L.N. Chhangani, J.
1. This is a defendant's second appeal against the judgment and decree of the Civil Judge, Sirohi, dated 31st August, 1964, affirming the decree of the Munsif, Abu Road, dated 3/3/1964, decreeing the plaintiff's suit for partition of a joint party wall and injunction.
2. The relevant facts are these. The plaintiff respondent Roopchand, now dead, and represented by the present respondents Nos. 1 to 5 his sons and daughters, was the brother of the defendant-appellant Poonamchand. The two brothers owned houses adjacent to each other in village Rohida, separated by a common party wall. In the Samvat year 2009 the plantiff Roopchand dismantled his house and started rebuilding it and in doing so, he raised the height of the party wall, set up some new 'aalas' and almirahs and put in a 'Chimni'. Alleging his exclusive ownership over the party wall the present defendant filed a suit against Roopchand claiming mandatory injunction directing Roopchand to demolish the party-wall in so far he had heighten it beyond the second storey and directing to close the 'aalas and almirahs and to restore it to the condition in which it stood before. The plantiff also claimed a perpetual injunction restraining the defendant from raising the height of this party wall without his constent in future. The litigation between the parties ended by a decision of the High Court dated 27th July, 1961' copy of which is Ex. 7. It was held by this Court (1) that the wall which is the bone of contention between the parties was not exclusive of the plaintiff but was the joint wall of the parties, (2) 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 an un-authorised 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.' This Court granted a mandatory injunction directing Roopchand to remove that portion of the Wall in dispute which he had built in the third storey and which is beyond the height of 2' from the terrace there and also granted a perpetual injunction restraining him from building on the common wall without the consent of the plaintiff The Court also maintained the decree for the removal of the chiminey' and the readjustment of the balcony. Subsequetly the plaintiff-respondent Roopchand filed a suit for partition of the party wall, and claimed the following reliefs:
(1) The wall be partitioned by metes and bounds and exclusive possession of the parties over the wall be demarcated.
(2) In the alternative, the plaintiff prayed for a perpetual injunction restraining the defendant from obstructing the plaintiff from making the construction over the wall and taking support over it.
(3) Any other relief beneficial to the plaintiff be granted.
The plaintiff averred that the defendant has been obstructing him from making construction over the land mentioned in his part by restraining him from raising the wall and has not been permitting him to raise the wall and thus he was unable to make use of it.
3. The suit was opposed by the defendant. He claimed that the party wall was his exclusive property. He also pleaded that, the suit was barred on the principles of res-judicata in view of the judgment in the former suit between the same parties. It was also pleaded that the joint party wall could not be partitioned.
4. The trial court framed the following six issues:
(1) Whether the plaintiff is a joint owner of the land on which the party wall between the house of the plaintiff and the defendant 33 ft. long and 13' wide is built? (P)
(2) Whether the admission made by the defendant in case No. 32/53 in the court of Civil Judge, Sirohi cannot be used against him in this suit? (D)
(3) Whether the plaintiff is entitled to claim partition of the joint wall?(P)
(4) If not, whether the plaintiff is entitled to perpetual injunction restraining the defendant from obstructing the plaintiff in constructing on the joint wall and getting support of the joint wall?
(5) Whether the plaintiff's suit is barred by principles of resjudicata by decision in C. Section No. 32/1953 by the High Court in second appeal No. 236/59?
(6) What relief?
The trial Court passed a decree dividing the wall longitudinally into two strips of equal width and declaring the parties to be the exclusive owners of the strips towards their side. The trial court made it clear that the rights of easement accuring to the parties under Section 13 of the Indian Easemant Act would not be affected by the partition of the wall and that they would be entitled to exercise those rights without any kind of obstruction. It was also directed to make additions and alterations on the portion of the wall allotted to them.
5. The defendant filed an appeal which was dismissed by the Civil Judge, Sirohi. The defenda. It has filed the present second appeal.
