As already stated, there is a concurrent finding of the two courts below that the party-wall with which we are concerned in this case is the joint wall of the parties. It is strenuously contended on behalf of the defendant that, that being so, he was within his rights in raising the height of the wall beyond the second storey (that is beyond which limit it had existed formerly) and, therefore, there could be no objection to his making use of this wall in placing his pattis etc., for such construction as he liked to make on the third storey. The main point made by learned counsel in this connection was that in acting in the manner in which the defendant did, he made no more than a reasonable use of the wail. The principal question for determination which, therefore, arises in this appeal is how far the contention raised by learned counsel for the defendant in this connection is correct. There is a body of case law relating to the use of a party-wall to which it would be necessary to refer at this stage.
7. The leading case on this subject seems to be Watson v. Gray, (1880) 14 Ch D 192. It was held in this case that if one of the two tenants-in-common of a party-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. Reliance was placed in this case on Cubitt v. Porter, (1S28) 8 B and C 257 at p. 265 wherein it was laid down that where one tenant in common had heightened the wall, then the remedy of the other party was to remove it.
8. A case analogous to the one I have before me arose in Kanakayya v. Narasimhulu, ILR 19 Mad 38. In that case one of the two tenants-in-common of a party-wall had raised its height with a view to building a superstructure on his own tenement. The other tenant-in-common who had not consented to the alteration in the wall, and let it be noted, who had suffered no inconvenience therefrom, sued to enforce the removal of the newly erected portion of the wall. It was held that the plaintiff was entitled to the relief sought by him. The following observations made by Parker, J. in this case are noteworthy:
'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.'
In this view of the matter, the learned Judge felt persuaded to give a decree to the plaintiff for removing the newly raised portion of the party-wall. The other learned Judge, Subramania Ayyar, J. seemed, to start with, to take a different view; but on further consideration, he expressed himself in favour of the view taken in Watson v. Gray, (1828) 8 B and C 257 (supra), on the ground that that would be the simpler view which would compel such of the owners of the party-walls as were desirous of adding to or otherwise materially interfering with, the common property to obtain beforehand the consent of the others interested in it to the change being effected, and, consequently, a view which would be less likely to lead to dispute among joint holders of party-walls.
9. The two cases cited above were followed in Shivputrappa v. Shivrudrappa, AIR 1926 Bom 387 and it was laid down 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.'
10. In Basant Singh v. Shhibba Mal, 107 Ind Cas 481 (Lab) it was held that it was settled law that one co-owner of a party-wall was not entitled to raise its height without the consent or acquiescence of the others, and if he does so, he makes himself liable to an action for injunction or damages.
11. Then in Ganpat Rai v. Sain Das, AIR 1931 Lah 373 which was also a case wherein the defendants had raised the height of the party-wall with a view to building a superstructure on their tenement but they had done it without the permission of the plaintiffs, it was held that the facts warranted the finding that the plaintiffs had been ousted by the defendants from the possession of the common wall and were entitled to remove the obstruction. It is remarkable that, in this case, the defendants had not occupied the whole of the width of the top of the common wall but had confined their building operations to that moiety of the wall which was on the side of their own house leaving the other moiety to the plaintiffs, and on this score it was contended that the plaintiffs could have no cause of action.
The plea was repelled on the ground that the parties were tenants-in-common of the entire wall and that the same could not be treated as a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners (in the absence, if I may respectfully add, of any partition of the common-wall), and, therefore, the plaintiffs were entitled to the use of the whole width of the ton of the wall subject to a similar right of the defendants, and, therefore, the construction of the new wall on half the width amounted to an ouster in so far as the width occupied by the defendants was concerned.
12. Again in Paduman Das v. Shrimati Parbati, AIR 1935 All 649, it was held that:
'Co-ownership implies that each co-owner should have a reasonable user of the thing owned in common and so long as each co-owner uses the wall reasonably without interefering with the enjoyment of that wall by the other party, or without doing anything which would weaken, damage or increase or diminish the wall enjoyed ia common, he is entitled to do what he likes.'
