R.L. Gupta, J.
1. This D.B. Civil Special Appeal has been preferred by the defendant Poonamchand under Section 18(2) of the Rajasthan High Court Ordinance 1949 against the judgment and decree of the learned Single Judge of this Court dated March 26, 1971.
2. The plaintiff Roopchand, now dead, represented by the present respondents Nos. 1 to 5 filed a suit for partition of the joint party-wall and also for injunction in the court of Munsif Abu, who decreed the suit of the plaintiff on 3.3.1964 and it was confirmed in appeal by the Civil Judge, Sirohi, by his judgment dated 31st August, 1964. The defendant-appellant preferred a second appeal to this Court. That appeal was dismissed with costs by the learned Single Judge and the decree passed by the court below in favour of the respondents was affirmed. Aggrieved by the judgment and decree of the learned Single Judge, this special appeal has been preferred by the defendant-appellant.
3. The relevant fact of the case, in brief, are that Roopchand was the brother of Poonamchand appellant. Poonamchand and Roopchand owned houses adjacant to each other in village Rohira which were separated by a common party-wall. It was averred that in Samvat 2009, Roopchand raised the height of the party-wall alleging his exclusive owner-ship over it. The appellant Poonamchand filed a suit against Roopchand claiming the party wall to be a common wall and prayed for mandatory injunction directing Roopchand to demolish the party-wall to the extent the height was raised beyond the second story & directing the close of the 'alas' & almirahs and to restore it in the condition in which it stood before. The litigation between the parties ended by a decision of this Court dated 27th July, 1961, and it was held by this Court that the wall which is the bone of the contention between the parties was not exclusively of the plaintiff but was the joint wall of the parties and it was not open to the owner of a joint wall 10 raise its height or otherwise deprive the other co-owner of the use of it without the latter's consent whether express or implied & where such an unauthorised interference is established a cause does arise for the grant of a mandatory injunction within the meaning of Section 55 of the Specific Relief Act. The court granted a mandatory injunction directing Roopchand to remove the potion of the wall in dispute which he had built in the third story beyond the height of 2 feet from the terrace therein & also granted a perpetual injunction restraining him from building on the common wall without the consent of the plaintiff. It is said that the execution of that decree is going on and the proceedings are being stayed by this Court in some other appeal.
4. Subsequent to the decree passed in the above mentioned suit, Roopchand filed a suit for partition of the party wall and claimed that the wall be partitioned by metes and bounds & exclusive possession of the parties over the wall be demarcated; in the alternative the perpetual injunction restraining the defendant-appellant from obstructing the plaintiff from making the construction over the wall and taking support over it be granted so as to make use of the wall. This suit was opposed by the appellant. He claimed that the party-wall is his exclusive property and also pleaded that the suit was barred under the principles of res-judicata in view of the judgment in the former suit mentioned above. This suit for partition of the party wall was decreed by the courts below and that decree was affirmed by this Court in second appeal by the learned Single Judge.
5. We have heard the arguments of the learned Counsel for the parties and gone through the record of the case.
6. Two main points have been pressed by the learned Counsel for the appellant before us Firstly, that the party-wall is not divisible, particularly in the present case it is not capable of partition Secondly, the suit for partition of this party-wall was barred by the principle of constructive res-judicata. The learned Counsel for the respondents has contended that there is no prohibition in law which disentitles the respondents to get the party wall partitioned particularly when the defendant is adamant hot to give consent for the use of this party-wall with the result that both the parties would stand deprived of the use of the property for ever beyond the second story and they could not make any construction or improvements above the second story and that the use of the property of the respondents is totally unsafe as any body can cross over the roof of the respondents. There is neither any inconvenience to the parties nor is there any loss of intrinsic value of the party-wall if the partition is effected; rather both the parties would be able to make use of the party-wall which would otherwise not be there. As regards the contention that the suit filed by Roopchand for the partition of the party-wall is barred on the principle of res-judicata, his contention is that no such plea could have been taken in the previous suit by the respondents. Such a plea was neither in the nature of set off nor counter claim. Therefore, there arises no question that the suit is barred by the principle of constructive res-judicata.