6. Roopchand died during the pendency of the appeal and his legal representatives Nos. 1 to 5 were brought on record.
7. I have heard Mr. Section K. Mai Lodha for the appellant and Mr. Section C. Bhandari for the respondent.
8. It was contended by Mr. S.K. Mal Lodha, in the first instance, that the plaintiff-respondent's suit was barred by the principle of res-judicata and that the lower appellate court decided the controversy against the defendant appellant without applying its mind and discussing the matter. The defendant's case as contained in paragraph 5 of the written statement is that the plaintiffs case being against the points decided in earlier suit No. 2 of 1955, is barred on the principle of res-judicata. In considering the controversy, it must be pointed out that in the earlier litigation the only controversy between the parties related to the manner of the use of the joint wall. There was no controversy whether the joint wall can be partitioned and should be partitioned nor such a controversy could have been agitated in that litigation. There are further observations in the judgment of this Court clearly indicating the decision to rest upon the absence of the partition of the common wall. At page 1207 of the case Roopchand v. Poonam Chand ILR (1961) 11 Raj. 1203 while noticing Ganpat Rai v. Sain Das AIR 1931 Lah. 373, the Court observed
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 neighboring owners,
and while doing so, the learned Judge added the following important remarks.
in the absence, if I may respectfully add, of any partition of the common wall.
Again, at page 1208, the learned Judge observed:
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 longtidunal strip of the entire wall each on their respective sides.
In the face of these clear observations envisaging the possibility of partition, it is difficult to hold that the issue relating to the partition of the wall was actually or constructively in controversy in the earlier litigation and that the principle of res-judicata can be attrzcted in the present case. The learned Counsel, however, emphasised the observations in the earlier litigation as also in other cases relating to the use of 'joint party wall' that the parties have to be treated tenants-in-common of the entire wall and that the wall could not be treated as well as divided longitudinally into two strips and that the parties are entitled to the use of whole width of the top wall and contended that a decree of partition will have the effect of circumventing the decision in the earlier case. This is of course not a plea in the nature of res-judicata and cannot bar the present suit if it is legally open to the plaintiff to circumvent the earlier decision. The submission also does not appear to be correct. The earlier decision of the High Court merely sought to regulate the use of the wall so long as it continues to be joint. The perpetual injunction restrained Roopchand from making construction on the common wall. Some of the observations of the High Court which have been referred to earlier indicate that the observations relating to the user of the joint wall were to remain effective so long as partition is not effected and would not be binding if a charge in the situation is brought about by the partition of the joint party wall. The contention of the defendant-appellant as to the bar of the suit has no force and is rejected.
9. Next, it was contended that a joint party wall cannot be partitioned and addressed a multiprotonged arguments in this behalf. In the first instance, he relied upon Shantaram Balkrishona v. Waman Gopal Wadekar AIR 1923 Bom. 85 holding that common passage cannot be partitioned and submitted that on an analogous ground a common partition wall should not be also partitioned. Shah Ag. Chief Justice in his judgment dealt with the question as to whether in view of the special rule of Hindu law which admittedly was applicable to the parties, the claim for partition of a common way was maintainable and after quoting passages from text bocks on the Hindu Law, concluded as follows-
These passages make it quite clear that if this is to be treated as 'common way, or road of ingress and egress', it is indivisible.
His Lordship based his decision on the rule of the Hindu Law & considered it unnecessary to decide on the general question whether apart from the rule of Hindu Law partition was permissible in law and, if permissible in law, whether ought to be directed or not. Crump J. while agreeing with Shah Ag. C.J. no-doubt made observations that, 'the suit must of necessity fail whether it be approached on the basis of the rule of the Hindu Law or on the basis of any other system of law which could conceivably be applicable to the present case. The reasoning made in connection with the common way, particularly with reference to the Hindu Law, cannot have bearing upon the present case & I do not think that the principle adopted in Bombay case AIR 1923 Bom. 85 case be applicable to the facts of the present case.
