GANESH Vs. RAMCHANDRA

JUDGEMENT

(1.) L . By this revision, the applicant plaintiff seeks interference with the order made by the trial Court and affirmed by the lower appellate Court rejecting his application for grant of temporary injunction restraining the defendant from proceeding with the construction of latrine and raising the common wall to the height required for construction of the flush latrine in the upper floor of his house.

(2.) AFTER hearing the learned counsel from both the sides and on going through the material on record and the order impugned, this Court is of the opinion that in view of the statement made by the learned counsel for the non -applicant, defendant no case is made out for interference. It was not disputed that the wall in question was a common wall, to the use of which both the parties were entitled. The defendant non applicant is proceeding with the construction of a flush latrine in the upper of poor of his house. For that purpose, he is required to penetrate angle iron bars in the joining wall. Since the said wall is not of sufficient hight so as to support the construction of the upper floor, the defendant had raised the height of the same and had put holes to the extent of half of the depth of the wall for penetrating the angle iron bars Similarly, he has raised the height of the wall also by raising only half of the width of the same. The Courts below were of the opinion that since undisputedly the wall in question was a common wall, the defendant was entitled to use the same and penetrate iron angle bars and there was nothing in law to prohibit him proceeding from with the construction of his own house by taking support of the common wall and to raise the same for satisfying his need so long as the said wall is not endangered or damaged in any manner.

(3.) THE learned counsel appearing for the non -applicant, however, made a statement that the defendant will raise the entire width of the common wall so as to retain its character of a joint wall and by raising this structure of the common wall the defendant will not claim any right of separate or exclusive ownership on any part of the common wall. The only right which will be available to him will be as a co owner in respect of the common wall i.e. the right to penetrate iron bars etc. for support and enjoyment of the structure on his side of the house.