7. Mr. Lodha on behalf of the appellant has contended that a party -wall is not capable of partition. He has referred to the law of Easement by Katiyar (page 131) 1975, 8th edition wherein, referring to Watson v. Gray 1880, 14 Ch. D 194, it has been pointed out that the term 'party-wall' may be used in four senses, namely-
(1) a wall of which the two adjoining owners are tenants-in-common;
(2) a wall divided longitudinally into two strip one belonging to each of the neighbours;
(3) a wall which belongs entirely to one of the adjoining owners, but is subject to an easement of right in the other to have it maintained as a dividing wall between the two tenements;
(4) a wall divided longitudinally into two moiety being subject to a easement in favour of the owner of the other moiety.
In the present case the party-wall falls within the first sense. For such a party-wall it is established as a legal accepted notion of the term 'party wall that it is a wall between the properties of two adjoining owners. And that these owners are tenants-in-common in respect of that wall. It must be used by the co-tenants for a common benefit or convenience of both the co-tenants. Hence, if one of them increases or lowers its height it amounts not only to interference with the right to use by the other but also it amounts to an exclusion and the plaintiff is entitled for a mandatory injunction to have the wall brought back to the original position without proof of injury or loss or damage. In this connection the learned Counsel he cited a number of decisions including Paduman Das v. Smt. Parbati : AIR1935All649 , Bahorey Dina Nath v. Indramani : AIR1964All436 , Roopchand v. Poonamchand I.L.R. (1961) XI Raj. 1203, Ganpatrai v. Sain Das A.I.R. 1931 Lah. 373 and Jagnath v. Kachrumal 1970 W.L.N. 442. Mr. Lodha has stressed that in a joint wall there is a community of interest and unity of possession and the parties are entitled to the use of every portion of the joint wall.
8. It is true that it is not open to the owner of a joint wall to raise its height or otherwise deprive the other co-owner of the use of such wall Without the tatter's consent, whether express or implied and where such anunauthorised interference is established a case does arise for the grant of mandatory injunction within the meaning of Section 55 of the Specific Relief Act. But as Mr. Bhandari the Counsel for the respondent, has contended the point in the present case is not one which has been enunciate in these rulings. The point involved for determination in the present case is whether a party-wall is partitionable or not and he has contended that no law has been cited by Mr. Lodha disentitling the plaintiff-respondent J for such a relief. In the previous suit regarding this very wall between the parties which ended by the decision of this Court referred to above in Roopchand v. Poonamchand I.L.R. (1961) XI Raj. 1203, the learned Judge has observed 'As it is hardly correct to treat the co-owners Of a joint wall, in the absence of a partition by metes and bounds (Italics is ours), as owners of a longitudinal strip of the entire wall each had on their respective sides. The law nowhere forbids the partition of a party wall. It is one thing that when the party-wall is common, till it is partitioned, the co-owner will not use it in such a way as to deprive its use to the other co-owner but it in no way suggests that a party-wall is not partitionable in law. Mr. Lodha has cited Shantaram v. Waman A.I.R. 1923 Bom. 85 and on the analogy of that ruling he wants us to hold that the party-wall is not divisible. It was a case of partition of a common way. In that case their Lordships first considered the rule of the Hindu Law & held that under the Rules of the Hindu Law the land reserved as common passage at the time of previous partition between the parties is not divisible subsequently. Their Lordships also held that even under other systems of law a suit for partition of the common way will not lie. The present case is not one of that nature and the above ruling hardly helps Mr. Lodha. On the other hand Mr. Bhandari has relied on Mansaram v. Nanakchand A.I.R. 1934 Lah. 893 and Hardandas Paladroy v. Sander A.I.R. 1922 U.B. 4. It has been held in Mansaram v. Nanakchand A.I.R. 1934 Lah. 893 relying Hardandas Paladroy v. Sunder Sander A.I.R. 1922 U.B. 4 that a claim by a co-sharer to partition cannot ordinarily be resisted even where the claim causes inconvenience and difficulty of partition. In Hardandas Paladroy v. Sunder Sander A.I.R. 1922 U.B. 4 a party-wall and stair-case were partitioned Ordinarily a co-owner is legally entitled to have a partition effected of joint properties. Some sort of inconvenience in the use is always there when a property is enjoyed jointly and after its partition but that inconvenience does not disentitle the plaintiff of his legal right of partition of the joint property. We, therefore, are of the opinion that the law does not forbid the partition of a party-wall as in the present case.