13. Again, in Mithoobhai v. Omprakash, AIR 1951 Nag 389, it was held that one of two co-sharers in a party-wall cannot build upon that wall so as to make exclusive use of it and that since a co-owner in such a case has a right himself to remove the raised portion of the party-wall he is, a fortiori, entitled to come to the court and ask for a mandatory injunction in order to get the raised portion removed.
14. The same view has been taken in Durga Parshad v. Jheetar Mal, AIR 1954 Punj 125 and M. P. Philip v. C. S. Iyer, AIR 1956 Trav-Co 57, wherein the plaintiffs were held entitled to a mandatory injunction so that the unauthorised construction over the wall was removed and the position thereof was restored to the situation in which it existed prior to such unauthorised construction.
15. On the other hand, learned counsel for the defendant appellant places his reliance on Daudkhan v. Chandulal, AIR 1923 Bom 370, Tilokchand v. Dhundiraj, AIR 1957 Nag 2 and Chhedi Lal v. Chhotey Lal, AIR 1951 All 199 (FB).
16. So far as the first of these cases is concerned, it was a case of a defendant building beyond the middle line of the wall and the plaintiff prayed for a mandatory injunction to remove the encroachment. It was held that the encroachment was a trivial one, and further that the position of the plaintiff had really improved in so far as he thereafter would get greater support for his own mud-portion of the wall by the defendant's brick wall. In these circumstances, the learned Judges declined to order the defendant to pull down the wall, as was stated, on account of an encroachment of a few inches only, and instead gave a declaration that that portion of the defendants's brick building which went beyond the middle line would be treated as on the plaintiffs side of the party wall.
With great respect, the law laid down in this case should be treated as confined to the facts of this particular case and might perhaps be justified because of a very trivial nature of the encroachment made. Justifiable criticism against this judgment has however been made in some of the cases retired above, as it is hardly correct to treat the co-owners of a joint wall, in the absence of a partition by metes and bounds, as owners of a longitudinal strip of the entire wall each on their respective sides.
17. Coming next to the second case relied on by learned counsel, (AIR 1957 Nag 2 (supra)), this again was a very peculiar case wherein the defendant in building on his land had encroached upon a space of three inches from his wall which belonged to the plaintiff. The trial court ordered the removal of the encroachment and directed that the defendant would be free to build while leaving a space of three inches between the two walls. On appeal, the High Court held that undoubtedly there was an encroachment on that much of the space, but further observed that if the defendant pulled down the present wall and built another leaving a space of three inches, that space would not be of any use to the plaintiff; while, on the other hand, by the wall being allowed to remain in the condition in which it was, the plaintiff's wall would get support from the defendant's newly built wall.
It was in these peculiar circumstances that the learned Judges granted compensation in money to the plaintiff for the injury done by the unauthorised construction. It clearly seems to me that this case bears no parallel to that which I have before me.
18. This brings me to the last case, AIR 1951 All 199 (FB) (Supra) on which learned counsel places great reliance. It was laid down in this case that while a co-sharer was entitled to object to another co-sharer exculsively appropriating land to himself to the detriment of other co-sharer, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case, and that the right to the relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. It was further laid down that each case must be decided on its own peculiar facts and no hard and fast rule can be laid down. With much of what has been held in this case, I am in respectful agreement, if I may say so; but, in my judgment, the case has not much relevance to decide the controversy which arises before me. This case has nothing to do with the decision of the rights of co-owners as to a party-wall, and I, for one, find it difficult to agree that it can be held as a matter of law that identical considerations would govern encroachment on a party-wall as on joint or common land.
19. As a result of the foregoing discussion, it, seems to me to be established on overwhelming preponderance of judicial opinion 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 within the meaning of Section 55 of the Specific Relief Act.
20. Applying the aforesaid principle to the facts and circumstances of the present case, there is hardly any doubt that the defendant has raised the height of the common wall in so far as he has taken it beyond the top of the second storey, and he has built his wall on the entire width of the top of the joint wall. This he had no right to do except with the consent, express or implied, of the plaintiff. So far as express consent is concerned, that is nobody's case. The ' defendant, however, contends that although the plaintiff was absent when he had started the re-building of his house, the latter had come from Bombay back home, when he was raising the height of the wall beyond the second storey and was intending to put up some kind of construction on it. His case is that the plaintiff's objection was only to the erection of the chimney for the emission of smoke from his kitchen but not otherwise.