10. Secondly, the counsel for the appellant referred to the Law of Easement by Katiyar as to the meaning of the 'party wall' and cited a number of cases, including Ganpat Rai and Ors. v. Sain Das and Ors. AIR 1931 Lah. 373, Poonamdas v. Shrimati Parbathi AIR 1935 All. 649 & Bahorey Dhinanath v. Indrmani Jatia and Anr. AIR 1964 All. 436 to show that in a joint party wall there is community of interest & unity of possession and the parties are entitled to the use of every partition of the joint property. It was submitted that in these circumstances a partition of the joint wall will affect the rights of the co-owners. The incidents, community of possession and unity of possession are not restricted to joint party wall. They are not ordinarily the incidents of joint properties & these incidents by themselves cannot be permitted to bar partition of the joint property; and will be reasonable and proper to hold that persons holding property in common should ordinarily be entitled to demand partition as of right.
11. Lastly, it was contended that a joint party wall should not be allowed to be partitioned on the ground of inconvenience to the parties and loss of its intrinsic worth on account of partition. The argument is also not acceptable. In the first instance, the defendant did not put forward any such case in the written statement. No controversy was joined. No issue was framed Issue No. 3 is general and does not contemplate any controversy on the ground j of inconvenience to the parties or loss of intrinsic worth of the property. In the absence of any such plea the defendant appellant cannot be allowed to make up a new case. Secondly, I find that the made of partition adopted by the I courts below is perfectly reasonable and does not have the effect of causing any substantial inconvenience to the parties or of adversely affecting the intrinsic worth of the property.
12. As against this, I must point out, thereare two decisions: (1) of the Upper Burmah and (2) another of the Lahore High Court, holding that tenants-in-common jointly owning a party wall are entitled to claim partition. In Hardandas Pladary v. Sunder AIR 1922 U.B. 4, the Judicial Commissioner (1) noticed that in England the view is accepted that, as between tenants-in-common, a partition of the property held in common may be claimed as of right, and cannot be resisted on the ground of inconvenience or even, apparently, of the risk of destruction of the property of the person against whom partition is sought: (2) quoted with approval the case of Govind v. Narayan Das 29 P. R. 1882 observing, 'the defendant may be put to inconvenience but that is incidental to the nature of his interest in the shop; and he cannot reasonably complain because being a joint owner, he is subject to inconveniences from which a sole owner of the property is free, and (3) referred to the principle of cases of partition that 'if a property can be partitioned without destroying the intrinsic value of the whole property, or of the shares, such partition ought to be made. If on the contrary, no partition can be made without destroying the intrinsic value, then a money compensation should be instead of the share which would fall to the plaintiff by partition,' and it is laid down as a leading principle of law in cases of partition that 'where several persons are co-owners or co-shares of immoveable property, partition should be effected between them by giving to each his khare in specie so far as is practicable,' and eventually held that 'the plaintiff appellant appears here to have been clearly entitled to a partition of the party wall and the defendant-appellant's appeal must be dismissed.'
13. A similar view was taken in Mansaram & Anr. v. Nanakchand and Ors. AIR 1937 Lah. 893 Abdul Rashid J. referring to Hardandas Paladray v. Sunder AIR 1922 U.B. 4 & Govind Narain Das 29 P.R. 1882 held that 'a claim by a co-owner to partition of a wall cannot ordinarily be resisted even where the claim causes inconvenience & difficulty of partition. It was further observed that 'in the case of party wall it is impracticable to take an action under S.2 Partition Act.'
14. In this view of the law, I find it difficult to accept the second contention of the counsel for the appellant. No other point was made out.
15. In my opinion, the two courts below took a correct view of law in decreeing the plaintiff's suit for partition and the appellant's counsel has fail-led to make out a case for interference with the decree appealed against.
16. The appeal fails and is dismissed with costs.