GULABCHAND GAPPALAL SARAWGI Vs. MANIKCHAND GULABCHAND SARAWGI

JUDGEMENT

(1.) This is a second appeal under Section 325 of the Zabta Diwani, Gwalior, relating to three disputes between two neighbours whose properties are adjacent to each others, separated by a common wall. The suit was in respect of three items : (1) a portion of the common wall was raised by the defendant so that a pator was converted into a room, (2) the defendant constructed eaves on the common wall overhanging on the plaintiff's premises and, (3) the defendant opened a ventilator and three windows which overlooked the plaintiff's house. The suit was resisted by the defendant on all counts. It will be convenient to deal separately with the three items in dispute.

(2.) The plaintiff claimed the wall to be a joint property of the parties and the trial Judge found in his favour. The first appellate court also found that the common wall was a joint property, but it held that the raised portion of the wall belonged to the defendant only. In his appeal the plaintiff claims the raised portion of the wall also to be the joint property. The law relating to rights in a party wall is settled and may be stated thus : (1) Each co-owner can reasonably use it, without interfering with the enjoyment of the wall by the other, but he must not do anything which will damage or weaken the wall, (2) if one co-owner builds a new piece of wall on the top of the party wall, either with the consent or with the acquiesce ence of the other co-owner, the raised portion of the wall assumes the same character as the original party wall, (3) if one co-owner raises the wall without the consent or acquiescence of the other co-owner he makes himself liable to an action for an injunction, (4) where a party wall is reconstructed by one co-owner at bis exclusive expense it retains the original character of a party wall and he cannot ask for an injunction to restrain the other co-owner from claiming ownership in it. See Shyamlal v. Motiram, 1953 Madh BLJ 375, Imambhai Kamrudin v. Rahimbhai Usmanbhai, AIR 1925 Bom 373 and Shivputrappa Parappa v. Shivrudrappa Kalappa, AIR 1926 Bom 387. In the leading case of Watson v. Gray, (1880) 14 Ch. D. 192, it is laid down that "if one of the two tenants in common of a party wall excludes the other from the use of it by placing an obstruction to it, the only remedy of the excluded tenant is to remove the obstruction". In this suit there is no prayer for demolition of the wall, nor was an injunction claimed at the time when the defendant started raising it.

(3.) It is true that in this case the defendant did not approach the plaintiff for his consent to raise the party wall yet it cannot be said that he should be placed at a more disadvantageous position than if he had given such a consent. I, therefore hold that the raised portion of the wall is also a joint property of both the parties and the plaintiff's appeal to this extent must be allowed.