The trial court accepted that story, but on appeal, the learned District Judge has emphatically disagreed with it, and in this second appeal, I am not prepared to take a different view on what is essentially a question of fact. The position, therefore, must remain that the defendant's theory of implied consent or acquiescence has not been established on the facts and circumstances of the case. That being so, there is no escape from the position that the action of the defendant in so far as he, by his unilateral conduct, raised the height of the wall, was unauthorised. And the law as established by authorities with regard to such action seems clearly to be that the plaintiff would have been well within his rights to remove this raised portion; and if that be so, I find it difficult to hold that the plaintiff is not entitled to ask for a mandatory injunction for the removal of I this wall in so far as it has been raised.
21. It may also be noted in this connection that the defendant himself has advanced the case in his written statement that the raised wall was his and that the plaintiff can make use of it only on paying his share of its cost. This clearly means a deprivation by the defendant of the plaintiff to make reasonable use of the entire width of the top of the wall as it existed before its height was increased to which he was undoubtedly entitled. Such deprivation, in my opinion, is sufficient to entitle the plaintiff to the remedy of a mandatory injunction. I hold accordingly.
22. It must be pointed out, however, that the learned District Judge has allowed this wall to remain to the extent of two feet in height from the terrace in the third storey and there is no appeal before me against this. In these circumstances, my conclusion is that the decree of the learned District Judge, in so far as this aspect of the case is concerned, calls for no interference.
23. This brings me to the only other part of the case which is in controversy between the parties, and which relates to the removal of the Alas and Almirahs some of which are said to have been old but yet others are said to have I been added or newly opened in this wall. The learned District Judge has ordered the removal of the new Alas and almirahs. In this conclusion, I am entirely unable to agree For one thing, this seems to me to be, according to well accepted notions of using a party-wall, a very reasonable mode of using it, which cannot cause any harm or injury to any party whatever. For another, the plaintiff himself when he came into the witness box conceded that if the court came to the conclusion that the wall was a joint one, there would be no objection to the opening of any Alas or almirahs on the other side of the party-wall. Besides, the plaintiff himself has admitted that there are alas and almirahs on his side of the joint wall, and it is not his case that they were built with the prior consent of tne defendant or that he had made any payment to the latter for opening them.
As I look at the matter, no such consent or payment for making such use of the wall, was or should be at all necessary. In this view of the matter, I have no hesitation in coming to the conclusion that the decree of the learned District Judge in so far as he ordered the removal of the so-called new Alas and almirahs is concerned cannot be sustained. I should also like to make i! clear on this aspect of the case that the decree of the learned District Judge in so far as it ordered the closure of certain apertures is highly vague. In fact, learned counsel for the plaintiff respondent concedes before me that the defendant has opened no apertures, and, therefore, the learned Judge was entirely in error in introducing into his decree any direction about them. So far as the mention of the bath-room in the decree of the learned District Judge is concerned, again there is no dispute whatsoever between the parties about any bath-room, and therefore that part of the learned Judge's decree almost must be set aside. I may make it clear that the decree of the trial court as respects the removal of the chimney in the joint wall and the adjustment of the balcony as ordered by the trial court remains intact.
24. In the result, I partly allow this appeal, modify the judgment and decree of the learned District Judge and grant a mandatory injunction directing the defendant to remove that portion of the wall in dispute which he has built in his third storey and which is beyond the height of two feet from the terrace therein and also grant a perpetual injunction restraining him from building on the common walls without the consent of the plaintiff. The decree passed by the trial court with respect to the chimney and the balcony is maintained intact. The rest of the plaintiff's suit is dismissed. The defendant will have two months from today to carry out the demolition. As to costs, I think it fit to observe that this seems to be a somewhat insensate dispute between two brothers who ought to have behaved better but have not, and as the parties have partly succeeded and partly failed. I would leave them to bear their own costs throughout.