9. Next it was contended by Mr. Lodha that this present party wall should not be allowed to be partitioned on the ground of inconvenience to the parties and loss of intrinsic worth on account of partition. He has relied on Ramaprasada Rao v. Subharamaiah A.I.R. 1958 A.P. 647 and Bholanath v. Radhanath A.I.R. 1924 Cal. 844. The learned Single Judge was right in holding firstly that neither such plea was taken by the appellant in the written statement nor any issue was framed on this point however, he held that the mode of partition adopted by the courts below was perfectly reasonable & did not have the effect of causing any substantial inconvenience to the parties or of adversely affecting the intrinsic worth if the property. Mr. Lodha's arguments is that the wall in question is incapable of physical partition particularly cooking to the use to which it has been put. According to him in the statement of the plaintiff it has come that the slabs on the wall of both the parties are through and through over the whole wall. There are 'alas' and almirahs in this wall also. To us it seems that it hardly makes any difference as the present use of this wall by the parties is hardly effected by the mode of partition that the lower courts have allowed. On partition, certain easements like the above would continue in view of Section 13 of the Easement Act. As regards the contention that there would be loss of intrinsic value, it may be said that when there is any loss of intrinsic value of any joint property it does not disentitle the other party for the partition of his share. In such a case the property might be sold if it is saleable and the price may be distributed among the joint owners or one party may be given share in specie while the other party may be given money compensation, or the like mode may be adopted, but it in no way disentitles the joint owner to claim his share even in such property where its division might cause loss to its intrinsic value In the present case however, it is a case of division of party-wall and there is hardly any question of loss to its intrinsic value. From the mode of partition which has been decreed by the lower courts there is not going to be any material change in its use so far as the first and second storeys of the buildings are concerned. It is only above the second storey that the parties may make construction on half of its strip falling to each other's share ' so that they may be able to use the upper portion of their building above the second storey. It would rather be convenient to the parties to use their apartments which is now not possible as the appellant is adamant not to give any consent for using the party-wall for support etc. to the respondents. We, therefore, find it difficult to accept this contention also of the learned Counsel for the appellant.
10. The second contention of Mr. Lodha is that the present suit for partition of the party-wall was barred by the principle of constructive res-judicata. As pointed above, previous to this present suit, a suit was filed by Poonam Chand appellant against Roop chand for mandatory injunction directing Roopchand to demolish the party-wall so far he had raised it beyond the second storey. This very partition wall was raised by Roop chand beyond the second storey. That suit was however decreed in favour of the appellants and the court directed Roop chand to remove the portion of the wall in dispute which he built in the third storey beyond the height of 2 feet from the terrace therein. It is contended by Mr. Lodha that it was open to Roopchand in that suit, to have raised the plead hat he was entitled to partition of this wall as to the half share and therefore the present suit is barred by the principle of constructive res-judicata. This suit has been filed with a view to circumvent that decree passed in the previous suit. It may, however, be said that if it is open to the respondents in law to do so, they are entitled to that remedy. Mr. Bhandari has contended that such a plea for partition could not have been taken in that previous suit as it was neither a case of set off nor of any counter claim as it was a joint wall and the parties were tenants-in-common, either party was not entitled to make any construction over it without the consent of the other as to deprive its use to the other party. In that position of law that suit was decreed but that decree nowhere forbids the either part, or debars to bring a suit for partition if they are so entitled under the law. The final decision of that case given by this Court is reported in Roopchand v. Poonam Chand I.L.R. (1961) XI Raj. 1203, and it has been observed that '...it is hardly correct to treat the co-owner of a joint wall, in the absence of partition by meets and bounds, as owners of a longitudinal strip of the entire wail each on their respective sides.' In this judgment also an indication is there that a party-wall can be partitioned by metes and bounds; unless that is done, one of the co-owners cannot exclusively use the joint wall. To get a party-wail partitioned is quite a separate relief and such a relief by no stretch of imagination could be sought in that previous suit. It is therefore, misconceived to say that the relief that is claimed in the present suit could be sought in the previous suit. It is difficult to hold that the issue relating to the partition of the wall was directly or constructively in controversy in the earlier suit. The principle of constructive res judicata, therefore, cannot be attracted in the present case. We find it difficult to accept this contention of the learned Counsel for the appellant that the present suit was barred by principles of res judicata.
11. No case has been made out for interference with the judgment of the learned Single Judge of this Court.
12. We find no force in this appeal. It is accordingly dismissed with costs.