BOGGAVARAPU VENKATACHALAMAIAH Vs. KANUMARLA POODI KONDIAH

JUDGEMENT

(1.) The question raised in this appeal is one of general importance and is likely to arise frequently. I am told by Sri C. Poornaiah, the learned Counsel for the respondent and this is not disputed, by the learned Counsel for the appellant that a similar question was decided by Parthasarathi, J.., and leave was also granted and a Letters Patent Appeal is pending against the decision of the learned judge in Second Appeal No.697 of 1964, dated 24th September, 1968. The findings in this case are, that the plaintiff raised the height of a joint wall, and constructed a verandah, but no substantial damage was caused, to the joint wall. Sri Poornaiah, relies upon a decision of the Madras High Court in Kanakayya v. Narasimhulu. where the view taken by the division Bench of the Madras High Court was that even in the case of a tenant-in-common who had not con sented to the alteration but had not suffered any inconvenience therefrom, would have cause of action for removal of the newly erected portion. Sri P.V.R. Sarma appearing for Sri Venkatarama Sastri, on the other hand relies upon unreportec). decision of Seshachalapathi, J., in Second Appeal No. 803 of 1955, dated 8th April, 1959. As the position of law stands, the decision in Kanakqyya's case, is binding on me. But in view of the fact that a similar question is already pending decision in the Letters Patent Appeal against the judgment of Parthasarathi, J., it is desirable that this appeal also should be posted along with the said Letters Patent Appeal before a Bench so that the point involved may be authoritatively decided.

(2.) The papers will be placed before My Lord the Chief Justice for appropriate orders.

(3.) In pursuance of the above order of the High Court, dated 28th October, 1969 this Second Appeal and Cross-objections came on for hearing before the Division Bench. C.Venkata Rama Sastry and P. V.R. Sarmar for Appellant. C.Poornaiah and M. Venkateswarlu, for Respondent. The Judgment of the Bench was delivered by Krishna Rao, J.-This Second Appeal is filed by the defendant who succeeded in the trial Court but failed in the first appellate Court. The respondent-plaintiff filed a suit O.S. No. 262 of 1963 on the file of the District Munsif, Kavali, for a mandatory injunction directing the defendant to remove the brick wall to the extent to which it was newly raised by him over the portion of the joint wall marked C-2 C-3 in the plaint plan and for other reliefs with which we are not concerned in this appeal. The case of the plaintiff is that the whole house originally belonged to the plaintiff. The plaintiff sold away the northern portion of his house and ultimately it was purchased by the defendant. The dividing wall marked C-1, C-2, C-3, C-4, C-5, C-6 in the plaint plan was regarded by the plaintiff as, well as the purchaser as the joint wall. After the defendant purchased the property, he raised the height of a portion of a joint wall by 9 inches between C-2, C-3 in the plaint plan which is of a length of 11 inches and on one half of the wall lengthwise lying on his side. Having increased the height, he removed the old tiled house (sic) and. replaced it by a Mangalore tiled roof and placed rafters on the newly raised portion of the wall. Even before this construction by the defendant, the plaintiff, having known about the same, issued a telegram to him asking the defendant not to make any construction on the joint wall. The defendant raised the wall only up to half of the thickness of the wall adjoining his house.