GIAN CHAND JAIN Vs. MISRI DEVI

JUDGEMENT

(1.) The case was argued and I dictated in open Court a judgment on 20.09.2013 dismissing the appeal. I reopened it suo motu referring to a Division Bench ruling of this Court in Sardari Lal Gupta Vs. Siri Krishan Aggarwal, 1984 AIR(P&H) 439 that opening ventilator in a party wall would not be permissible and the English law on party wall cannot be applied in India. I had, therefore, directed both parties to advance arguments afresh.

(2.) The suit was filed by the plaintiff contending that on the eastern wall which was literally the terminal wall falling within his boundary was having three ventilators which were sought to be closed by the defendant. The defendant's contention was that it was a party wall and there shall be no ventilator for opening without his concurrence. Since the plaintiff claimed the right to light and air through the ventilator and resisted any attempt of the defendant to close the openings, he claimed it as a matter of easement. The trial Court found that 20 years enjoyment of the right had not been established and dismissed the suit. In the Appellate Court, the reversal took place by a reasoning of the Judge that there had been proof that the plaintiff's house was constructed in the year 1962 itself and 20 years had elapsed at the time of institution of the suit to justify an action for injunction. The case is brought before this Court on the following substantial questions of law:-

(3.) Along with the plaint, the plaintiff has submitted a plan, which shows that the thick line XY shown in red colour is a wall that runs along the entire north to south boundary between the plaintiff and the defendant's house. The XY wall is the eastern most wall and it includes three rooms of the plaintiff that run along the XY wall. East of the property is the house of the defendant and adjoining the wall is open courtyard of the defendants' house. The attempt for injunction was made on a contention that it is a party wall and therefore, the plaintiff cannot have any opening or ventilation in such wall. The plaintiff would contend that if an assertion is made that it is a party wall itself, the defendant has to establish so and it is in relation to an exclusive wall belonging to the plaintiff. The party wall does not mean a common ownership to both parties. It admits of four different meanings and the Black's Dictionary, 6th Edition defines thus:-